Re Smith[2018] QMHC 1

MENTAL HEALTH COURT

1. [1]
   The defendant is charged with murder on 16 April 2014.  The victim’s name was Bradley Barry Robert Lester.  There are lesser charges of serious assault; assault/obstruct police, and commit public nuisance from 17 March 2014.  There is no defence shown on the evidence in relation to these later charges, so my finding is that the defendant was not of unsound mind at the time of that offending. 
2. [2]
   The rest of this judgment is concerned with the murder charge and the defendant’s fitness for trial.  No-one contended that the evidence showed the defendant was of unsound mind at the time of the killing.
3. [3]
   Dr Grant, Dr Phillips and Dr Butler all reported to the Court^[1] and gave oral evidence.  Dr Grant supported a partial defence of diminished responsibility; Drs Phillips and Butler did not.  It was not until hearing his oral evidence that it became apparent that the real difference between Dr Grant and the other two psychiatrists was due to the fact that Dr Grant took a different view of the factual material than they did.  In submissions, counsel for the defendant properly conceded that the case could not be determined in this Court, but must proceed to trial because of the provisions of s 269 of the Mental Health Act 2000.  I think this is correct.
4. [4]
   In these circumstances I will make a finding that the defendant was not of unsound mind at the time of the killing pursuant to s 267(1)(a) of the Mental Health Act 2000.  I do not consider that the reasoning in Hansen v DPP^[2] prevents this, for the words of s 269(1) of the Act are different from those of s 268(1).  I read s 269(1) as forbidding only “the decision” rendered unsafe by the dispute, not forbidding any decision at all.
5. [5]
   At the hearing all the evidence was explored thoroughly.  In  giving reasons for my view that s 269 prevents me making a finding on the issue of diminished responsibility, I need only canvass the parts of the evidence and the parts of the psychiatric opinion which illustrate the factual uncertainty which is material to the opinions of the witnesses.  I am conscious that these reasons therefore deal with only part of the evidence which was before me.

Facts from Police Investigation

6. [6]
   At the time of the killing the defendant resided at Ozcare in Townsville.  The victim also resided there; they were sharing the same room.  Police were contacted at 7.50 pm on 16 April 2014 by someone who had seen a deceased body at the Cutting, a well-known cleared area of dirt at Sturt Street, Townsville, often used as a carpark.  Mr Lester’s body was found in long grass at the rear of the parking area.  The informant told police that at 4.30 that afternoon he had been shown the deceased man by the defendant who said something like, “You see what happens when you cross me.”
7. [7]
   When police made enquiries they found that Mr Lester had asked staff at Ozcare to remove him from the shared room due to a recent falling out with the defendant. 
8. [8]
   The police interviewed the defendant early in the morning on 17 April 2014.  The interview lasted about 1 hour and 20 minutes.  For most of that time the defendant told police a version in which he, the deceased and the informant had gone to the Cutting to smoke cannabis.  During this time the defendant said that he had insulted the deceased man; he had said he was “full of shit”.  By this he meant that the deceased man said that he had a gun and a gun licence, and a lot of money, and was a drug dealer.  The defendant had been “taken in” by this and felt resentful.  The defendant said that his insult had incited Mr Lester to hit the defendant on the jaw.  The defendant had a tooth abscess on his jaw.  He had just recently consulted a doctor about it.  Thus, the hit to the jaw had really hurt him. He “snapped” and “lost it”.  He “lost the plot”.  He put Mr Lester into a “sleeper hold”.  He demonstrated this for police; essentially he choked Mr Lester.  He said he was in a rage.  Then he corrected himself and said rage was not the correct word, he was in a panic and he could not think properly, his mind was all foggy. 
9. [9]
   He said he did not hold Mr Lester for long.  He held him until he dropped to the ground. During this time the informant was egging him on, telling him to kill Mr Lester.  Once Mr Lester was on the ground the informant then kicked him twice to the head and dragged his body into the grass.  The defendant gave a detailed description of this.  He added that he thought Mr Lester was alive at the time he dropped to the ground and he thinks the kicks might have killed him.  He said the informant went through Mr Lester’s bag; he disdained to do such a thing. 
10. [10]
    He then gave a second version which was to the same effect, save that Mr Lester tried to punch him and he ducked so that he was not hit.  Then he put Mr Lester in a sleeper hold.  He fought and wriggled and made a gargling noise.  The defendant says he was in a rage, and this time does not qualify the statement.  Then he says again that he was hit on an abscess on the jaw and that made him angry.
11. [11]
    He said he was “definitely” intoxicated with cannabis and amphetamine at the time and “very paranoid” and “on edge”.
12. [12]
    Towards the end of the interview the police put to him that in fact the informant was not at the Cutting and it was only him and Mr Lester.  He denies this, laughing and shaking his head in disbelief at the notion that the informant has lied to police.  Then police tell him that there is CCTV on the road to the Cutting and ask him does he really expect that the CCTV will show the informant walk up there, or just him and Mr Lester.  The defendant is silent for some time.  Then he confesses that he was the only person there with Mr Lester and was solely responsible for killing him.  He said that he choked him in the sleeper hold then sat beside Mr Lester’s body strangling him for a period of 20 minutes to make sure he was dead.  Then he kicked him in the head. 
13. [13]
    He said, “he king-hit me and he got it back”, “I lost the plot” and “I am not well in the head”. 
14. [14]
    Police took the defendant to the Cutting and recorded another interview with him there.  He said that he and Mr Lester did not go to the Cutting to smoke cannabis.  He declined to tell police why they did go there.  He said that while they were there Mr Lester expressed interest in learning some martial arts moves and so the defendant demonstrated three moves from the front and then one from the back - the sleeper hold - and that was “lights out for him”.  He said that after choking him in the sleeper hold, he strangled him for 20 minutes because he kept twitching and he wanted to make sure he was dead.  The defendant then said he kicked Mr Lester in the face, “because I was so angry with him”.
15. [15]
    The defendant said that when he went into the last martial arts move he thought he would “just kill” Mr Lester.  He said it was the same when he was a little kid – he pushed his brother off a fence – he just did it.  At another part of this walk-through interview with police the defendant said that he killed Mr Lester because he talked to much; was full of shit, and he felt the deceased man had used him.  When asked, he said he had no justification for killing Mr Lester.  The police ask him whether he felt threatened for his life by the deceased man and he says, “It wasn’t that, he just talked too much.”
16. [16]
    In a handwritten letter dated 1 May 2014 the defendant said the following.  The deceased man had told him in conversations over the days preceding the killing that he, (the deceased) was from a big family of criminals who had access to a large number of guns, some of which were for sale.  In response to this information, the defendant had given the deceased some money (a couple of hundred dollars) and asked him to buy a handgun.  Then a day or so later the defendant had suggested they go for a walk as they had something to talk about.  They walked to the Cutting.  The deceased said he did not have the gun he was to have bought.  The defendant said he did not care as long as he got his money back.  It is implied that the deceased ignored this statement.  He then asked to be shown some martial arts moves.  The defendant showed him three front moves, then as he was going to show him a move from behind, he noticed the deceased man reach for something in his pocket.  “At this stage I was scared and held on for life”.  In other words, apparently, he applied the sleeper hold and choked Mr Lester.
17. [17]
    There is much more police material than I have summarised, but that summarised is sufficient to illustrate the factual uncertainty which prevents me determining the matter.  It is an uncertainty attending the events immediately prior to the killing: whether they were on the one hand events which caused the defendant to kill in a rage, or whether he killed because he was frightened.

