Re Earle[2016] QMHC 9

MENTAL HEALTH COURT

1. [1]
   Ms Earle is charged with the murder of her son, Brandon Le Serve, on 19 December 2013.  No party contended that Ms Earle was of unsound mind at the time of the offending.  In those circumstances, I make a finding that she was not of unsound mind at the time of the offending.  Similarly there is no doubt that she is fit for trial, and I make that finding.
2. [2]
   The issue before the Court was whether or not Ms Earle was liable to be convicted of manslaughter only by virtue of s 304A(1) of the Criminal Code (Qld) (the Code).  That section provides:

“304A Diminished responsibility

3. (1)
   When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.

…”

3. [3]
   The matter comes before the Court pursuant to s 267(1)(b) of the Mental Health Act 2000 (Qld) (the Act) which provides that on the hearing of a reference:

“if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed – decide whether the person was of diminished responsibility when the alleged offence was committed.”

Psychiatric Evidence before the Court

4. [4]
   I had reports from Dr Angela Voita dated 10 September 2014 and, by way of addendum, 27 April 2015 (Dr Voita’s first report and Dr Voita’s addendum report).  I also had a report from Dr Mark Schramm dated 25 June 2015.  He had both of Dr Voita’s reports. Dr Schramm clarified his report in a short letter dated 19 August 2015. I had a report from Dr Pamela van de Hoef dated 26 July 2015.  Dr van de Hoef had both of Dr Voita’s reports.  After killing her son Ms Earle attempted suicide and was taken to hospital where she was examined by Dr Turner.  I heard evidence from her, and all the reporting psychiatrists.
5. [5]
   During the course of evidence on 14 December 2015, it became clear that there would be records from general practitioners and pharmacists, and a psychiatrist who had treated Ms Earle in the past, which might substantiate her claims as to suffering from significant depression for many years, and as to that having increased in the time before the offending.  Given the potential significance of that information I left it to counsel for Ms Earle as to whether or not he wished the Registry to subpoena that material.  He replied that he did and so it was obtained and distributed to all four psychiatrists.  They gave supplementary reports dealing with that material.
6. [6]
   Next, on 1 April 2016 the Registrar circulated a document prepared by the DPP, drawing the attention of all the psychiatrists to factual discrepancies in Ms Earle’s account of events surrounding the offending.  All the psychiatrists responded that they did not change their opinion in view of those matters.^[1]
7. [7]
   So far as these factual discrepancies were concerned, none of the psychiatrists who reported to the Court or gave evidence felt that they were so significant they could not form an opinion in the case.  It was not put to any of the psychiatrists that the facts were so uncertain that they could not form an opinion in the case.  While counsel for the DPP did seek to pursue this point, he accepted that he had not put that to any of the psychiatrists during their evidence – t 1-18 and he conceded that, had it been put, they would have rejected that – see t 1-18 and t 1-22.
8. [8]
   In my view, if a party wishes to rely on s 269 in circumstances where the psychiatrists themselves do not say that the facts are too uncertain for them to form an opinion, the matter must be specifically raised in evidence with the psychiatrists.  None of the psychiatrists here felt that the facts were too uncertain to form an opinion, and I cannot see any room for the operation of s 269.  I add for completeness that there was no doubt within the meaning of s 268 that the offence of murder was committed.

General History

9. [9]
   Dr Voita’s first report was pursuant to s 238 of the Act dated 10 September 2014.  It is unusually detailed and comprehensive compared to most reports received pursuant to this section.  She states at the beginning of her first report that she had been Ms Earle’s treating psychiatrist from 23 December 2013, that is very shortly after the offending, and still was Ms Earle’s treating psychiatrist as at the date of the report.  She had assessed Ms Earle on more than 20 occasions as at the time of the first report, and she separately and formally interviewed her for the purpose of writing the report.  Ms Earle was at the time an in-patient at the High Security In-patient Unit at Wolston Park.
10. [10]
    Ms Earle worked as an endoscopy nurse at a hospital.  She worked 10 hour shifts about four times a week.  Ms Earle reported a family history of mental illness – her father was an alcoholic and her sister developed anorexia nervosa.  She herself saw psychologists during primary school, apparently because she was shy and socially withdrawn.  While she had never accessed Mental Health Services as an adult, she revealed a long history of anxiety, low self‑esteem, sensitivity to negative evaluation by others and recurrent depression since early adulthood.  In relation to that latter complaint, she reported post‑natal depression after the birth of her son Brandon in 1995, followed by increased anxiety and the development of obsessive compulsive traits.  She sought assistance from her general practitioner and three years later was referred to a psychiatrist, who saw her intermittently over a period of five years.  She was prescribed an antidepressant, and remained on that medication until her admission under Dr Voita’s care.
11. [11]
    Ms Earle reported to Dr Voita that she had suffered a burden of stress, guilt and shame related to her son Brandon such that she had passive suicidal ideation since 2012 associated with this.  She reported that since 2012 she had been abusing Panadeine Forte on a daily basis and drinking two to three standard drinks several days a week in response to this stress and anxiety. 
12. [12]
    Dr van de Hoef’s report notes an almost identical history from Ms Earle.  Dr van de Hoef added that Ms Earle’s mother had been treated for anxiety and depression and that her sister had been treated psychiatrically.  Ms Earle told Dr van de Hoef that her father claimed to be a gardener at a psychiatric hospital but was actually a patient there.

