In the matter of SAB[2017] QMHC 2

MENTAL HEALTH COURT

1. [1]
   I dealt with this reference on 7 December 2016.  My finding was that in relation to the two charges before the Court – breach of domestic violence order and grievous bodily harm, both 2 January 2014 – SAB was suffering from a mental illness, schizoaffective disorder, which deprived her of the capacities to know that she ought not do the acts complained of, and to control herself in relation to doing those acts.  I made a Forensic Order.
2. [2]
   I now provide my reasons for those findings.  This case involves questions of general application regarding intoxication.
3. [3]
   SAB was 31 years of age at the time of the offending and had been living with the complainant for about 10 years; married to him most of that time.  Police were called to their home and discovered that SAB had seriously stabbed her husband with a large kitchen knife.  She made admissions to them at the time and told them where they could find the knife.
4. [4]
   I have a report pursuant to s 238 of the Mental Health Act 2000 from Dr Voita who is SAB’s treating psychiatrist.  She describes a history of mental illness from about 18 years of age, complicated by a lack of insight and consequent poor adherence to treatment.  SAB’s illness is further complicated by her use of illegal drugs: cannabis and amphetamines, and also her excessive use of nicotine. 
5. [5]
   I will summarise some of the aspects of the illness relevant to this offending.  Dr Voita reported that when unwell SAB often presented with thought disorder, labile mood, disorganisation, poor self-care, persecutory delusions and delusions of infidelity concerning her husband.  These delusions of infidelity have characterised SAB’s illness.  On 12 February 2004 SAB was seen in the Logan Emergency Department.  She reported thoughts that her boyfriend was cheating on her; she had seen him having sex with other girls, including having sex with someone on top of their car whilst she slept inside the car.  In 2007 the hospital notes referred to “morbid jealousy” and SAB having visual hallucinations of seeing her husband with another woman in the mirror.
6. [6]
   SAB strangled her pet cat in 2003.  There was also evidence available to Dr Voita that she had stabbed her boyfriend in 2004 (not her current husband); and also threatened her husband with a knife in 2004.  She had attacked her mother in 2004.  Despite this she has no criminal convictions.
7. [7]
   SAB’s illness has been relatively severe and she has been managed predominantly under involuntary treatment orders since 2002.  These orders have been revoked on three occasions and on each occasion SAB’s mental state has deteriorated, requiring her to be admitted as an in-patient in hospital and then requiring her release on another involuntary treatment order.  As well as the three in-patient admissions just mentioned, SAB has had numerous other admissions to in-patient services.  She was on an involuntary treatment order at the time of this offending.  She was also being medicated with a depot medication (antipsychotic). 
8. [8]
   Pursuant to her involuntary treatment order SAB had been reviewed on 4 December 2013.  Staff suspected illegal drug use, which she denied.  However she refused to co‑operate with a urine screen.  She was seen again on 31 December 2013, ie, only two days before the offending, in the company of her mother, when she received her depot injection of antipsychotic medication.
9. [9]
   After arrest on 2 January 2014 SAB presented as agitated, shouting, rambling, unco‑operative and thought-disordered when seen by a mental health worker.  The next day she was seen by consultant psychiatric Dr Kovacevic.  By this stage she had been placed in a padded cell because she had been screaming and throwing herself against the walls.  Dr Kovacevic found a very distressed and tearful woman who accused someone named Tracy of being responsible for the situation.  She had delusions that she could see names engraved on the floor of her police cell, including the name of her husband, which she interpreted to mean that he had spent time in the cell. 
10. [10]
    SAB said that Tracy lived in the same street as her and had been trying to seduce her husband, as well as trespassing on her property, spying on her and whispering through the window.  The content of the whispering had been sexual, suggesting a sexual relationship between Tracy and SAB’s husband.  SAB said that Tracy had been making derogatory and abusive remarks towards her, threatening to harm both her and her husband.  SAB described that she could see Tracy’s shadow outside the window.