Dr Grant’s Opinion

18. [18]
    Dr Grant was engaged by Legal Aid on behalf of the defendant and saw the defendant on 28 August 2014.  He was the first of the reporting psychiatrists to interview the defendant and he was not briefed with any of the police material other than the QP9s and the bench charge sheets.  He did not have the record of interview or the walk-through interview.
19. [19]
    The version of events the defendant gave to Dr Grant is more in line with the version in the letter of 1 May 2014 than the version in the police interviews.  The defendant told Dr Grant that in the days preceding the killing he and Mr Lester had talked about various topics and Mr Lester claimed that he and his family had killed several people.  The defendant did not know whether to believe these stories.  He had smoked cannabis with Mr Lester.  Mr Lester kept saying he wanted to buy a gun in order to go on a killing spree.  The defendant gave him some money – $250 – and Mr Lester set off to buy a gun.  He came back without a gun and the defendant asked for his money back.  They went to the carpark to talk.  Mr Lester became aggressive and went to punch the defendant.  The defendant was concerned because he had a jaw abscess and because he had had a nightmare the night before in which Mr Lester had shot him, so he grabbed Mr Lester in a choker-hold till eventually he dropped down to the ground.  Then he became concerned that as revenge Mr Lester might get a gun and shoot him, so he tightened his grip on Mr Lester’s throat and held him very tightly for at least 10 minutes.  He then observed that Mr Lester was still twitching and therefore sat on the ground and held him by the throat for a considerable period.  He did this to ensure that Mr Lester was dead. 
20. [20]
    The defendant told Dr Grant that he had smoked a lot of cannabis on the day of the offence.  In particular, before going out with Mr Lester he had smoked a stick, which he said was the equivalent to numerous cones.  He had been using cannabis regularly in the days before.  He was insistent (initially) that he only used speed after the killing.  He said he was stoned on cannabis at the time of the offending.  Dr Grant asked him whether it was true, as he told Dr Khan in the watch-house, that he had used speed at 9.00 am on the day of the incident, that is before the killing.  The defendant said that he did not remember, but agreed that it was possible. 
21. [21]
    The defendant told Dr Grant that using drugs made his mental illness much worse and he used to hear a lot of voices when intoxicated.
22. [22]
    Two months before the offending the defendant had moved to Townsville from Cairns because he had broken up with his girlfriend and was very depressed and attempted to kill himself by hanging.  He managed to render himself unconscious in this exercise.  He said that afterwards he felt strange, was slow in thinking, lost his sense of smell and taste and seemed to be dribbling a lot.  He thought his memory was affected. 
23. [23]
    Notes from the Townsville Mental Health Unit showed that on 21 February 2014 the defendant was absent without leave.  He had a depot injection of antipsychotic medication on 4 March 2014.  He was seen on 10 March and is recorded to have been agitated, verbally aggressive and threatening to kill people, although he told Dr Grant that he did not mean those threats literally.  He was seen on 21 March at a diversionary centre.  His dosage of his depot medication was increased because he reported increased voices, agitation and insomnia. 
24. [24]
    The defendant told Dr Grant that during this period he was paranoid about everything and hearing voices.  He was sad, angry and irritable in the wake of his breakup with his girlfriend.
25. [25]
    When Dr Grant saw him he found some indication of mild deficits in cognitive functioning and ongoing evidence of paranoid symptomatology even though by that time he had been treated with antipsychotics regularly in the prison environment. 
26. [26]
    Dr Grant quotes from a social worker who compiled a history for the defendant.  He had an abusive and deprived childhood.  He left home at the age of 12 and thereafter either lived on the street; was in foster care, or juvenile detention.  He reported that he used cannabis from age seven and engaged in heavier drug use from age 12.  He reported homicidal ideation towards his younger brother and animal torture at a very young age.  Mr Smith has a considerable criminal history beginning in 1996.  The offences include offences of personal violence, property offences, drug offences and domestic violence offences, with periods of actual imprisonment from 2005.
27. [27]
    He is recorded as having been diagnosed with schizoaffective disorder at age 17.  It seems treatment-resistant.  He has self-harmed on many occasions. 
28. [28]
    In his report of September 2014, Dr Grant’s conclusions were as follows.  The defendant had schizoaffective disorder.  As to unsoundness, he says that he did not believe mental illness was the primary factor in offending.  The defendant was quite heavily intoxicated at the time with cannabis and probably with amphetamine.  In Dr Grant’s opinion, his drug intoxication would have been playing a significant role in his mental state and would therefore mitigate against a defence of unsoundness of mind.  He thinks that paranoid thoughts and lack of trust of others associated with his schizoaffective psychosis may have been impairing his capacities to some extent but that he would not have been deprived of any of the capacities made relevant by s 27 of the Criminal Code. 
29. [29]