History relating to Brandon

13. [13]
    Ms Earle reported to Dr Voita that she met her husband, Brandon’s father, when she was 25.  She described him as her first boyfriend and said she stayed with him because she thought she could “not do any better”.  Her mother did not approve of the relationship.  He was a heavy user of marijuana.  Brandon was born when she was 28.  He was the only child of the marriage.  When Brandon was in his first year her husband was arrested for indecent assault of a 15 year old girl.  She left her husband, lived with her mother for a while, reunited with her husband, however, left him permanently a couple of years later.  She had had only one short sexual relationship since then.
14. [14]
    Ms Earle described that Brandon had difficulties from an early age at school.  He did not socialise and she took him to a psychologist who offered her view that the child had Asperger’s disorder.  After the end of Brandon’s Grade 9 year at school Ms Earle moved with him to the Gold Coast to attempt a fresh start due to his not fitting in at school.  Brandon completed Grade 10 but then refused to take part in any further work or education.  He spent his days in their unit, occupying himself with what Ms Earle described as creative writing.  Brandon would not see a doctor although Ms Earle was concerned that he suffered from autism, he would not register as unemployed and did not socialise in any way.  This situation really remained the same until the time of his death at age 18. 
15. [15]
    Perhaps around a year before his death Brandon became interested in the Marquis de Sade.  He apparently became obsessed with this figure, and declared that he was a paedophile.  He spent increasing time on the computer.  He visited sites associated with paedophilia.  He posted his own creative writing on such sites.  He began painting a series of canvasses with sexual themes.  Ms Earle tried to dissuade him from these activities, explaining to him that the police would be monitoring his activities.  She could not persuade Brandon to desist from this behaviour.  Ms Earle reported to Dr Voita that Brandon would respond to her admonitions that the police would detect his behaviour by saying that, “If they come to get me I’m going to kill myself”.  Further, that he had been researching suicide methods on the internet and that he was thinking about using a knife to cut his own throat.
16. [16]
    Ms Earle said she became increasingly distressed.  She said she functioned at work but, in the six months prior to Brandon’s death, became more and more emotional, once crying uncontrollably at work.  In the year before the death she was taking four Panadeine Forte tablets at night to assist her to go to sleep and was taking two during the day for headaches.  She had no social outlets apart from caring for her dog – walking in the park.  She sometimes took Brandon to theme parks and they enjoyed this.  She told Dr Voita that she had been taking increasing doses of her antidepressant in the two weeks prior to Brandon’s death.  She had never had a good appetite but reported that she had even less appetite in the eight months before Brandon’s death. 
17. [17]
    Ms Earle gave a similar history to Dr van de Hoef.  Dr van de Hoef has perhaps recorded more details relevant to Brandon.  She records that Ms Earle noticed he was different from other children from about age three.  He refused to go to playgroup.  He screamed at the local neighbourhood children, perhaps at their bare feet.  He hated school.  He did not want other children to touch his things.  He loved creative writing at school but never played sport.  He was never violent and always kind to animals.  He was apparently diagnosed with obsessive compulsive disorder at age 11.  He did not use drugs or alcohol.  She thought he was depressed.  He did no household chores.  She said that she and Brandon feared that he would not cope if he were put in prison and that he talked “continually” of suicide in the months before his death.  She emphasised to Dr van de Hoef that she loved Brandon.

Immediate Precursors to Offending and Offending

18. [18]
    Ms Earle told Dr Voita that on 18 December 2013 she left work at around 6.30 pm and was feeling emotional.  While she was walking home, the police rang her mobile phone and asked her to come home as they were at her house and “had her son”.  At the house a policeman told her they had forced entry via the front door and handcuffed her son.  She could hear Brandon calling out that he would kill himself.  Inside the house he was on the floor and not making any sense.  He was asserting his views about the Marquis de Sade and et cetera.  The police photographed Brandon’s artwork and took his computer and camera.  Ms Earle told Dr Voita that she could not sleep that night. 
19. [19]
    The next morning, summonsed by police, she collected Brandon from the watch-house at about 9.00 am.  I interpolate that it was in fact later than this.  He had been charged with 19 counts of child pornography and one count of assaulting police.  He was to appear in Court in February.  From the watch-house Ms Earle took Brandon to Australia Fair where he declared that he would eat his “last meal”.  Ms Earle said that Brandon repeatedly talked of suicide and said he could not go to jail because of what would happen to him as a paedophile.  Ms Earle said that Brandon started grabbing knives.
20. [20]
    Ms Earle said she had stolen “a euthanasia kit” from the hospital where she worked so that she could euthanase her dog (she told Dr van de Hoef it had been ailing for the previous six months).  Inconsistently with this, Ms Earle said that she went to the hospital to get supplies which could be used to kill Brandon “just in case”.  She told Dr Voita that she believed Brandon wanted this or otherwise he would kill himself and it would be “messy”.  She did not want him to use a knife.  She decided that if “Brandon had to go” she and the dog would also “have to go”. 
21. [21]
    Ms Earle said that when they arrived home from Australia Fair Brandon wrote a suicide note.  She put a cannula in his arm and set up a drip containing drugs she had taken from the hospital.  She watched him die over one hour.  Then she made an appointment with a vet to euthanase the dog.  The vet picked her and the dog up, euthanased the dog and then dropped her home.  She then wrote a suicide note and inserted a cannula in her own arm.  She set up a drip containing Propofol and some other drugs.  She took some Panadol as well.  Her ex-husband rang after this and she told him what she had done.  He called an ambulance but when the ambulance telephoned her she told them it was a wrong number.  Ms Earle remained conscious and became increasingly desperate, she said, to die.  She took a large number of antidepressant tablets and then went to the beach in order to drown herself.
22. [22]
    Even though her version of events to Dr Voita was unreliable in relation to this, Ms Earle did not dispute the police material showing that she attended the hospital and stole drugs and equipment the night prior to Brandon’s death.  She told Dr Voita that she must have done so because she feared the materials she had already taken to euthanase the dog would not have been sufficient.  The version which Ms Earle gave to Dr van de Hoef also included her plan to euthanase the dog and hazy and contradictory details as to when the drugs and equipment had been taken from her workplace.  At one point she told Dr van de Hoef that on 19 December 2013 she stole drugs and equipment from the hospital because the dog was yelping and the computer was failing.
23. [23]
    Dr van de Hoef gave a similar account in other respects to the time immediately preceding Brandon’s death, but included reference to a telephone call to Brandon’s father, during which Brandon called out, “Good bye Dad for the last time”.  Dr van de Hoef was told that Brandon referred to an anaesthetist they knew of who had suicided using anaesthetic drugs and asked, “Could you help me?”  Ms Earle told Dr van de Hoef that she and Brandon had talked for hours and that she told him that if he were to die both she and the dog would have to follow.  She told Dr van de Hoef that she covered Brandon with a blue sheet after his death and put flowers around his face. 
24. [24]
    Dr van de Hoef had more information than did Dr Voita from the police, ambulance and other witnesses.  The police had evidence that Ms Earle went to the Gold Coast University Hospital at 11.00 pm on 18 December 2013.  She changed into her theatre scrubs, took equipment and drugs, put these in a bag, changed back into her street clothes and returned home by taxi.  By the morning of 19 December 2013 Ms Earle had told a dishonest story to her workplace (fractured ribs) to account for her not attending work that day.  Neighbours who bumped into Ms Earle on the 19^th described her as not upset and said they did not notice anything wrong.  Police who dealt with Ms Earle on 19 December remarked that she sounded “upbeat and happy”; that was noted as a stark change in her demeanour from the previous day.  Dr van de Hoef said that all this evidence, “leads me to suspect Kim Earle decided as soon as she knew of Brandon’s arrest to commit an ‘assisted suicide’ of her son and her own suicide”.
25. [25]
    Kim Earle’s ex-husband had indeed rung the ambulance to report that she had telephoned him sounding, “out of it” and that she was trying to kill herself and Brandon was already dead.  The Queensland Ambulance Service contacted Ms Earle and she succeeded in making them think that information was a mistake.
26. [26]
    Ms Earle rang the police after her unsuccessful attempts to drown herself, confessing to having killed her son.  She was distraught and spoke of her son’s Asperger’s Syndrome and his arrest.
27. [27]
    Brandon left a letter, which is described by Dr van de Hoef as not a typical suicide note – t 1‑75.  It is addressed to “Dear Society” and, in Dr van de Hoef’s words, “is remarkable for its grandiose, persecutory and angry sentiments … it included a multitude of trite and sweeping statements about history, religion, world leaders and the stupidity of laws.”  It was clearly written after his arrest.  Brandon refers to himself as a fly about to be swatted and as being on his death-bed and claims that society’s “mindless laws” had killed him.  Dr van de Hoef comments that it is difficult to be sure whether this note indicated that Brandon was actually suffering from a paranoid psychosis which she accepts is a possibility, or rather represented “a rant by an extremely immature, autistic (or very self‑centred), uneducated and marginalised young man venting enormous frustration.”  The note does not mention any intention to take active steps to kill himself and it does not mention that he agreed to Ms Earle killing him.  Dr van de Hoef remarks upon that saying, “Those inclusions might have assisted his mother now; he did not even mention her.”
28. [28]
    Dr van de Hoef reported that Ms Earle said that Brandon was 165 cm tall.  He was 18 years old and she was a small, thin woman.  Given that the drug was administered by an infusion, not an injection, and thus took time, Dr van de Hoef thought “at the very least, he did not resist her and [he] may well have co-operated”. – t 1-64.  In her report she had made the same point:

