Re Boyter[2016] QMHC 8

MENTAL HEALTH COURT

1. [1]
   BODDICE J:  By notice of reference, filed 10 September 2014, Legal Aid Queensland referred to this Court the mental condition of Christopher Lee Boyter at the time of an alleged offence of unlawful stalking between 20 April 2013 and 19 June 2013. 
2. [2]
   At issue is whether the defendant was of unsound mind at the time of the alleged offence and whether he is permanently unfit for trial.  A preliminary issue is whether there is a dispute relating to a fact that is substantially material to the opinions expressed by the reporting psychiatrists, such as to give rise to a dispute within the meaning of s 269 of the Mental Health Act 2000 (Qld) (“the Act”). 

Background

3. [3]
   The defendant was born on 5 March 1987.  He suffers from life long significant intellectual impairments.  He is the recipient of a disability pension as a consequence of his intellectual disability.  Subsequent to the alleged offence he was placed on psychotropic medication for a mental illness.  That mental illness was given a provisional diagnosis of schizophrenia.  The reported symptoms included hearing voices, which gave commands to do the acts the subject of the alleged offence.
4. [4]
   The alleged offence involved approaching the female complainant, following her, sending text messages requesting that the female complainant meet with him, staring at the female complainant while she was travelling in a bus and peering at her for extended periods of time whilst she was at her workplace.