11. [11]
    As to drug use, SAB told Dr Kovacevic that over the Christmas period she and her husband had purchased amphetamine and that she had used amphetamine four days earlier.  She said that she had committed the offence (which she admitted) when she was “coming down off gear”.
12. [12]
    As a result of Dr Kovacevic’s review of her, SAB was taken to The Park and placed in its High Security In-patient Service.^[1]
13. [13]
    On admission SAB was reviewed by Dr Neillie.  She was highly irritable, shouting, aggressive and unco-operative.  She said she had used amphetamines and cannabis recently.  She became irritable when pressed on this topic, saying non-responsive things.  She blamed a neighbour for the incident which led to admission.  She said the neighbour had been whispering to her through the window at night asking her to disembowel her husband.  She said, “I just wanted to break the spell.  I didn’t think he will get hurt.”
14. [14]
    SAB told Dr Neillie that she had received medication on 31 December which was different from her normal medication.  (The evidence is to the contrary).  She thought the medication had been tampered with because it was brownish in colour and that this was responsible for her mental state.  She continued to report delusions of persecution and infidelity involving a neighbour to Dr Neillie.
15. [15]
    At the High Secure Unit SAB’s existing antipsychotic medication was increased and she was given an additional antipsychotic and Diazepam.  After several weeks of treatment she began to improve, but the improvement was limited.  She was then commenced on Lithium as a mood stabiliser in addition to her other medications, but no further improvement was noted.  She was eventually tried on Clozapine in April 2014.  This did lessen her mood volatility but she remained thought-disordered with persecutory, grandiose and bizarre delusions.  Complications with medications ensued, but SAB began to show considerable improvement in August of 2014.  Nonetheless she remained irritable, demanding, unco‑operative, paranoid and thought-disordered when Dr Voita attempted to interview her for the purpose of providing a report to the Court.  Several interviews had to be terminated for this reason.  Dr Voita reports that at these interviews it was very difficult to follow SAB’s speech content due to the severe degree of thought-disorder she displayed.  At the date of her report to the Court (10 March 2015) Dr Voita found that SAB continued to voice bizarre thought content and remained thought-disordered.
16. [16]
    With those qualifications, the information Dr Voita obtained on interview is as follows.  SAB alleged that the medication given to her on 31 December 2013 made her feel as if her head was swirling.  She said the medication was “off” because it had been left too long in the sun.  She said the medication made her sleep for two days.  She gave an account of her husband leaving home the night of the offending with a male friend and returning with a sore back.  She said she stabbed him because “all the frustrations were going towards stabbing him”.
17. [17]
    She reported that Tracy was a promiscuous woman who was very seductive and who had therefore slept with SAB’s husband.  She said that she had caught them having sex in the backyard twice at the end of the year before and reported that, “They were having sex on top of me.”  She said that she was sleeping and she woke up to find the two of them having sex on top of her.  She denied having heard the voice of Tracy outside her home.
18. [18]
    There are nursing notes soon after admission to High Secure consistent with delusions of the type described by Dr Kovacevic.  SAB was heard screaming, “I hate Tracy” and noted by a nurse to have said that Tracy had slept with her husband.  She was heard to be yelling, “You stupid bitch, you have won, why don’t you stop whispering in my ear.”  There are numerous other notes to similar effect as this.
19. [19]