“It seems to me that given the discrepancy in size between Kim Earle and her son, his previous avoidance and disdain for medications, his tendency to oppose her, and the reference in his letter to being ‘on his death bed’, it is unlikely the injection/infusion administered to Brandon Le Serve could have occurred without his cooperation.”

Dr Turner

29. [29]
    Police took Ms Earle from the beach to the emergency department of the Gold Coast Hospital.  There she was examined by Dr Turner, a psychiatrist, at around 4.30 pm on 20 December 2013.  Dr Turner assessed Ms Earle as a lady with significant childhood trauma, significant personality vulnerabilities and significant anxiety throughout her life, as well as possible periods of depression, including post‑natal depression.  Ms Earle told Dr Turner she was taking antidepressant medication.  She told Dr Turner about her son’s focus on the Marquis de Sade and pornography in his artwork and writing, and her concerns that her son would be found by the police.  She reported financial stressors and working 10-hour shifts at work.  She told Dr Turner she was concerned that her son would not survive jail and that her son made comments that he would kill himself rather than going to jail. 
30. [30]
    Ms Turner found that Ms Earle was alert and oriented and that she was tearful at times during the interview – t 1-10.  Dr Turner described her thinking as catastrophic or nihilistic – t 1-10.  She saw no evidence of psychosis.  Ms Earle told her she intended to suicide in the future.  She described her as being overwhelmed and she drew a connection between the significance of Brandon’s arrest and the arrest of Ms Earle’s husband years before – t 1-11. 
31. [31]
    Dr Turner thought that while Ms Earle was very distressed, there was still reactivity and some warmth in her affect – t 1-10.  To Dr Turner Ms Earle denied any significant problems with concentration, memory, appetite or weight.  She spoke of her shame at what neighbours and workmates would think of her and her son after the arrest – tt 1‑14‑15.  She said she felt that both her son’s life and her life were over because of his arrest – t 1-16.  She reported getting enjoyment from her work and the social aspect of work and told Dr Turner that she had been “the best she had [been] for some time over the past couple of months” – t 1-9.  Bearing these matters in mind, Dr Turner did not think that Ms Earle was suffering from any significant depressive disorder at the time she saw her – tt 1-26-27.
32. [32]
    As to Ms Earle’s physical condition on 20 December 2013, there is no doubt that Ms Earle ingested a great number of tablets.  There is also no doubt that she infused at least the anaesthetic Propofol and insulin through a drip in an attempt to kill herself.  There is certainly no doubt the suicide attempt was serious and Dr van de Hoef in her evidence noted that medical investigations at the hospital after her arrest showed an amount of Troponin in her blood, showing that she had some death of cardiac muscle – t 1-66.  Dr van de Hoef said she thought the drugs which Ms Earle administered to herself might well have killed her – t 1-66.
33. [33]
    Ms Earle left a handwritten note saying, “He wanted to die and I ended his suffering, he is at peace now”, as well as a note addressed to her ex-husband.  That concerned Brandon’s wish to die and her having ended Brandon’s suffering.  It mentioned what the police “put him through” and how she was sure that they could never move forward after his paedophilia charges.  She left a further note saying that she did not want any mechanical ventilation or treatment in ICU and that she was to be let go because there was “no future for her”. 

Dr Voita’s Treatment at The Park

34. [34]
    As noted, Dr Voita treated Ms Earle from 23 December 2013.  She describes her as depressed, labile and at times unable to stop crying after admission.  She was actively suicidal and regretful that she had not succeeded in killing herself.  She lost weight in the first few weeks so that nutritional supplementation was necessary.  Her antidepressant dose was initially increased to 300 milligrams a day without benefit.  Then a different antidepressant was tried with only marginal improvement.  Her weight stabilised and her suicidal ideation became passive rather than active: she said she would not suicide whilst in hospital but would wait until she was released and then jump from a building.  Dr Voita thought Ms Earle had made some progress but continued to be depressed and thought her depression was treatment-resistant.  In view of this Dr Voita prescribed a course of 12 doses of ECT in February and March 2014, which did not improve Ms Earle’s mental state. 

Dr Voita’s First Report

35. [35]
    In her first report Dr Voita gave her opinion that Ms Earle was suffering from a mental disease at the time of killing Brandon, namely major depressive disorder of moderate severity.  She noted as well that Ms Earle had personality vulnerabilities with dependent features and had a history of anxiety and obsessive compulsive disorder, both of which appeared to be in remission at the time of the alleged offence.  She also noted that at the time of the killing she also filled the criteria for alcohol abuse and opioid abuse (Codeine).  Dr Voita went on to say:

“If one accepts Ms Earle’s version of events in relation to the alleged offence, in my opinion she was not impaired or deprived of the capacity to know the nature of her actions or the capacity of control.  She was nevertheless impaired but not fully deprived of the capacity to know that she ought not do the act (ie, not assist her son Brandon in killing himself).”

36. [36]
    Dr Voita’s opinion was that:

“Although she was still working full time as a registered nurse in the months leading up to the alleged offence, she reports increased tearfulness and distress and was having difficulties coping and became increasingly socially withdrawn.  Part of the social withdrawal was motivated by a sense of shame about her son’s abnormal behaviour particularly since his interest in paedophilia and Marquis de Sade emerge.  Over a number of years her relationship with her son Brandon became increasingly enmeshed and co‑dependent.  This together with her difficulties in setting limits with him or enlisting professional help for his issues contributed to the tragic events which unfolded following his arrest on the 18^th of December 2013.