    As to diminished responsibility Dr Grant says that schizoaffective disorder would be an abnormality of mind and, “that illness might have been exerting a considerable effect upon Mr Smith’s mental status at the time and might have impaired his capacity to control his actions or to know he ought not do the act.  However, the impairment would also have been related strongly to the fact that he was intoxicated with cannabis and possibly amphetamines at the time.  Therefore in my opinion it is difficult to assess with any confidence that he would have a defence of diminished responsibility.” 
30. [30]
    Dr Grant thought the defendant was fit for trial.
31. [31]
    In his second report, 29 August 2015, Dr Grant revisited the question of diminished responsibility.  He explained in his oral evidence that at the time he wrote his first report he had understood the law to be that intoxication precluded the Court making a finding of diminished responsibility.  He had received contrary advice from Legal Aid, and thus revisited the topic.  In this report Dr Grant said that because Mr Smith suffers from chronic schizoaffective psychosis which is not fully controlled even by optimal medication, he is a suspicious and paranoid man with poor control of his emotions and a tendency to become irritable and angry.  He was overdue for his antipsychotic medication on 16 April 2014.  He had received depot antipsychotic medication on 21 March 2014, at which time the dose had been increased because he was reporting active psychotic symptoms.  He was due to have another depot injection 13 days before 16 April 2014.
32. [32]
    Mr Smith has chronic problems with substance abuse, in particular he is a chronic abuser of cannabis and an intermittent user of amphetamines.  Dr Grant said the latter drugs particularly tended to cause a severe exacerbation of his psychotic symptoms. Dr Grant says that on the day of the killing it was clear Mr Smith had used “extensive cannabis” and was intoxicated. 
33. [33]
    Dr Grant speculated as to whether or not there might have been some mild cognitive deficits as a result of the attempted hanging.  However, he thought the problems he saw might equally have been caused by the defendant’s previous chronic abuse of substances.
34. [34]
    Dr Grant’s third report, 2 December 2015, was made after he was provided with the police record-of-interview and the walk‑through interview.  Significantly, Dr Grant notes that the defendant gave a history to police of having amphetamines on 16 April 2014 at about 9.00 am and that during the day he had smoked 10 to 11 cones of marijuana.  Dr Grant accepted in his oral evidence that the defendant was intoxicated as a result of taking these drugs at the time of the killing – t 1-40.
35. [35]
    Also significantly, although he now had a version of events quite contrary to those he had assumed as the basis for his opinion, he made no reference to those new facts and continued to maintain the opinion he had previously expressed.  That is, he chose to prefer one factual scenario as to the events immediately before the killing, which involved the defendant acting in a particular state of mind (fear), over another factual scenario which involved the defendant acting with a different state of mind (rage).  This choice persisted in the oral evidence he gave a trial.  I am not being critical in observing this.  Indeed, the difference between Dr Grant’s view of the matter and the view taken by Drs Phillips and Butler, is that the latter two doctors made the opposite choice and preferred the other factual scenario.  The point relevant to s 269 of the Mental Health Act 2000 is that all three doctors have made these choices.
36. [36]
    In his oral evidence Dr Grant acknowledged that he was not sure if the correct diagnosis was schizoaffective disorder or if the defendant simply suffered from schizophrenia.  Whichever it was, it was still a major psychotic condition - t 1-35.  Dr Grant took the view that symptoms of chronic psychosis together with some mild cognitive deficit constituted an abnormality of mind which would have been substantially impairing the defendant’s capacity to control his actions and his capacity to know he ought not do the act at the time of the offending, to an extent that was more than trivial.^[3]  The defendant was intoxicated at the time of the offending, but Dr Grant thought his abnormality of mind was sufficient to have caused substantial impairment.
37. [37]
    Dr Grant made it clear that, although he accepted the defendant had some anti-social personality traits, he was not sure that a diagnosis of anti-social personality disorder could be made – tt1-34-35.  His reasoning was that because the defendant had been psychotic and used illicit drugs extensively from a very young age, it was very difficult to say what parts of his behaviour were attributable to his personality, as opposed to these other things.  However, he did admit that there were some behaviours, including those cited in the letter at [65] below, which were suggestive of anti-social personality with psychopathic traits.  Dr Grant thought that these personality traits in the defendant made him feel insecure, threatened at times, feeling the need to defend himself, untrusting, suspicious of others, not good at making relationships. 
38. [38]
    Dr Grant took a long view of the defendant’s illness in assessing how it might have affected him at the time of the killing.  The defendant had suffered symptoms since adolescence.  Even when optimally medicated he was never entirely free of symptoms.  In fact he varied in his compliance with treatment, and at the time of the killing was 13 days overdue for his depot medication.  The last depot he had received was an increased dose because his clinicians were concerned that he was irritable and aggressive.  This produced what Dr Grant said in evidence were:

“… low grade psychotic symptoms … to do with being suspicious, a bit paranoid, some – maybe some low grade auditory hallucinations.  But there’s no history that I could obtain of very severe direct psychotic motivation to do with this particular victim.  By that I mean there don’t seem to have been actual delusions involving the victim, there don’t seem to have been auditory hallucinations specifically telling him to kill this person, but he was unwell.” – t 1-37.

39. [39]
    Dr Grant explained that while schizophrenia can affect people through obvious command hallucinations or delusional beliefs, it can also affect them, without those symptoms, in their ability to make clear decisions and control their degree of suspiciousness – t 1-37.
40. [40]
    Dr Grant saw the offending in terms of this low-level psychotic illness aggravating the defendant’s suspicious personality.  He saw the conversations reported by the defendant in the days prior to the killing as feeding into that: namely that the defendant reported his victim talking about his having killed people in the past and wanting to get a gun.  He then said:

“Then there’s the question of [the defendant] lending him money, both to buy some drugs and then to allegedly buy a gun, and then [the defendant] being fairly uncertain about all that, and then the man comes back and says, ‘okay.  We need to take a walk’, if all that’s happened in that context, you can imagine a suspicious man who’s uncertain about what’s happening around him, who tends to be untrusting, tends to be a bit paranoid, then he’s wondering what on earth’s going on, and then they get out into the – into this more isolated place, and he feels attacked by the victim and worried that the victim has a gun and then says that’s why he grabs him and – and ends up killing him.” – t 1-38.

41. [41]
    In that respect, Dr Grant thought that the schizophrenic illness would cause the defendant to have difficulty comprehending exactly what was going on around him; being clear about it, and making appropriate decisions.  Dr Grant thought that both the defendant’s capacity to know he ought not do the acts complained of was impaired, as well as his capacity to control himself.
42. [42]
    The defendant told Dr Grant that the victim tried to punch him and that he had ducked.  He was particularly worried because he had just had some stitches and problems with his jaw from a previous assault – t 1-44.  So he was worried about getting his jaw re-injured and became “extremely fearful of what was happening” – t 1-44.  He told Dr Grant that it was the deceased man’s stories of him killing, and his family killing, that made the defendant worry for his own safety – t 1-44.  He told him he had had a dream about the deceased man killing him the day before the killing– t 1-45.  He was thus fearful for his safety at the time he went to the car park – t 1-45.  This concentration on fear arising from the defendant’s version of events is critical to Dr Grant’s opinion:

“HER HONOUR:  That’s how you see it, isn’t it, that it was some real things, accepting what he’s told you, told to someone who’s a bit paranoid and a bit suspicious because of illness, not thinking very clearly because of illness and possible impairment and insecure because of his personality?‑‑‑Yes.

And while you acknowledge, say, the aggressive parts of an antisocial or psychopathic personality, it’s not those parts of his personality that you see feeding into this.  It’s the insecure, suspicious, untrusting – well, it’s that part of the personality disorder that you see as feeding into ‑ ‑ ‑?‑‑‑Yes, your Honour.  I think from his account, what he did was, in the end, a response to fear because of his paranoia, insecurity and that arising from both his illness and his background.

And personality?‑‑‑And then when he thought this man might be reaching for a gun and – that’ s – and, you know, that’s when it happened.  And I think that was a response to fear, rather than, ‘I want to kill this guy for some – some other reason’, you know.

Yes, rather than a ‑ ‑ ‑?‑‑‑Rather than, ‘He owes me money’ ‑ ‑ ‑

‑ ‑ ‑ psychopathic motivation?‑‑‑Yeah.

‘I quite like hurting people, so’ ‑ ‑ ‑?‑‑‑‘He owes me money.  I’m going to kill him.’

Yes?‑‑‑You know, it’s – I – I don’t think it’s like that.  It was more kind of defensive killing in the moment because of all the combination of those factors.