Reporting psychiatrists

5. [5]
   Dr Butler interviewed the defendant on 18 March 2014.  At that stage, the defendant had been receiving mild doses of psychotropic medication for approximately 12 months.  The defendant reported he was prescribed this medication after he reported hearing a voice which disturbed his mood and caused him to have violent outbursts causing damage to property.  The voice told him “to do stuff”.  He described the voice as primarily female and as frightening and compelling in its intensity.  The emotional stress caused by the voice had become so distressing he had experienced suicidal ideation.  He denied other significant psychotic phenomena.  He reported that the commencement of psychotropic medication had resulted in a reduction in his symptoms such that he now experienced only an occasional voice of significantly less intensity.
6. [6]
   The defendant gave Dr Butler limited information as to his past history.  That limited information included that he had not lived with his biological mother since the age of five, that there was a history of schizophrenia in his family and that in most of his childhood years he lived in a household with significant drug use.  The defendant reported using marijuana on a regular basis in his late teenage years. 
7. [7]
   The defendant told Dr Butler he left school at a relatively early age, having attended a special school because of illiteracy and innumeracy.  He reported being diagnosed with an attention deficit hyperactivity disorder.  He reported having difficulty concentrating and that he had been bullied at school.  In more recent years, the defendant had lived with a carer and the carer’s girlfriend.  They provided supervision with respect to money and day‑to‑day affairs.  They also set limits upon potentially problematic social behaviour.
8. [8]
   The defendant reported having developed a relationship with a female in the past.  He denied any recurrent predilection for engaging with or paying attention to other females.  However, his carer’s girlfriend advised Dr Butler there had been a pattern of past behaviour not dissimilar to that in the charge of stalking.  The defendant often stared at girls in the past.  This had reduced whilst he was in his relationship with his girlfriend.  The staring behaviour worsened considerably after the separation with his girlfriend.  The carer’s girlfriend believed the defendant lacked social awareness of how to behave appropriately with girls.  She and her boyfriend had recently become concerned by the defendant’s staring behaviour and unsolicited advances.  They had also become alarmed to observe he had put naked photographs of himself on the internet.  They had been forced to remove those photographs from the site and to prevent ongoing Facebook friendships with underage females.
9. [9]
   Dr Butler opined that the defendant primarily suffered from an intellectual development disorder of moderate severity.  This disorder impacted on his capacity to manage his finances and attend to daily activities.  He often required a high degree of supervision.  He also displayed immaturity in social connectedness and in the development of relationships, in particular with members of the opposite sex.
10. [10]
    Dr Butler further opined that the defendant suffered from a psychotic illness which is presumptively indicative of schizophrenia.  The presence of voices and persecutorial fears suggested a psychotic illness had developed in the preceding 12 to 18 months.  The intrusive nature of the voices of a moderate intensity had influenced the defendant’s behaviour due to both their command nature and the frustration and angst caused by their persistence.  Those psychotic were now largely in remission.  The persistence of inappropriate social behaviour in the absence of such significant psychotic symptoms underscored the perpetuating role of the intellectual development disorder.
11. [11]
    Dr Butler opined that at the time of the alleged offence the defendant was suffering both a mental disease and a natural mental infirmity.  His behaviour was a manifestation of his intellectual impairment and his inability to mentalise with respect to the emotions and needs of others.  The defendant was unable to understand he ought not do the acts.  The defendant’s capacity to know he ought not do the act was further compromised by the voices associated with his mental illness.  As a consequence the defendant was deprived of that capacity at the time of the alleged offence. 
12. [12]
    Dr Butler opined that the incessant nature of the voices were such that the defendant was unable to control his actions.  He was unable to resist the commands associated with those voices.  However, the primary cause of the deprivation of that capacity was the mental illness rather than the intellectual capacity. 
13. [13]
    Dr Butler opined that the defendant’s capacity to understand his behaviour was impaired by his mental illness and natural mental infirmity but those conditions were not sufficient to have deprived him of that capacity.  Dr Butler noted there was no suggestion the defendant was suffering from any intoxication at the time of the alleged offence. 
14. [14]
    Dr Butler accepted in evidence that the defendant’s intellectual disability prevented him from understanding that what he was doing was likely to cause distress.  This lack of reasoning capacity in itself probably would have been enough to deprive him of the ability to know he ought not do the act.  However, the deprivation was compounded by the psychotic process.  Dr Butler did not consider the prior reports of staring at females was evidence of a psychotic condition.  Dr Butler considered the defendant probably had a pre-disposition to that behaviour as a consequence of poor understanding of interpersonal interactions.  It was a manifestation of very poor judgment.  Accordingly, any ongoing inappropriate behaviour is unlikely to be linked to any psychotic process. 
15. [15]
    Dr Butler further opined that the defendant was fit for trial.  The charge was not complex and the elements and narrative were straight forward and understandable.  The defendant, notwithstanding his mental illness and natural mental infirmity, was able to understand the nature of the evidence against him and the requirement to plead to that charge.  With perseverance, patience and simplification the defendant would be able to follow proceedings satisfactorily.  The risk of decompensation due to the process of a trial is reduced if the trial is short. 
16. [16]
    In evidence, Dr Butler accepted there was no reliable history of a psychotic process.  However, there was a sufficient history of having heard voices such as to support the presence of a significant phenomena at the time of the alleged offence.  Dr Butler accepted that opinion was based on acceptance of the truthfulness of the defendant’s account.  Dr Butler accepted there was evidence of the defendant having lied in other respects but considered it unlikely, having regard to his intellectual handicap, that his account could be explained by falsification of that account. 
17. [17]
    In respect of fitness for trial, Dr Butler accepted the defendant’s functional incapacities meant he would require significant modification to the Court processes to make sure he understood each step of that process.  Whilst the defendant’s social functioning was commensurate with his intellectual impairment, the provision of extra assistance in Court would ensure that he was fit for trial.  The structure of the trial process itself enhanced that fitness.  Any confusion would be met by extra patience and reiteration of the functions.  As the defendant no longer entertained the previously held delusional beliefs, it was unlikely his involvement in the trial process would be affected by any delusional disorder. 
18. [18]
    Dr Kovacevic examined the defendant on 31 July 2015.  Dr Kovacevic had the benefit of Dr Butler’s report.  Dr Kovacevic opined that the defendant had a mild intellectual disability which could be regarded as a natural mental infirmity.  His brief cognitive examination revealed a presentation consistent with a previously reported low IQ of 61.  As a consequence, the defendant was functionally impaired to a moderate degree and required considerable support and supervision in the community.  Dr Kovacevic queried whether the defendant may suffer from a genetic condition known as Fragile X syndrome.  However, subsequent testing did not confirm the existence of that condition. 
19. [19]
    Dr Kovacevic considered the question whether the defendant suffered from a major psychiatric disorder was complicated.  Whilst the defendant had reported psychotic like symptoms over a period of approximately two years and had been prescribed anti-psychotic medications, he was unable to give a consistent account of any psychosis at the time of Dr Kovacevic’s examination.  Further, the defendant admitted during the course of that examination that he had fabricated symptoms in the past. 
20. [20]
    Dr Kovacevic opined there were no objective signs of any psychotic symptomology.  In his opinion, the defendant did not suffer from a schizophrenic illness or any other major psychiatric disorder.  Dr Kovacevic further opined that the defendant was not, at the time of the alleged offences, deprived of any of the relevant capacities, by reason of natural mental infirmity or mental illness.  The defendant retained some ability to understand and control his behaviour and appreciate the wrongfulness of his conduct. 
21. [21]
    In Dr Kovacevic’s opinion, the defendant was permanently unfit for trial as a consequence of his natural mental infirmity.  The defendant lacked sufficient functional capacities to meaningfully participate in Court proceedings, understand the evidence presented, follow and comprehend the trial and meaningfully instruct his legal representatives. 
22. [22]
    In evidence, Dr Kovacevic disagreed with Dr Butler’s assessment of the existence of a psychotic illness.  In his opinion, there was no evidence at all of any psychotic symptoms prior to the presentation to a psychiatrist subsequent to the offence.  The presentation to that psychiatrist was in the context of a criminal charge.  Further, the defendant presented reporting a single psychotic phenomena, voices that are commanding, which required a degree of scepticism.  In response, the psychiatrist started the defendant on a low dose of anti-psychotic medication with no follow up. 
23. [23]
    Dr Kovacevic opined that, against that background, there were no objective signs of schizophrenia and no evidence of ongoing psychosis.  It is not difficult for a person who has previously lied about his symptoms to create a defence of mental illness.  It is also unlikely the taking of a small dose of an old anti-psychotic medication would be enough to treat schizophrenia effectively. 
24. [24]
    Dr Kovacevic also disagreed with Dr Butler’s opinion that the defendant’s intellectual capacity alone was sufficient to have deprived him of the capacity to know he ought not do the acts in question.  The defendant’s intellectual incapacity was not so severe that he would not be able to understand the rightness or wrongness of doing such acts.  Even if there was a psychotic process present, it would not, alone or in combination with the intellectual impairments, have been sufficient to have caused a deprivation of that capacity or of any other relevant capacity. 
25. [25]
    In giving this opinion, Dr Kovacevic noted there was a history of similar behaviour over a number of years.  This pattern of behaviour pre-dated the alleged offence and continued to occur following the alleged offence.  That pattern was not related to any single or particular victim.  It was random in nature.  It happened, in public, in various places.  Such a scenario was not consistent with any particular delusion.  It was consistent with a generalised issue. 
26. [26]
    In evidence, Dr Kovacevic noted his primary concern in respect of fitness for trial was the defendant’s ability to follow proceedings and respond appropriately.  Dr Kovacevic’s brief cognitive examination revealed very severe cognitive impairments, consistent with those noted on Dr Butler’s examination.  Significantly, those tests related to memory and executive function.  The results suggested the defendant would have great difficulty in actually being able to understand and recall evidence so as to meaningfully participate in any Court proceedings.  The results were consistent with a person with a IQ of 61, although Dr Kovacevic would have expected a person with an IQ of 61 to have performed a little better on those tests.  Dr Kovacevic did not consider the defendant had contrived his results.  The defendant had performed very similarly on both occasions and the results were not inconsistent with his background, measured IQ and general functioning abilities. 