…

… In my opinion Ms Earle’s personality vulnerabilities in combination with the depressive illness contributed to her decision making in assisting him to die.”

Dr Voita’s Addendum Report

37. [37]
    In her addendum report Dr Voita reported that during the course of her treatment of Ms Earle it became “increasingly apparent with time that Ms Earle suffered from a significant personality disorder”.  Her antidepressants were gradually reduced and she was put on a mood stabiliser, which she found helpful.  Her weight was restored and she reported an improvement in mood and a resolution of her sleep disturbance problems.  Dr Voita gives details of Ms Earle’s interactions with staff and with young male patients which she sees as part of her personality disorder.  She also notes her continuing anger at police and her blaming police for Brandon’s circumstances.  This extended to her commencing a scrapbook of newspaper clippings about police brutality.  Ms Earle had been discharged from Mental Health Services and back into the general prison population at the time of this report.
38. [38]
    Dr Voita’s conclusions were:

“I remain of the opinion that Ms Earle was suffering from a Major Depressive Disorder at the time of the alleged offence and was also abusing alcohol and codeine.  With further longitudinal assessment it has become apparent though, that Ms Earle also suffers from a Mixed Personality Disorder with borderline, histrionic and dependent features. 

… I am now of the opinion that her motivation for the offence was primarily driven by her personality pathology and not her depressive illness.  Part of the social withdrawal was motivated by a sense of shame about her son’s abnormal behaviour particularly since his interest in paedophilia and the Marquis de Sade emerged.  Over a number of years her relationship with her son Brandon became increasingly enmeshed and co-dependent and she was likely angry at his increasingly abnormal behaviour.

…

It has become apparent during her in-patient stay … that Ms Earle suffers from more significant personality pathology than initially considered.  I am now of the opinion that her offending is primarily driven by her personality pathology and not her mental illness. 

I am now of the opinion that Ms Earle was not substantially impaired of the capacity to know that she ought not do the act by her mental illness. …”

39. [39]
    In clarification of that last comment, in her evidence it became clear that Dr Voita understood the legal position to be that it was necessary that an illness impair capacity for the definition of diminished responsibility to be made out, and that a personality disorder was not an illness – t 1-89. 

Dr van de Hoef’s Report

40. [40]
    Dr van de Hoef thought that Ms Earle suffered from a long‑standing anxiety (from childhood), obsessive compulsive disorder and had a recurrent major depressive episode at the time of the killing, with at least two previous episodes of major depression – one post-partum and one when her marriage failed.  As well, Dr van de Hoef said that she thought Ms Earle had borderline and histrionic personality traits, or may indeed have a personality disorder of these types.  She went on to say:

“I think Kim Earle had an abusive childhood, an abusive marriage, few supports close by, and for 18 years struggled to raise single-handedly an only son who was significantly disabled with an autistic disorder, and unlikely ever to be anything but very dependent on her.  I think until his arrest, she managed remarkably well, …

In my opinion, all of these factors channelled her into a restricted, isolated and chronically stressful life that was largely circumscribed and defined by Brandon’s welfare and protection. … I think she was also blind to the extent, type and severity of his deficits and increasingly lost objectivity in his management, especially in the months after his activities on sado-masochistic and pornographic websites and chatrooms began.  After that, her established ways of occupying and distracting him seemed to lose efficacy, adding to her anxiety and fears of impending doom.

… Brandon’s relatively recent obsession with sado-masochism and child pornography (echoing the history of his father) would have, I think, heightened her sense of anxiety and imminent catastrophe (with various catastrophes existing in her mind – including Brandon being separated from her, his being jailed and raped, his ‘not surviving being jailed’, Brandon attempting suicide by violent means such as stabbing or hanging, and Brandon potentially botching such attempts and ending up brain-dead.)  I think as time went on, and without the sounding boards of friends or family to test her theories, she convinced herself that her ‘all or nothing’, catastrophic thinking was fact – and would inevitably come to pass, with no options or remedy.”

41. [41]
    Dr van de Hoef thought that:

“At the time of the alleged offences Kim Earle was suffering from a recurrent Major Depressive Episode (which is a state of mental disease as defined in section 27 of the Criminal Code) and chronic anxiety, exacerbated by the acute fears she had regarding her son’s pornographic activities and the potential legal consequences of that …

…

She understood I think by stealing the drugs, her beloved professional life as a nurse was finished.  What was irrational in my view were her beliefs about the impossibility of getting Brandon some help, that he would definitely die in prison, and that he ‘suffered’ and was suicidal, because he saw these ‘facts’ just as she did.  The material consistently indicated to me she loved her son his whole life.

…

… She clearly knew and understood the nature of her actions (and planned them, at least in the hours beforehand) and, I think had a fair measure of control over them.  I therefore conclude her depressive illness, and the sudden decompensation on 18/12/2013 significantly impaired, but did not deprive her fully, of the capacity to know she ought not do the act …

…While I concede that personality disordered people decompensate under stress in dramatic ways, I think her mental illness was the more significant factor in the commission of the alleged offence.”

Dr Schramm’s Opinion

42. [42]
    Dr Schramm concluded in his first report that Ms Earle had a lifelong history of marked psychological dysfunction, in particular that she was highly anxious with low self-esteem and that she was abnormally attached to, and dependent on, her mother.  He thought that most of her dysfunction derived from her personality style, which he thought was so marked as to warrant a diagnosis of personality disorder with avoidant traits prominent, but he did not feel that this captured all of Ms Earle’s problems.  He felt that Ms Earle had a pathological attachment to her son Brandon, who may well have had an autistic spectrum disorder.  He also thought that Ms Earle could be considered to suffer from a major depressive disorder at the time of the offending.  He thought that personality factors, including such things as an ingrained tendency to avoidance and pessimism, and an acute reaction to what was unfolding before her constituted an abnormality of mind.
43. [43]
    I find it difficult to be completely convinced by Dr Schramm’s opinions, which are numerous, conditioned, not entirely consistent with each other, and expressed in terms of argument, not conclusion.  Much the same can be said of his evidence which was advocating.^[2]  It was clear that Dr Schramm thought that Ms Earle should be entitled to a defence of diminished responsibility.