How do you see his interaction with the police then?  Because you can see that as there’s some dishonesty, there’s some manipulation and there’s some exculpation of himself, but then he’d rather like to inculpate [the informant] as well.  That doesn’t ‑ ‑ ‑?‑‑‑It’s all a bit confused.

It’s a different ‑ ‑ ‑?‑‑‑Well, that’s where the antisocial and psychopathic personality traits come in.  He’s done this.  He’s realised that this is extremely serious and he’s in big trouble, but he’s also feeling – still feeling afraid.  He said that, even when he went back to the hostel and smoked more marijuana or something, he was worried that the victim would get up and come after him, you know, even though – you know, was he still dead sort of thing.  So he then said that he involved [the informant] in this strange way and showed him the body and then said, you know, ‘This is what happens if you cross me.’ or something like that, but he said that, really, he thought that he was involving [the informant] because he didn’t know what to do and he, in a way, thought it’d be good if somebody else reported it to police or something like that.  It was confused thinking about why he might involve [the informant] and then when he saw the police, then he tried to blame [the informant] for it and, you know, tried to – and that’s – that’s just more to do – I wouldn’t see that to do with his schizophrenia so much as the light dawning of he’s in trouble and he’s going to try and wheedle his way out of it somehow initially until he is able to become more honest about it.  And then he’s given the other versions, including the one he gave me, to explain what happened so – and some of the versions have been more exotic than others.” – tt 1-45-46.

43. [43]
    Dr Grant accepted that there were no signs of psychosis evident in the police interview and that, to the contrary, some strategic planning, which he called “dishonest and manipulative” – t 1-51 – was going on.  Nonetheless, he did not see that as being necessarily inconsistent with the defendant suffering from underlying psychotic symptoms – t 1-51. 
44. [44]
    So it can be seen that the basis for Dr Grant’s opinion is a version of the facts consistent with the letter the defendant wrote on 1 May 2014, and with what he told Dr Grant at interview, but not with the version he gave police in the formal record of interview (except for the mention of panic) and during the walk-through.  I will go on to discuss the reports of Drs Phillips and Butler, for they both prefer a version of the facts where the defendant acts either for no reason, or in rage, as the basis of their opinion.  And it can be seen that, correspondingly, they do not concentrate on the insecure, suspicious parts of the defendant’s personality but on those parts which show him to be violent and lacking in empathy and remorse.