Submissions

27. [27]
    The defendant’s legal representative submits that Dr Butler’s opinion ought to be preferred in relation to the question of unsound mind.  On that basis, the Court ought to find the defendant was of unsound mind as he was, at the time of the alleged offence, deprived of the capacity to know he ought not do the act by his intellectual impairment, even if there was no finding of a psychotic process.  In any event, the Court would find the defendant permanently unfit for trial. 
28. [28]
    The Director of Public Prosecutions submits the Court would not find the defendant was of unsound mind.  There was no clear or convincing evidence of the existence of any psychotic process and the defendant’s intellectual impairment alone was not sufficient to deprive him of any of the requisite capacities.  The Director submits the Court would prefer the opinion proffered by Dr Kovacevic on this issue.  The Director submits the Court also would find the defendant fit for trial.  Whether the defendant is able to give evidence is not a relevant consideration.  The issue is whether the defendant has the ability to make out a defence at all. 

Assisting psychiatrists

29. [29]
    Dr Harden advised the defendant was a complicated presentation diagnostically.  However, there is no doubt the defendant has life long intellectual impairments.  Some of the features are consistent with an additional impairment in an ability to appreciate social rules and interactions.  There were aspects consistent with autistic features.  In addition to those issues, there was the issue of whether there was a separate psychotic disorder or process. 
30. [30]
    Dr Harden advised the evidence was not sufficient to establish firmly there was such a psychotic process.  Even if it was present, it would seem more to be relevant to the identification of the victim rather than the defendant’s actions, which were consistent with the responses of an incompetent suitor, not uncommon in young men with developmental disabilities.  Dr Harden advised the defendant was, however, permanently unfit for trial.  Dr Kovacevic’s opinion on fitness was persuasive and accorded with the test results and associated material. 
31. [31]
    Dr Phillipson agreed with Dr Harden.  He advised there was not sufficient evidence to establish the presence of a psychotic illness.  The defendant’s intellectual disabilities, whilst impairing the relevant capacities, were not sufficient to have deprived him of any of the requisite capacities.  Dr Phillipson advised the defendant should be considered permanently unfit for trial.  In this respect, the opinions expressed by Dr Kovacevic were consistent with the collateral evidence. 

Discussion

Dispute of fact

32. [32]
    A consideration of the material as a whole raises questions as to the accuracy of the defendant’s account of hearing voices at the time of the alleged offence.  An acceptance of the accuracy of that account is central to the opinion expressed by Dr Butler as to the existence of a mental illness. 
33. [33]
    Whilst such a doubt may, on occasions, give rise to a dispute of fact within the meaning of s 269 of the Act, I am satisfied no real dispute arises in the present case. ^[1]  There is no objective evidence that the defendant was suffering such symptoms at the time of the alleged offence.  The defendant’s account of such symptoms is also inconsistent with the collateral material and the response of the psychiatrist to whom he first reported those symptoms. 