Subpoenaed Material

44. [44]
    Subpoenaed material was obtained from two pharmacists and three general practitioners as to Ms Earle’s treatment and prescriptions in the years leading up to the death of Brandon, as well as the psychiatrist whom she initially saw for post-partum depression.  This material was given to all reporting psychiatrists and to Dr Turner.  Dr van de Hoef and Dr Schramm noted a long history of prescription of antidepressant medication, and that it was apparently used, for it was dispensed regularly from pharmacies.  Of note is that the dose of antidepressant medication was increased on 6 July 2012, and that one GP noted on 2 October 2013 that Ms Earle was feeling significant stress in relation to her son whom she reported to the GP had Asperger’s Syndrome and OCD.  It was noted that Ms Earle had been feeling suicidal about this but she had increased her dose of antidepressants and now felt more in control.  There was an earlier note on 1 February 2012 that Ms Earle was worried about her son, who sat at home on the computer mostly writing stories and refused to seek help.  There were other similar notes about her son and his problems.
45. [45]
    In their supplementary report Drs van de Hoef and Schramm note that the material corroborates Ms Earle’s account of chronic anxiety and depressive symptoms and continuous treatment for these problems from at least the late 1990s.  However, it must be acknowledged that the GP records contain little detail that would be of assistance to this Court and certainly no detail which would shed any light upon the severity of the depression as opposed to difficulties caused by personality disorder.  Dr Voita acknowledged that the material confirms Ms Earle’s reported history and medication history.  Dr Turner’s was to the same effect.  No doctor felt that the new material changed their opinions on the case.

Advice of Assisting Psychiatrists

46. [46]
    Dr Sundin found Dr van de Hoef’s analysis of the issues most persuasive.  Dr Sundin referred in particular to Dr van de Hoef’s diagnosis of depression being based on Ms Earle reporting impaired sleep and increasing reliance on Codeine and alcohol to manage her emotional symptoms and her tearfulness at work.  I would add here that loss of appetite is another sign relied upon by Dr van de Hoef in support of her diagnosis.  Dr Sundin thought that the records from the pharmacist and GPs were very helpful.  She thought they supported the presence of a longstanding depressive illness which worsened over the course of 2013 and her advice was that the amount of antidepressant which Ms Earle was receiving was “not insubstantial” in the sense that it spoke to a person who was really quite psychiatrically unwell. 
47. [47]
    Dr Sundin thought that Ms Earle’s depression and Ms Earle’s personality disorder, or major disturbance of personality, really potentiated each other because her avoidant personality traits made her “exquisitely sensitive and reluctant to talk about difficult issues” – t 1-32.  She explained that an avoidant personality was one which avoided conflict, and people who might judge negatively, rather than avoiding people per se.  Ms Earle feared being judged, particularly in relation to her son’s obsession with paedophilia.  Dr Sundin said that this, combined with depression, which would have been “impairing her motivation and volition”, brought about what Dr Sundin considered was an abnormality of mind, which substantially impaired Ms Earle’s capacity to appreciate the wrongfulness of her act – t 1‑29.  Her abnormal state was that she lacked the ability to act rationally in response to the real stresses bought about by her son’s arrest and her son being charged.  Instead, she could only think in “a state of quite catastrophic cognitions, a nihilistic view and overwhelming despair.” – t 1-32.
48. [48]
    Dr Gray did not think that Ms Earle had a personality disorder because she was able to function well in the workplace but, he did consider that her personality structure was intimately bound in with Brandon.  He thought that, combined with the history of depression, bought about what he considered to be an abnormality of mind.

Findings as to Diagnosis and Abnormality of Mind

49. [49]
    On the evidence all the reporting psychiatrists accepted that Ms Earle was suffering from depression at the time of the killing.  The information given to Dr Turner was at variance from the information given to the reporting psychiatrists.  Various attempts were made to explain this.  There was speculation as to whether or not Ms Earle was still suffering some after-effects of Propofol, which can produce a happy and relaxed mood.  By all accounts the examination by Dr Turner was in a disadvantageous situation – Ms Earle was being actively treated in emergency.  I think it must also be remembered that at that point Ms Earle had had very little sleep over two days and must have been through an extraordinary gamut of emotions over the last three days.  I do not think anyone satisfactorily accounted for how she came to report to Dr Turner that she had been feeling better in the last few months and to deny the neuro-vegetative symptoms, such as loss of appetite and poor sleep – symptoms of depression – which she reported to all the other doctors.  Whatever the reason for Ms Earle’s reporting these matters to Dr Turner, I am satisfied on the balance of all the evidence before the Court that it was not because they were true.  I think the truth was as she reported to the three other psychiatrists; she had been suffering from depression which had been worsening towards the time of the offending.  I think that is supported by the material obtained on subpoena and supported to some extent by her behaviour once she was under Dr Voita’s care from 23 December 2013.
50. [50]
    The difference between Dr Voita and Dr van de Hoef was whether or not they saw depression or personality factors as predominating in Ms Earle’s state of mind at the time of the killing.  Dr van de Hoef thought that the depression from which Ms Earle suffered at that time was moderate and that whilst she had personality vulnerabilities, which might perhaps have amounted to a personality disorder, she did not think that she could have had a severe personality disorder and still functioned as she did in the workplace – t 1‑68.  On the other hand Dr Voita thought that Ms Earle did have a personality disorder and that it was predominantly responsible for her state of mind at the time of the offending.
51. [51]
    Both Dr van de Hoef and Dr Voita acknowledged that Dr Voita was in a better position to come to a conclusion about personality and personality disorder because she had care of Ms Earle for a long time, whereas Dr van de Hoef only saw her for an interview.  Personality and its function are best observed longitudinally.  It seemed that Dr Schramm also thought Ms Earle had a personality disorder.  My finding is that she had a personality disorder with dependent, avoidant and histrionic traits.  I think Dr Voita had the best opportunity to make observations about this.  I have referred to Dr Sundin’s explanation that an avoidant personality will endeavour not to come into contact with persons or situations which reflect badly on them or judge them negatively.  Dr Voita explained that a histrionic personality will tend to see things in a black and white way.  That Ms Earle had a dependent personality I think is evident from her relationship with her mother and husband initially, but in the very abnormal relationship she had with her son.  In essence I accept what Dr Voita said of Ms Earle’s personality:

“I would say that Ms Earle has a mixed sort of personality disorder.  I think that what the other reporting psychiatrists have stated, I think that there is an element of some histrionic type behaviour, avoidance, sort of dependence and I think that her functioning prior to her arrest suggests that she formed very few friends and had a sort of – shall we say a fairly sort of black and white thinking about things.” – t 1-83.

52. [52]
    Dr Voita thought that the depression only contributed to a very small degree compared to the personality disorder when Ms Earle’s state of mind at the time of the offending was considered – t 1-86.  At one point in her evidence she said the depression was of mild to moderate severity at the time of the offending – t 1-83.  Later she said she thought the depression was mild, not moderate or severe – t 1-85. 
53. [53]
    Dr Voita said this as to Ms Earle’s state of mind at the time of the offending:

“I conceptualised the events on the day as being to do with her personality functioning, the enmeshed relationship with her son, I suppose the catastrophic way that she viewed his arrest and I couldn't marry that with being in keeping with a mild depression, which I think was, at best – you know, it was not – it wasn’t a severe depression whereas, even though I know that she may have been tearful at work, I didn’t think there was a lot of other evidence that she was actually significantly depressed.” – t 1-83.