Dr Phillips’ Opinion

45. [45]
    The defendant told Dr Phillips that his mental health deteriorated at the age of 16 after a head injury and that his first contact with Mental Health Services was at the age of 17 when in youth detention he was diagnosed with schizophrenia and commenced on antipsychotic medications.  He had experienced numerous psychiatric admissions in Townsville, Cairns and Darwin, including as an involuntary patient.  He described a long history of experiencing psychotic symptoms including auditory hallucinations which gave commands and made derogatory comments.  Commands included commands to suicide or self-harm.  He described the voices as demonic.  He had a long history of experiencing paranoid beliefs that others were trying to harm him and everyone was working against him.  He believed that others could read his mind and put spells on him.  He also believed he was able to control other people.  He described a prominent mood component to his illness.  He described self-harming and attempting suicide countless times, including an attempt at hanging a few months prior to the alleged offence during which he had been found blue and was cut down by a friend.  He described a range of psychotic symptoms at the time of the alleged offence in the context of substance use and non-adherence to depot antipsychotic medication and the stress of a recent breakup with a girlfriend.
46. [46]
    The defendant said he first consumed alcohol at age 12 or 13; marijuana at 11 or 12, and other drugs such as LSD at age 12 to 13.  He described solvent abuse from the age of 10 or 11, until the age of 18 or 19.  He had been using amphetamines since he was about 18 or 19.  He used morphine from the age of 15 or 16 for a number of years and other opiates such as Oxycontin and heroin occasionally over the years.  He had a past history of benzodiazepine dependence. 
47. [47]
    The defendant recalled that his mental state had deteriorated a few days before he moved into Ozcare in Townsville.  In particular he recalled feeling that everyone was against him.  He had had a recent physical fight with his ex-girlfriend.  He was hearing voices talking about him and plotting against him.  He was non-compliant with his depot antipsychotic medication which was two weeks overdue. 
48. [48]
    He gave a similar history to that which he gave Dr Grant about Mr Lester having told him stories about killing people.  He said he gave Mr Lester two or three hundred dollars while they were smoking marijuana so that he could buy a gun.  When Mr Lester came back they went for a walk and he asked Mr Lester whether he had the gun.  Mr Lester said he did not have a gun and then punched him in the jaw, after which he grabbed Mr Lester’s throat and held onto it for a long time and then went back to Ozcare.
49. [49]
    Dr Phillips found the defendant keen to emphasise that he was mentally unwell at the time of the offence.  He said he had begged a doctor to help him, but the doctor would not.  In fact, Mental Health Services were making quite strenuous attempts to find the defendant prior to the offending.  He told Dr Phillips that he felt remorse for the offending, but attempted to deflect responsibility onto Mental Health Services for not taking better care of him. 
50. [50]
    In her oral evidence Dr Phillips said that she thought, having regard to objective behaviour at the time such as the police interview and crime scene walk-through and what is described in the witness statements, that the defendant was exaggerating the role of his mental illness in his account to her – tt 1-18-19.  In giving her opinion, she had discounted the role of his illness so that it accorded with her understanding of contemporary records – t 1-20.^[4]  Dr Phillips noted that the defendant gave no account to police which gave prominence to his psychotic state – t 1-18.  Nor did he give any such account to Dr Khan – t 1-19.  Dr Khan is an experienced psychiatrist who examined the defendant soon after the killing.
51. [51]
    Dr Phillips noted that the defendant was psychiatrically unwell at the time she interviewed him.  The defendant described a range of current psychotic symptoms to Dr Phillips, keen to emphasise “I don’t think I’m well”.  He said his major goal was to go to a psychiatric hospital prior to being released into the community “so that I get proper care this time”.  Dr Phillips administered a brief cognitive screening test.  She found deficits in memory and executive functioning.
52. [52]
    Dr Phillips thought that the defendant had schizoaffective disorder, antisocial personality disorder and possibly some kind of hypoxic brain injury.  She thought the existence of that latter disability would only be determined on neuro-psychological assessment. 
53. [53]
    In her report of 14 May 2015 she expressed the view that at the time of the killing the defendant was suffering from a state of abnormality of mind which impaired his capacity to know he ought not do the act.  She thought this capacity was substantially impaired and that the impairment “related to a combination of both psychotic symptoms and intoxication with cannabis and amphetamines”.  She thought that the intoxication significantly contributed to the impairment, but that the psychotic symptoms alone would have been sufficient to have caused a substantial impairment because the impairment resulting from psychosis alone “was more than trivial”.  Nonetheless she thought that the psychotic symptoms played a lesser role than the intoxication and the antisocial personality disorder.  In coming to that conclusion she relied upon the quite sophisticated way in which the defendant implicated the informant.  She considered that this showed that while the defendant may have been suffering from psychotic symptoms, his thoughts were not grossly disorganised.  This made it less likely, in her opinion, that he was suffering from a florid psychotic episode at the time of the killing.
54. [54]
    It will be noted that in her first report Dr Phillips used an incorrect test in relation to diminished responsibility; she looked for impairment that was more than trivial.  The correct test is more demanding.^[5]  When giving oral evidence Dr Phillips said, “I considered that Mr Smith, while he met the previous bar when you take out the intoxication and consider just his illness alone – that that was more than trivial.  I did not believe that it met the new threshold which had been set [by] the Court” – t 1-10.  She said, after some discussion, that she thought the mental illness alone was a “relatively small contributor in comparison to the other factors” – t 1-11.  That is, she did not think that mental illness alone caused a substantial impairment in the defendant’s capacities having regard to the more demanding test from R v Golds.
55. [55]
    Dr Phillips thought that comparing the different assessments by doctors over time – Drs Khan, Grant, herself and Butler – and looking through the medical records, that there had been “quite a decline” in terms of the defendant’s cognitive function between the killing and the present date.  This was significant to her opinion that cognitive impairment was not likely to have been a substantial contributor to his state of mind at the time of the offending.  In this regard she noted that Dr Khan, who assessed the defendant in the watch-house the day after the offending, did not note any significant cognitive problems, and she had regard to the defendant’s performance in terms of the formal interview and the walk-through interview.  From this evidence she did not think there was any severe cognitive impairment at the time of offending.
56. [56]
    Dr Phillips thought that the defendant “unequivocally meets the definition for antisocial personality disorder”.  She also thought that there were “significant psychopathic traits” in his presentation, including a long history of “homicidal fantasies”.  Other relevant factors pointing towards psychopathy were a need for stimulation or proneness to boredom; being conning and manipulative; a lack of remorse or guilt; a shallow affect; lack of empathy; parasitic lifestyle; poor behavioural controls; early behavioural problems such as impulsivity, irresponsibility, and criminal versatility.  Because he was not entirely well when she saw him she did not think it appropriate to administer a formal test for psychopathy.
57. [57]
    So far as substance abuse was concerned, Dr Phillips thought that the defendant’s reports were unreliable.  With that caveat, she noted he told police he had taken amphetamines at 9.00 am on 16 April and that he said the same thing to Dr Khan the following day.  She noted that there were two police witness statements which supported that – t 1-15.  She noted he had also given accounts, including to Dr Grant, of using a large amount of marijuana during the course of the day – 10 or 11 cones.  She noted that he told the police he was intoxicated at the time of the offending.  Dr Phillips thought that intoxicating substances were having a large effect on the defendant’s state of mind at the time of the offending.  In relation to this she saw a significant difference in his presentation to Dr Khan on 17 April, as opposed to 21 April.  She acknowledged that by that time he would have received some anti-psychotic medication, but she thought that it was important that for those four days he had been unable to use illicit drugs – tt 1-24-25.
58. [58]
    Dr Phillips did not think that the defendant’s anti-social personality disorder impaired his capacity to know he ought not do the act, “but rather his willingness to do it”.  That is, she did not think his personality affected his ability to understand social, moral or legal norms, but that it affected his willingness to comply with them – tt 1-7-18.  This is because of the factual view she took of the defendant’s state of mind at the time of the crime – callous or angry – and the role of the defendant’s personality in that – callous and violent.  In these factual respects she differs from Dr Grant; she prefers a different version of the facts as the basis for her opinion.
59. [59]
    This type of preference is common enough in the evidence of psychiatrists reporting to the Court.  In the general run of cases it is acceptable enough.  In this case with its significant factual uncertainties, I think it must be recognised that in choosing to rely on the objective evidence rather than the defendant’s version, Dr Phillips is making a choice normally reserved to a jury in a criminal trial.  Dr Butler does the same thing, see below, and Dr Grant makes the opposite factual choice, as I have already discussed.  I am not being critical of any of the doctors, but the fact that they all had to make such a choice as to the bases for their opinions shows the facts material to their opinions are in dispute.
60. [60]
    In her report, Dr Phillips wondered if the defendant was fit for trial because the stress of a trial might cause significant deterioration in his mental state.   Further, so far as fitness was concerned, she thought that psychotic symptoms he was experiencing would have the potential to impact on his ability to give instructions to his lawyer and follow the course of proceedings.  She thought that his unfitness was temporary, not permanent.