Unsound mind

34. [34]
    There is no doubt the defendant has life long intellectual disabilities.  As a consequence, he suffers from significant impairments to memory and executive functioning.  I accept his responses are, in some respect, consistent with autism features.  They are also consistent with very limited social skills. 
35. [35]
    Whilst I accept the defendant’s intellectual impairments would, in themselves, impair each of the defendant’s relevant capacities, I do not accept those intellectual disabilities were sufficient to deprive the defendant of any of the requisite capacities.  The history provided by the defendant’s carer and his carer’s girlfriend is consistent with longstanding inappropriate behaviour in respect of females.  That behaviour is similar in nature to the alleged offending behaviour.  The evidence suggests the defendant has an awareness of the wrongness of that conduct.  That awareness, whilst limited due to his intellectual disabilities, is inconsistent with a deprivation of capacity on the basis of intellectual impairment alone. 
36. [36]
    I do not accept Dr Butler’s opinion as to the sufficiency of the intellectual impairments alone to deprive the defendant of at least one of the requisite capacities.  That opinion is not consistent with the history or collateral material.  I accept and prefer Dr Kovacevic’s opinion in relation to the significance of those intellectual impairments in relation to the question of unsound mind.  That opinion is consistent with all of the collateral material, including the history of behaviour, both before and since the alleged offence. 
37. [37]
    I also do not accept Dr Butler’s evidence that the defendant was suffering a mental illness at the time of the alleged offence.  I did not find Dr Butler’s evidence in respect of the question of a psychotic process persuasive.  It is significant the defendant first raised the presence of voices only after he had been charged with this offence.  There is evidence the defendant has in the past given false accounts in order to give a false history.  Having regard to his past history, there is a significant risk the presence of voices is a concoction on the part of the defendant. 
38. [38]
    Even if there was no basis to find concoction, I am satisfied there was no sound basis to conclude there was present, at the time of the alleged offence a psychotic process or that any such psychotic process deprived the defendant of any of the requisite capacities.  I found Dr Kovacevic’s evidence on this aspect very persuasive.  I accept that evidence. 
39. [39]
    I am satisfied the defendant’s alleged offending behaviour was consistent with longstanding past behaviour towards females and the defendant’s subsequent behaviour since the alleged offence, which continued after the subsidence of his previously reported psychotic symptoms. 

Fitness for trial

40. [40]
    I also accept and prefer Dr Kovacevic’s opinion in respect of fitness for trial.  That opinion is consistent with the collateral information and the results achieved in the testing undertaken by both Dr Butler and Dr Kovacevic.  By contrast, Dr Butler’s opinion was inconsistent with the collateral information and test results. 
41. [41]
    The results of the testing undertaken by Dr Butler and Dr Kovacevic revealed particular deficits in both memory and executive functions.  Both matters are significant when considering the ability to make out his defence and to instruct Counsel.  The very significant deficits in memory make it highly unlikely the defendant would be able to properly recall, understand and process the evidence in the course of a trial so that he may properly instruct Counsel in respect of that evidence. 
42. [42]
    Both matters are also very significant when considering the ability to make out his defence.  An ability to make out a defence is not concerned with the quality of the defence.  It concerns the ability to make a defence at all.  I am satisfied the significant deficits in memory and executive function render the defendant unable to make out a defence in all the circumstances.  Such a conclusion supports a finding the defendant is permanently unfit for trial. 

Future management

43. [43]
    Both reporting psychiatrists and both assisting psychiatrists opined there is a need for a forensic order.  I accept those opinions and that advice.  The defendant’s behaviour is of concern.  At the time of the alleged offence, as well as prior to and after the alleged offence, he has engaged in behaviour indicative of a need for monitoring and supervision in the future. 
44. [44]
    Without that monitoring and supervision the defendant presents significant risks to members of the public, particularly females.  The material also indicates concerns in relation to the defendant’s current accommodation and the sufficiency of ongoing monitoring and support. 

Orders

1. At the time of the alleged offence the defendant was not of unsound mind within the meaning in the Schedule to the Mental Health Act 2000.
2. The defendant is unfit for trial and that unfitness is of a permanent nature.
3. The defendant be detained, pursuant to a forensic order Mental Health Court – Disability to the Mackay Authorised Mental Health Service.
4. Limited community treatment be approved, at the discretion of the authorised psychiatrist, on the terms and conditions set out in the draft proffered by the Director of Mental Health.
5. Copies of the reports and of the transcript be provided to the parties, to the treating team, to the Mental Health Review Tribunal and to the Attorney-General.