54. [54]
    In my view the evidence as to depression does exist.  There were neuro-vegetative symptoms – poor sleep, reliance on Panadeine Forte to go to sleep, over-reliance on Panadeine Forte and alcohol, loss of appetite and weight, and suicidal ideation – expressed to the GP in October 2013 at least.  I think that the GP and the pharmacy records bear this out.  Thus I accept Dr van de Hoef’s view that, at the time of the killing, Ms Earle was suffering from depression which affected her cognition and motivation significantly.  I particularly think that Dr Sundin’s description of how the dependent, avoidant and histrionic personality disorder interacted with the depression at the time of the killing, [47] (above), gives a valuable insight into the evidence.  I find that this interaction led to Ms Earle thinking in a catastrophic and nihilistic way about her situation.  Because of her abnormality of mind she did not see a difficult situation which she should deal with carefully, logically and with professional advice, but rather saw a catastrophe to which there was no solution other than the deaths of Brandon, herself and the dog.  As Dr van de Hoef pointed out, the solution she chose put an end to her career as a nurse, which was something very valuable to her.  The suicide attempt was very serious; I have no doubt she intended to die.  And, in some very poignant way, the decision to euthanase the dog highlights the fact that there could be no future for any of them. 

Diminished Responsibility contrasted with Insanity

Section 27 of the Code provides that a person is not criminally responsible for an act or omission if at the time of offending they are deprived of the capacity to: (a) understand what they are doing; (b) control their actions, or (c) know that they ought not do the act.  It must be a “mental disease or natural mental infirmity” which deprives the person of one of the three capacities.  A personality disorder is neither a mental disease nor a natural mental infirmity at law.^[3]  And indeed I think that legal position sits well with orthodox psychiatric opinion which is that, “however severe a personality disorder may be, it does not cause a loss of contact with reality the way a psychotic illness does.  It does not therefore have the potential to deprive a person of one of the three capacities listed in s 27 of the Criminal Code.”^[4]

55. [55]
    However, as can be seen from the definition, a finding of diminished responsibility does not depend upon either a deprivation of any of the three relevant capacities or a finding that the deprivation was caused by a mental disease or natural infirmity.  To the contrary, the definition requires a substantial impairment of one of the listed capacities.  And further, that the impairment is brought about by, “a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury)”.

Abnormality of Mind and Personality Disorder

56. [56]
    The cases in Queensland are unclear as to whether or not a personality disorder is capable of qualifying as an abnormality of mind within the meaning of s 304A.  I would make two preliminary observations.  The first is that the phrase abnormality of mind is “an expression used in the statute and is not a reference to a specific medical diagnosis”.^[5]  The consequence is that the mere fact that a psychiatrist diagnoses a personality disorder will never, by itself, decide the question of whether or not there is an abnormality of mind within the meaning of the section.  In contrast, a diagnosis of say, schizophrenia, will mean that there is a mental disease in terms of the legislative definition of insanity: schizophrenia is a mental illness and s 27 is concerned to identify a mental illness.  Because abnormality of mind is a statutory construct, the finding will be one for the Judge on the facts in every case.  The question will always be whether the personality disorder exhibited by the defendant amounts to an abnormality of mind in any given case. 
57. [57]
    The second general observation I would make is that to satisfy the definition of diminished responsibility, it is only necessary that a person be substantially impaired in one of the three relevant capacities.  It is not necessary that they be deprived of any capacity.  Therefore the medical reasoning which underlies the law that a personality disorder is not a mental disease, [54] (above), is not applicable to the question of whether or not a personality disorder can constitute an abnormality of mind for the purpose of assessing whether or not a defendant was of diminished responsibility.
58. [58]
    In Re GMB^[6] Chesterman J expressed the view that, “a disorder of personality does not constitute an abnormality of mind for the purposes of s 304A”.  The view is obiter for it is clear that Chesterman J did not accept the factual findings which formed the basis for the psychiatrists’ opinions in that case – see [50] and [51].  The other thing which must be said about the statement is that it does not recognise the first of the preliminary points which I make above – it will always be a question of fact whether or not a personality disorder fulfils the statutory definition of abnormality of mind; I do not think a valid general rule can be formulated, as it can in relation to illness.
59. [59]
    The Court of Appeal discussed personality disorder in the context of diminished responsibility in the case of McDermott (above).  In that case the Mental Health Court had concluded that the defendant did not suffer from anything which could be described as a mental disease.  The Mental Health Court had accepted that the defendant had a personality disorder and, apparently in deference to the decision in GMB^[7] (above), had accepted that could not amount to an abnormality of mind.  Nonetheless the Mental Health Court had concluded that there was in fact an abnormality of mind at the time of the killing which was brought about by the defendant’s “personality disorder, exacerbated by his depression and anxiety, compounded by the stress factors”.^[8]  Williams JA and Jerrard JA were content to decide the case on the basis that while the Attorney-General submitted that the Mental Health Court had erred by elevating “a personality disorder to an abnormality of mind” – [55], in fact the Mental Health Court had not concluded that it was the personality disorder itself which amounted to the abnormality of mind but only that it was the cause of such a state.^[9]  Apparently the Attorney-General did not challenge the notion that a personality disorder could cause an abnormal state of mind as opposed to amounting to one – [55].
60. [60]
    Fryberg J wrote a very learned judgment in which he concluded that a personality disorder could, on the facts of a suitable case, amount to an abnormality of mind for the purposes of s 304A.  He traces the history of the introduction of a defence of diminished responsibility in England in 1957 and in Queensland in 1961, and notes its origin in Scottish law before that. 
61. [61]
    Fryberg J rejected the conclusion in Re GMB (which he correctly noted was obiter) and also an earlier statement by Vasta J in Re Hinz.^[10]  Fryberg J rejected the notion that abnormality of mind must be caused by a recognised mental illness or something discussed in the early Scottish cases as being “on the borderline of insanity”, which latter description had been adopted by Chesterman J in Re GMB.  Fryberg J rejected that both on the New South Wales and British case law, but also on the plain words of s 304A.  He said:

“Abnormality of mind is an objective fact, not a term of art.  It is to be determined on the evidence in a particular case.  Unless personality disorder is to be treated as an excluded fact which must be disregarded in its assessment, it must surely be relevant to that assessment.  If it is relevant, then whether it is sufficient must surely be a question of fact and degree in the particular case.” – [116].