Dr Butler’s Opinion

61. [61]
    At the time of his interview with Dr Butler the defendant was in hospital and had been there for two months.  He was being prescribed Clozapine and believed that it had begun to reduce his symptoms.  Nevertheless, he continued to experience loud derogatory voices which spoke in both the second and third person and were there for much of the day.  Sometimes the voices gave him commands, for example to harm himself or do other more innocuous things.  He also believed that people outside the room he was in were laughing at him.  He believed there was a whole community of people who through telepathy joined up in the mind.  He still experienced referential ideas from the television and had curious ideas about Pink Floyd and the devil. 
62. [62]
    The defendant gave Dr Butler a history of having used cannabis from age 8, and daily use since age 12.  He said it generally slowed him down, but on other occasions could cause him to be agitated or have persecutory ideas.  He said he was using it daily leading up to the killing.  Dr Butler notes that contemporary documents from the beginning of 2013 indicate that the defendant was using IV amphetamines.  The defendant told Dr Butler that he had used them from quite a young age, and periodically used them daily.  Leading up to the killing the defendant said he was using amphetamines daily if he could afford it.  He had abused opiates in the past but had given them up some months before the killing.  He said he had sniffed aerosols and petrol in adolescence and abused alcohol, benzodiazepines and tobacco.
63. [63]
    The defendant gave a history of suffering several head injuries throughout his life but never any which caused any inter-cranial trauma or prolonged unconsciousness.  Dr Butler noted the reference to his attempting to hang himself, but did not think there was any objective indication that he suffered from any serious brain injury.  Nonetheless, Dr Butler thought that the defendant showed a poor memory and that his recall of complex verbal information was impaired.  His verbal fluency was also impaired and there were other deficits on testing.  Dr Butler thought that there had been a decline in Mr Smith’s cognitive functioning between the time of the offending and when he was first examined by Dr Grant in 2014 on the one hand, and the time Dr Butler saw him, on the other.  He doubted that the hanging attempt had anything to do with that.  He thought that the cognitive impairment was most likely a manifestation of worsening schizoaffective disorder.
64. [64]
    The defendant gave Dr Butler a history of a disrupted and adverse upbringing, including violent abuse and sexual abuse.  He said he lived on the streets and survived by stealing.  He has never had any employment.  He has three children who he fathered with three different women, but has no contact with any of them. 
65. [65]
    Dr Butler referred to a note written by the defendant dated 23 February 2014:

“Why I am criminally insane.  I am cold at revenge yet a transgression need not perpetuate the situation.  I love to see people hurt, I think it is funny.  I am so lonely I could cuddle up and sleep with a cadaver, talk and make love to it in the dark without a worry.  I can cut through flesh and bone without any guilt of any immorality.  I did this with many puppies and kittens that were stray – brought home or owned by us.  I would love to kill my family and have the only title.  I don’t have the capacity to love my own son/children.  I despise well to do people.”