    At one of the interviews with Dr Voita, SAB denied using amphetamines on 31 December 2013.  The nursing notes show that close to the time of admission to High Secure SAB told one nurse, “The speed I had on New Year’s Eve was brown not white.  I know there was something wrong with it, I took too much and I didn’t have a detox patch because I sold it for money.  You know and I needed it, that’s why all of this happened.  I hope [my husband] is okay.”  There are other comments similar to this where SAB blames injections of speed for her behaviour, but also says quite bizarre things such as, “My sister drops drugs into my drinks at my mother’s place and it makes me go psycho”.  She said her drink was spiked with “microdots of trips”.  At other times she blames her depot antipsychotic for her psychotic state.
20. [20]
    She told a doctor on 6 January 2014 that, “I see Tracy creeping through the grass … she isn’t a voice in my head as it’s Tracy’s voice and she was there … she skedaddles, she says what she needs to say and then leaves.” 
21. [21]
    As to substance abuse, SAB reported to Dr Voita that she had a 10 year history of regular amphetamine use.  The amount and frequency of use depended on money available either from her husband’s wage when he was working, or from Centrelink payments.  At the time of the offending she reported that they each used between half a point and one point on Friday nights after receiving Centrelink payments.  SAB said that they received their payments earlier than usual, just before Christmas, so that on 24 December 2013 they purchased two points of amphetamine and used that drug almost immediately.  She said that her husband pawned their television on 26 December 2013 to obtain additional money to purchase an extra point of methylamphetamine which was used on 27 December 2013.  She said that she did not believe they used any further amphetamine after this date and recalls that she and her husband were cranky with each other because there was no money left to buy more drug.
22. [22]
    Dr Voita spoke to SAB’s mother.  Her mother took her to receive her depot injection on 31 December 2013.  Dr Voita regarded her mother as a reliable historian.  SAB’s mother recalled that SAB complained at the time of her depot injection that the injection was brown and accused the staff of “mucking about with her medication”.  To her mother’s knowledge SAB had not previously complained about this.  She also made bizarre allegations at that time about her husband and neighbour “being on top of her on the bed”.
23. [23]
    SAB’s father told Dr Voita that he thought SAB’s mental state improved following each depot injection but the effect began to wear off before the next dose.
24. [24]
    The complainant told Dr Voita that SAB had showed signs of becoming unwell prior to her arrest to the extent that he had called an ambulance and attempted to have her admitted to the Logan Hospital Mental Health Unit.  He said that she had become more preoccupied with him having an affair, which had been a longstanding belief held by her.  He said the belief fluctuated in intensity depending on her mental state.  SAB’s husband said that he and SAB used amphetamines, up to half a gram, once or twice a week for a number of weeks leading up to the incident, but thought she had not used for a week-and-a-half prior to the incident.  He qualified this statement saying it was only an estimate – he had no real recollection.
25. [25]
    As to the night of the stabbing, SAB’s husband said that the couple had cooked and eaten dinner that night and both had gone to sleep in the same bed.  He woke up to find that he had been stabbed.  His wife did not say anything at that point.
26. [26]
    Dr Voita concluded that SAB was entitled to a defence of unsoundness of mind.  She thought she was suffering from a mental illness – schizoaffective disorder – and that at the time of the stabbing she was deprived of the capacity to know that she ought not do the act.  She did not think that she was deprived of the capacity to control her actions.  As to intoxication Dr Voita noted the various different histories given as to the last use of amphetamines.^[2]  There was no urine or blood toxicology.
27. [27]
    Dr Voita thought that had SAB’s behaviour, as observed by Dr Kovacevic, been due to amphetamine intoxication, it would have settled significantly in the days and first week following admission.  It did not.  She also points out that both SAB and her husband give a history of them going to bed and sleeping immediately prior to the offence, which is inconsistent with their having been acutely intoxicated with amphetamine.  On the evidence available, Dr Voita considered SAB was not intoxicated at the time of the offending. 
28. [28]
    I have a second opinion from Dr Voita by way of memorandum dated 28 March 2016.  She qualified her earlier opinion as to intoxication saying:

“Although it is clear that [SAB] has a chronic and severe mental illness that is best conceptualised as schizoaffective disorder, I am of the opinion that the use of intravenous amphetamines on a frequent and regular basis exacerbated her illness at the time of the alleged offences.  Although it is not clear how close to the time of the alleged offences she last used amphetamines (whether it was a couple of days or four days) it is my opinion that the use of amphetamines is directly related to the deterioration in her mental state immediately prior to the alleged offence.  I therefore cannot maintain that intoxication did not contribute to any extent to the deprivation of the capacity to know that she ought not do the act.

Although [SAB] has remained psychotic for many months after the alleged offence (and currently still suffers from residual psychotic symptoms), her symptoms at the time of her arrest and in the weeks following her arrest were more severe than they are presently in an environment of enforced abstinence from amphetamine and illicit substances.”

29. [29]
    This part of Dr Voita’s opinion shows some confusion as to the circumstances in which the law provides that a defendant will not be entitled to a defence of unsoundness of mind due to intoxication.
30. [30]
    Section 27 of the Criminal Code 1899 (Qld) provides:

“27 Insanity

3. (1)
    A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.

3. (2)
    A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible …”

31. [31]
    Unsoundness of mind is defined in the dictionary schedule to the Mental Health Act 2000 (the Act).  Relevantly it provides:

“Unsound mind means the state of mental disease … described in the Criminal Code, section 27(1) … [but] does not include a state of mind resulting, to any extent, from intentional intoxication … at or about the time of the alleged offence.”

32. [32]
    The question for this Court when an issue of intoxication is raised is whether, at the time of the offending, the defendant’s state of mind, ie, deprived of a capacity, was brought about to any extent from intentional intoxication, which intoxication existed at or about the time of the alleged offence.
33. [33]
    Frighteningly, this Court now commonly sees defendants who experience psychosis caused by long-term abuse of illegal drugs or sometimes, just one instance of using illegal drugs.  Often that psychosis lasts for a week or more; sometimes it lasts for years.  Sometimes the evidence is that the person is unlikely ever to recover from such a psychosis.  In other cases this Court hears evidence that persons who have an independent psychotic illness, such as schizophrenia, or schizoaffective disorder, experience a distinct worsening in their symptoms due to use of illegal drugs.  That state of worsened mental health is not transient, but can last for a considerable period of time.  A defendant who suffers from a drug-induced psychosis, or a drug-induced worsening of an independent psychotic illness, and who offends while deprived of one of the relevant capacities, is entitled to a defence of unsoundness of mind unless the evidence shows that they were intentionally intoxicated at the time of the offending and that intoxication contributed (to any extent) to their deprivation of capacity.
34. [34]
    The psychiatric opinion in this case was that SAB’s long‑term drug use, and the drug use in the weeks immediately prior to her offending caused a deterioration in her mental state which was already poor due to her longstanding illness.  She stabbed her husband while in that deteriorated mental state.  However, a defence of unsoundness of mind is available to her unless the evidence supports a finding that she was intentionally intoxicated at or about the time of the alleged offence, and that intoxication contributed (to any extent) to her state of mind at the time of the stabbing.
35. [35]
    I have two reports from Dr Phillips who was engaged by the Mental Health Court to provide a report pursuant to s 422 of the Mental Health Act 2000 (14 September 2015 and 13 March 2016).  Dr Phillips gives a similar mental health history to Dr Voita.  In particular, she gives a similar history in relation to delusions of infidelity and “longstanding delusional morbid jealousy”, particularly centring on a woman named Tracy at the time of the offending.  Similar to what she told Dr Voita, SAB told Dr Phillips that she believed Tracy would come to her house and have sex with her husband and that she could hear the voice of Tracy whispering at her window making sexual comments to her husband.
36. [36]
    SAB gave Dr Phillips a history of alcohol abuse from age 12 and marijuana abuse from age 13, with the onset of psychosis at age 18 in the context of having taken drugs.  She said she first used amphetamines at age 25 years and gave a similar history to that given to Dr Voita: use of around one point a couple of times a fortnight, coinciding with pension payment.
37. [37]
    So far as drug use prior to the offending was concerned, she told Dr Phillips that she and her husband had used intravenous amphetamine in an amount of one point each on Christmas Day.  She said that the subjective intoxicating effects of that lasted about 24 hours.  She experienced euphoria and energy.  She denied using amphetamine between that time and the offending. 
38. [38]
    SAB gave Dr Phillips the history that she believed she had been given the incorrect depot medication on 31 December 2013 because of its colour (this time green/grey).  She said this made her feel awful and her head “so awful”.  It was because she felt so bad that she and her husband decided to have a quiet New Year’s Eve and had gone to bed early.
39. [39]
    SAB told Dr Phillips that she thought she was mentally unwell at the time of the offence, however, she did not think she was unwell due to a relapse of her schizoaffective disorder but rather, she believed she was suffering from a voodoo curse, an adverse reaction to her depot medication and an antihistamine given to her by one of her neighbours.  She said that at the time she picked up the kitchen knife to stab her husband she did not feel that she could control herself due to the voodoo curse which had been put on her by her sister.
40. [40]
    Dr Phillips’ view was that SAB suffered from schizoaffective disorder and noted that relapses of her psychosis, which had been many, were characterised by delusional, morbid jealousy.  She thought that at the time of the offending she was suffering from a mental disease and was deprived of the capacity to know what she was doing and to control her actions.
41. [41]
    As to intoxication, Dr Phillips summarises all the different versions of amphetamine use given by SAB.  She says:

“It is my opinion, based on the balance of probabilities, that [SAB’s] use of amphetamines on or about 25/12/2013 – 31/12/2013 significantly contributed to the relapse of the psychosis.  However it is my opinion that by the time of the alleged offences on 02/01/2014, that [SAB] was no longer suffering from the effects of intoxication and rather that the deprivation of her capacity to control her actions and know that she ought not do the act was a result of her mental illness and was not contributed to, to any extent, by intoxication.”

42. [42]
    I also have a report from Dr Schramm, 22 August 2016.  On the question of intoxication he was unable to elicit any clearer, or less contradictory, version of events than had Drs Voita and Phillips and concluded:

“My opinion is that, unless it can be confidently established that she had used on the day or perhaps even the day before that, the question of intoxication, at least in my understanding of that term was not an issue in contributing to that mental state that deprived her of the capacity to know wrongness.  That is, if she had not used for days, I do not believe that any residual presence (if at all) of that agent would still have been having a direct effect on her thinking and reasoning.”

Evidence at the Hearing

43. [43]
    Drs Voita, Phillips and Schramm all gave evidence at the hearing of this matter. 
44. [44]
    Dr Voita thought that of the various inconsistent accounts SAB had given, the account that she had used on the 24^th and 25^th and then again, after pawning the television, on the 26^th or 27^th was the most likely.  On questioning she gave her view that, accepting use on 27 December 2013, she did not think that SAB was acutely intoxicated by the night of 2 January.  Her view was however that the amphetamine use, including the use on 24, 25, 26 or 27 December led to a deterioration in SAB’s illness. 
45. [45]
    Dr Voita thought that intoxication was “an acute condition due to ingestion of a substance” and that the length of time a person could be said to be intoxicated depended upon how quickly the person metabolised that substance.  The metabolism of the substance is measured by its half-life; that is, the time it takes for the body to eliminate half the dose of substance.  She agreed that half a dose of methylamphetamine would be eliminated from a user’s body somewhere between 10 to 13 hours after it was taken.  She agreed with the propositions put by Dr Gray that 25 per cent of the original dose would remain in the body at 26 hours, and that by 65 hours after ingestion, only three per cent would remain in the body.  At that stage, she agreed, the person would no longer be intoxicated. 
46. [46]
    Dr Phillips also had the view that the most reliable account as to when SAB last used amphetamines was sometime between 25 and 27 December 2013.
47. [47]
    Dr Phillips said that in her view intoxication was:

“… an acute, transient condition due to the administration of a psychoactive substance which then goes on to have effects on somebody’s mind in terms of their consciousness, perception, affect, behaviour or their mood, and that that condition is related to having the intoxicating substance within the body and that, once it is eliminated from the body, there is no longer an intoxicating effect, and effects thereafter would be considered, if they are persistent … a different condition, for example, an exacerbation of the underlying psychotic illness.  So, in my mind, I certainly was not thinking of intoxication purely as the subject of a high that one can get with amphetamines … The intoxicating effects can last longer than that, but by the time it’s eliminated from the body I would not consider that intoxication [continued] at that point.”