62. [62]
    Fryberg J concluded, “I do not doubt that a personality disorder could be capable of causing a state of abnormality of mind, nor that in such a case, it should be regarded as an inherent cause of that state”.  He rejected the idea that there could be any legitimate distinction drawn between what constitutes the abnormality of mind and its inherent cause.
63. [63]
    With respect, I agree with those conclusions.  The plain words of s 304A support the first.  The words in parenthesis have been interpreted as limiting the types of abnormalities of mind which fall within that section.  Accepting that, abnormality of mind induced by disease is clearly to be read as something different from abnormality of mind arising from “inherent causes”.  In my view a personality disorder is capable of producing an inherent state of abnormality of mind.  The wording of the section is a little infelicitous in that regard and I would interpret it, as it has been interpreted by the New South Wales Court of Appeal in Tumanako v R, as meaning that the abnormality must be inherent rather than it be something distinct which results from “an inherent cause”.^[11]
64. [64]
    Justice Fryberg cited cases which showed that in both New South Wales and in England personality disorder had been accepted as constituting abnormality of mind at footnotes 105 and 106 to his judgment.^[12]  I would add to that list the New South Wales Court of Appeal case of Tumanako (above), where a dependent personality was accepted as being an abnormality of mind.  Further, there is the case of Daniel v The Queen^[13] where the Privy Council accepted that a borderline personality was capable of amounting to an abnormality of mind and the UK Court of Appeal decision in R v Kathleen Hobson.^[14]  I note that the words in parenthesis in s 304A are identical with those in s 23A of the Crimes Act 1900 (NSW) when Tumanako was decided and s 4A of the Offences Against the Person Act 1861 (UK) and s 2 of the Homicide Act 1957 (UK), before its amendment in 2009 by the Coroners and Justice Act 2009 (UK), ie, when the English cases were decided. 
65. [65]
    Fryberg J goes on to list a series of personality disorders recognised in DSM-IV: Paranoid, schizoid, schizotypal, antisocial, borderline, histrionic, narcissistic, avoidant, dependent, obsessive compulsive and disorder not otherwise specified.  He notes the question of whether or not there are legal policy reasons against recognising personality disorder as capable of constituting or contributing to an abnormality of mind within the meaning of s 304A.  He notes at [123] that in Scotland antisocial personality disorder (psychopathy) is excluded as a matter of policy and discusses the cases relevant to that. 
66. [66]
    These statements by Fryberg J cannot be regarded as part of the ratio of McDermott, but both Williams JA and Jerrard JA acknowledge the force of Justice Fryberg’s judgment.^[15]  The majority decision in McDermott was that a personality disorder together with other things – depression, anxiety and stress – could amount to an abnormality of mind within the meaning of s 304A.  Thus this case falls within the majority decision in McDermott.
67. [67]
    I have found that at all material times Ms Earle was suffering from depression, which falls within the accepted definition of mental disease in s 27 of the Criminal Code, and that she had a personality disorder.  That disorder had histrionic components which, relevantly here, meant that she thought in a very black and white way.  It had avoidant aspects which meant that she had difficulty in taking rational steps which would see her come into contact with others about matters she was ashamed of, and had dependent aspects which meant that she had difficulty separating Brandon’s behaviours, emotions, tribulations, risks and expressions of suicidality from her own separate state.  When external events reached crisis point on 18 December 2013, it was this abnormal state of mind which Ms Earle brought to bear upon them.  Her state of mind was an abnormality of mind for the purposes of s 304A, and its cause was inherent: personality disorder and illness, so that it arose from conditions listed in parenthesis in that section. 
68. [68]
    I note there is another case in Queensland which recognises that an abnormality of mind can be caused by a personality disorder together with other things.  In Re Perini^[16] Philippides J said:

“I accept that the defendant was suffering from an abnormality of mind at the time in question. The abnormality of mind arose from an inherent cause, namely the defendant’s profound personality disorder, and was combined with adjustment disorder with anxiety symptoms, which was present in the setting of neurological compromise contributing to a significant deficit in terms of functional impairment.

This was largely the view of Drs Neillie and Schramm. I note that Dr Reddan did not dismiss their position.”

Substantial Impairment

69. [69]
    I turn now to whether or not Ms Earle’s abnormality of mind substantially impaired one of the three capacities relevant to s 304A.  Both Dr van de Hoef and Dr Voita^[17] considered that Ms Earle’s capacity to know that she ought not kill Brandon was substantially impaired.  This was also the advice of my assisting psychiatrists.
70. [70]
    In R v Golds^[18] the English Court of Appeal reviewed several cases as to the meaning of substantial in the expression “substantially impaired” in the equivalent to s 304A.  It was said:

“At the heart of this submission is the contention that the word ‘substantial’ is capable of having two meanings.  One possible meaning is that the abnormality of mental functioning substantially impairs if it does so to more than a trivial or minimal extent; it then has substance and the impairment is substantial.  A second meaning is that the abnormality of mental functioning only substantially impairs where, whilst not wholly impairing the defendant’s ability to do the things specified in [the equivalent to s 304A], it significantly or appreciably impairs that ability, beyond something that is merely more than trivial or minimal.  For example, if a salary is described as substantial that would not convey the meaning that it is something a little more than minimal; on the contrary, it suggests that it is significantly more than that.” – [55].

71. [71]
    The Court of Appeal approved a direction to a jury from 1964^[19] in the following words:

“Do we think, looking at it broadly as common-sense people, there was a substantial impairment of his mental responsibility in what he did?  If the answer is ‘no’, there may be some impairment, but we do not think it was substantial, we do not think it was something that really made any great difference, although it may have made it harder to control himself, to refrain from crime, then you would find him guilty …”

72. [72]
    Commenting on this direction the Court of Appeal in Golds said:

“This is plainly adopting the second meaning outlined above.  Even if the ability to exercise self-control was to some degree affected, that would be insufficient.  The impairment had to be substantial.  That summing up was approved by the Court of Criminal Appeal.”

73. [73]
    In considering the meaning of substantial impairment, I think the discussion by Keane JA in DAR v DPP (Qld) & Anor^[20] is helpful.  He said:

“… a consideration of whether an accused person was of diminished responsibility … necessarily requires attention to whether an abnormality of mind has adversely affected the capacities essential to the full responsibility of that person under the criminal law.  For the purposes of s 267(1)(b) of the [Mental Health] Act, an accused person cannot be said to have been ‘of diminished responsibility’ when the alleged murder was committed unless that person’s capacity for full criminal responsibility was substantially impaired by an abnormality of mind.”

That is, in looking to see whether there has been a substantial impairment, the statutory effect of the defence should be borne in mind, ie, the impairment must be substantial enough to impair the person’s capacity for full criminal responsibility.

74. [74]
    I find that Ms Earle’s state of mind was such that her ability to understand that killing Brandon was wrong was substantially impaired.  I accept that Ms Earle understood that what she was doing was contrary to societal norms and, I would infer, the law.  She made efforts to disguise her taking of drugs and equipment from the hospital by dressing in scrubs and fobbed off the ambulance when officers telephoned her.  I infer that she did these things because she did not want to be interrupted in her plan and realised that right‑thinking people would try to interrupt her plan.  Her own belief, however, was that she was justified in doing what she did, indeed that there was no humane or acceptable alternative to the action she was taking.  Unlike the test for insanity – complete deprivation of capacity, s 304A only requires that capacities be substantially impaired and, in my view, Ms Earle’s capacity to understand what she was doing was wrong according to law was substantially impaired within the meaning of the cases discussed.

External Contributors to State of Mind

75. [75]
    It remains to address the considerable stress under which Ms Earle was acting at the time of the killing.  Caring for Brandon, almost singlehandedly, for the entirety of his life no doubt produced a situation of chronic stress for Ms Earle.  However it is clear from the evidence that after he became interested in paedophilia these stresses greatly increased.  Then on 18 December 2013 Ms Earle’s worst fears were realised, Brandon was detected by the police, they forced entry to her home and forcefully arrested her son.  They charged him with 19 counts and gave him bail pending trial.  All these increasing stresses were external matters and it is clear that the words in parenthesis in s 304A are designed to confine the partial defence granted by the section to cases where abnormality of mind arises endogenously. 
76. [76]
    The extent to which the Court can take into account external stress when considering abnormality of mind was explored in R v Whitworth.^[21]  The trial judge had directed the jury about the defendant’s brain injury but refused to direct about what he called “psychosocial stress”.  Matthews J said at p 439 of that case, “… the question for us is whether his Honour was correct in excluding the stress factors from the jury’s consideration when it was accepted that the appellant had an abnormality of the mind and that the stress factors could have operated with that abnormality of the mind to cause the appellant’s inability to control his actions.” (my underlining).  Matthews J resolved that difficulty by allowing the appeal.  He thought that the evidence of stress ought to have been left to the jury in combination with the evidence of brain injury.  He said this:

“I think that Dr Whiteford was, in effect, saying that the abnormality was such as to make the appellant vulnerable to undue stresses; that he had been subjected to heavy stresses and finally when he came across the deceased lad as he thought masturbating, the stresses to which he had been subject combined with the ‘triggering mechanism’ of so discovering Kevan; there was such a mental reaction and abnormality of mind so as to stretch the appellant’s capacity to control his actions to breaking point.  In these circumstances I of the view that the relevant stresses to which the appellant had been subjected were very material to the jury’s consideration of the appellant’s abnormality of mind at the time and the jury should not have been confined to a consideration of whether that abnormality of mind arose only from injury.”

77. [77]
    Derrington J dealt with the problem more explicitly, but to the same effect.  He said:

“For the reasons given above, it is not pertinent to discuss the external or environmental factors for themselves as causes of the abnormality of mind, but they will be considered to the extent that they relate to one of the causes specified by the section.  It leads to error to discuss the relevant abnormality of mind as having been caused by external factors.  The cause must be looked for in one of those enumerated [in the part of s 304A in parentheses].” – p 452.

78. [78]
    His resolution of the issue was that the appeal ought to have been allowed; “the real question that should have been left to the jury on this point is whether any relevant abnormality of mind, if it were found to exist, arose from an inherent limitation in his mind to withstand the stresses to which he was subjected” – p 458. 
79. [79]
    I think it is reasonably clear from the judgments of both Matthews J and Derrington J^[22] that in a case where there is evidence that the defendant has an abnormality of mind arising from one of the conditions listed in parenthesis in s 304A, then if, in addition, there is external stress on the defendant at or before the time of offending, then that is to be taken into account in understanding whether the abnormality of mind operated to substantially impair capacity at the time of offending.^[23] 
80. [80]
    Because a person who has a mental illness and who is deprived of one of the relevant capacities will have lost touch with reality, it will often enough occur that they offend in response to their internal phenomena, such as delusions, rather than to any actual objective reality.  Thus someone suffering a delusion might attack a completely innocent passer-by not because of anything that person has done, but only because the person with a mental illness is acting under the delusion.  In contrast, someone who is not deprived of any relevant capacity, but who is only substantially impaired in relation to a relevant capacity, will not have lost contact with reality and will likely be acting in response to real external events, but acting in a way produced by their abnormality of mind, not as an ordinary person would act in such circumstances.  It is unlikely then, that a consideration of abnormality of mind will occur except in a context where the defendant is reacting to a stressful event or events.  This cannot preclude the availability of the defence of diminished responsibility.  So long as it is clearly understood that the abnormality of mind must result from one of the causes in parenthesis in s 304A, it is relevant to consider those externally-generated stresses.  Very often it must be, as in this case, that it is the person’s abnormality of mind (arising inherently) which means they are inadequate to respond to the stresses, and as a consequence will kill.
81. [81]
    This point was discussed in DAR v DPP (above) by Keane JA in the context of the defendant’s anger at external events:

“[73] That having been said, the circumstances which engage s 304A of the Criminal Code will usually, though not invariably, include anger on the part of the accused.  It is obvious that, in R v Whitworth, Thomas J was not saying that the partial defence afforded by s 304A will not be available merely because the accused person acted while angry.  If the accused’s capacity to act with full responsibility was, in truth, diminished by an impairment of mind, then the circumstance that the accused was angry when he or she killed his or her victim will not deny the operation of s 304A of the Criminal Code.  When Thomas J said that an ordinary emotion such as anger could not be regarded as an abnormality of mind for the purposes of s 304A of the Criminal Code, he was saying no more than that an angry reaction to adverse external circumstances could not be so regarded.  In my respectful opinion, nothing in Re Bromage or Re Pitt supports a contrary view. 

…

[76] In my respectful opinion, in R v Whitworth Thomas J was not concerned to exclude from the scope of a defence of diminished responsibility those cases where the evidence shows that an angry reaction of the accused which resulted in an unlawful killing was itself symptomatic of an abnormality of mind or that the condition of mind of the accused person was abnormal because of the presence of a deep-seated anger which was itself part of that condition of mind.  Thomas J was, I think, speaking of anger which is a sufficient explanation for the action which resulted in the killing: and that was the sense with which the MHC was concerned in this case because of the view which her Honour took of the evidence.”

82. [82]
    Certainly in McDermott the Court of Appeal endorsed a finding which included a consideration of the exacerbation of stress on the defendant’s personality, anxiety and depression. 
83. [83]
    Here the finding I have made is that Ms Earle’s abnormality of mind was caused by conditions listed in parenthesis in s 304A: personality disorder and depression.  It was her abnormality of mind that meant that when confronted with real external stresses on 18 and 19 December 2013, she killed her son in a state of mind such that she was substantially impaired in her capacity to understand that she ought not do so.