48. [48]
    She gave evidence that the half-life of a dose of methylamphetamine was 10 to 14 hours, depending on the particular individual concerned.^[3]  She thought that after the passage of about four or five half-lives,^[4] the substance could be considered to be eliminated from the body.  There were two views in the literature, one that the drug would be considered of no effect at four half-lives; the other at five.  In this case Dr Phillips thought that somewhere between two or three days after the consumption of methylamphetamine it would be eliminated from the body and there would no longer be any intoxication, notwithstanding that there might still be an effect on the person’s state of mind referable to the ingestion of the drugs.  She agreed with Dr Voita that, in SAB’s case, the use of amphetamines had an effect on SAB’s underlying schizoaffective disorder well after intoxication had passed.
49. [49]
    Dr Phillips’ conception of intoxication was that there had to be a significant enough amount of substance in the body to be having a physiological effect on the person’s mind or body.  To make it clear, someone who is left with withdrawal symptoms of tiredness, sleeping, irritability and depression after having metabolised all the amphetamine in their body would not be regarded as being intoxicated, in her opinion.
50. [50]
    Both my assisting psychiatrists recommended that I accept the unanimous opinion of the three reporting psychiatrists; that is that SAB was suffering from a mental disease: schizoaffective disorder.  Further, that she was deprived of the capacity to know she ought not do the act constituting the offence and, indeed, probably the ability to control her actions.

Conclusions

51. [51]
    I accept the advice of the three reporting psychiatrists and the assisting psychiatrists as to unsoundness of mind.
52. [52]
    I accept the opinion of Dr Phillips as to intoxication.  In fact I think her opinion was shared by both Dr Voita and Dr Schramm, although Dr Voita expressed some confusion as to the legal test. 
53. [53]
    One of the reasons I reserved my reasons in this matter was so that I could say something about R v Clough (No 2).^[5]  Clough was a case where a man with a longstanding psychotic disorder, and longstanding cannabis and methylamphetamine abuse disorder, killed his wife, having both smoked marijuana and injected methylamphetamine in the days preceding the killing.  The Court of Appeal dismissed an appeal against the trial judge’s finding that Mr Clough was not entitled to the defence of unsoundness because he was intoxicated with methylamphetamines at the time of the killing.
54. [54]
    The evidence of the four psychiatrists who gave evidence in Clough supported the decision that there could be no defence of unsoundness because of intoxication at the time of the killing.  However, judging by the extracts of their evidence in the Court of Appeal decision, examination of them as to intoxication was not as disciplined as it might have been.
55. [55]
    The Court of Appeal found that the meaning of intoxication was a question of law and that the word as used in the Criminal Code bore its ordinary meaning.  Neither of those propositions is exceptional.  Resort was had to dictionary definitions by the primary judge, and therefore by the Court of Appeal.  Further, resort was had to what other judges in other cases had conceived intoxication as being.  None of these definitions produced anything contradictory of the evidence which I have summarised above.
56. [56]
    While the meaning of the word intoxication is a question of law, whether in any case a person is intoxicated is a question of fact and psychiatric opinion will be very relevant to the determination of that fact.  In Clough the defendant smoked marijuana on Sunday; injected speed and probably smoked marijuana on Monday.  On Tuesday he smoked marijuana.  On Wednesday he injected half a gram of speed and smoked marijuana.  On Thursday he smoked marijuana.  On Friday morning he killed his wife.  The psychiatric evidence was that he was still intoxicated at the time of the killing.  It was in this context that the primary judge found that, although the high from methylamphetamine use on Wednesday had worn off, there was still a secondary effect operating on the defendant’s mental state at the time of the homicide.  That conclusion is perfectly compatible with the evidence as to methylamphetamine intoxication in this case.  It must however be understood in the context that the question before the trial judge in Clough (and the judge in any case where unsoundness of mind and intoxication are in question) was whether or not the defendant was intoxicated at the time of the offending.  That is, it is not just any “secondary effect” operating on the defendant’s mind at the time of the offending which is relevant.  It must be a secondary effect which amounts to, or can be classified as, intoxication.  Psychosis, or a worsening of a psychotic illness, which persists after intoxication has passed is not the secondary effect which is being spoken of in Clough.  Nor is the withdrawal or depressed reaction after intoxication has passed.
57. [57]
    In this case I think the best view on the evidence is that SAB last used methylamphetamine on 27 December 2013.  Having regard to the half-life of that drug and the time that passed between 27 December 2013 and the offending on 2 January 2014, I conclude that SAB was not intoxicated at or about the time of the offending.  She is therefore entitled to a defence of unsoundness of mind.