66. [66]
    Dr Butler thought this note shows the defendant has an underlying substrate of resentment, alienation, lack of empathy, and homicidal fantasies.  As he remarked in his evidence it is not a description of insanity; it is a description of personality.
67. [67]
    In addition to his personality, Dr Butler thought the defendant had a persistent psychotic illness which was probably exacerbated by cannabis and amphetamine use.  Dr Butler thought it difficult to disentangle the defendant’s personality traits from the distorting effects of his psychosis and concurrent substance abuse.  However, he notes that the collateral information indicates that even when not manifestly psychotic, the defendant is aggressive, threatening and demanding.  He is interested in destructive and homicidal themes and had a propensity to commit random, impulsive acts of aggression, even in his youth, such as killing animals.  He notes that irrespective of psychosis, the defendant appears to have had a propensity to devalue the importance of human life and to have a diminished capacity for empathy.
68. [68]
    Dr Butler believed the correct diagnosis for the defendant was schizoaffective disorder bipolar type, continuous.  He thought he was suffering from this illness at the time of the killing.  In Dr Butler’s opinion the contemporaneous material does not suggest that Mr Smith’s behaviour was to any significant extent informed by psychotic symptoms such as command hallucinations, persecutory referential delusions or disorganisation.  There was no evidence the defendant was suffering from either a manic state or a rage-fuelled mixed-affective state.  Dr Butler thought that the recent fight the defendant had had with his ex-girlfriend, and his homelessness, dysregulated his emotions and exacerbated his underlying propensity to resent others who he believes have harmed him and to raise his baseline tendency to harbour homicidal fantasies.  He believed that the defendant made “post-hoc attempts to either pathologise his behaviour or to implicate others.”
69. [69]
    Dr Butler did not support a defence of unsoundness in relation to the killing.  He relied on the defendant’s initial denial of the act, and his seeking to implicate the informant, to show that he was well aware he ought not to have committed the killing.  Also his description of progressively choking the victim until he was sure he was dead indicated he clearly understood the intent and consequences of his actions.  The defendant told police, Dr Khan and Dr Phillips that he used intravenous amphetamines at 9 o’clock on the morning of the offending and told Dr Grant he probably did so.  He told the police and all reporting doctors that he had used a considerable amount of cannabis during the day before the killing.  Dr Butler thought that concurrent intoxication with amphetamine and cannabis would have caused some degree of disinhibition and impulsivity, impairing the defendant’s capacity to control his behaviour.
70. [70]
    Dr Butler did not support a defence of diminished responsibility.  He accepted that schizoaffective disorder was an abnormality of mind.  However, he considered that there was no clear evidence that this was determining the defendant’s behaviour at the time of the offending.  The victim was not incorporated into any delusional system and the defendant was not influenced by any command hallucinations or passivity phenomena.  Dr Butler believed that the defendant’s impaired capacity for empathy and propensity to have homicidal fantasies resulted in him carrying out the killing.  While he thought that the defendant’s underlying schizoaffective disorder “has contributed to impaired impulse control and a baseline tendency towards malevolence and suspiciousness, I do not believe these factors were contributory enough to regard them as causing substantial impairment of the capacity to control his behaviour.  I believe these factors would have affected the other two capacities to an even lesser extent.”
71. [71]
    In his oral evidence, after having heard Dr Grant’s evidence, Dr Butler clarified that while he accepted that someone with schizoaffective disorder might have impairments of cognition, or trouble with their reasoning, he thought that in in the absence of symptoms which distorted their perception of reality, he did not think that type of difficulty could amount to a substantial impairment of one of the capacities – t 1-57. 
72. [72]
    Dr Butler thought the “overwhelming contributing factors” to the defendant’s behaviour were the defendant’s underlying psychopathic traits which were amplified by the use of amphetamine and cannabis on that day.  In fact Dr Butler’s view was that the use of drugs that day was so substantial that, absent that, he did not think there was any substantial impairment of any capacity from any other factor – t 1-58.  Dr Butler believed the defendant’s underlying “psychopathic propensity” was the primary reason for his behaviour.  He thought that intoxication with drugs may have impaired one of his capacities, but absent intoxication, he did not think any capacity was impaired – tt 1-58-59. 
73. [73]
    He thought that having regard to what the defendant is observed to have said or done at about the time of the killing, he was not disinhibited, disorganised or delusional, but in fact cold, calculating and intimidating. 
74. [74]
    When he interviewed him, the defendant told Dr Butler he could not remember much of the incident which resulted in the killing and that he felt sick (that is, at time of the interview).  He said, in a way that indicated he was reconstructing, that he believed he must have been paranoid to behave like that.  In these circumstances Dr Butler had little choice but to rely on information from other sources.  Dr Butler’s evidence was that he chose to put more weight on the contemporaneous observations of the defendant than his account to him – t 1-63.  For example, the defendant told Dr Butler that the deceased man hit him and that is why he acted to kill him.  Dr Butler said he was not prepared to act on that information: the defendant was psychotic at the time he examined him, and also, that it sounded to him like an “after the fact rationalisation” – t 1-60. 
75. [75]
    Dr Butler acknowledged at one point, the defendant said that the victim may have been reaching for a gun and that he was frightened because of that.  He pointed out, however, that what the defendant said to the police and civilian witnesses afterwards did not suggest he was frightened or apprehensive of the victim in any way.  In fact, to the contrary.  Thus Dr Butler accepted there was conflicting information that raised an issue about whether the defendant was actually frightened or not.
76. [76]
    Like Dr Phillips, and indeed Dr Grant, Dr Butler mad a choice about what factual basis to accept in providing his report.  He chose the basis that is revealed in the police interview and the many witness statements, rather than the basis revealed in the defendant’s letter of 1 May 2014 and the version of events he gave Dr Grant. 
77. [77]
    Dr Butler thought the defendant was unfit for trial at the time of his report.  He could not say that unfitness was permanent.

Conclusions as to s 269

78. [78]
    Section 269(1) of the Mental Health Act 2000 provides as follows:

“Dispute relating to substantially material fact

3. (1)
   The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.”

79. [79]
    There is case law as to the level of satisfaction which the Mental Health Court must feel before it can determine a reference where either the facts of the offending are in dispute or the facts material to the psychiatric opinion are in dispute.  I will now summarise that law but I think the gist of it is neatly captured in a statement made by Philippides J in Re  Keeys:^[6]

“Clearly, it is not appropriate for the Mental Health Court to embark upon or transgress into the area of fact finding that is ordinarily performed in a criminal trial by a jury, where the facts relating to either the physical or mental elements of the offence are in issue.”

80. [80]
    The Court of Criminal Appeal dealt with this point in R v Schafferius.^[7]  After explaining his reasons, Thomas J (with whom the other members of the Court agreed) concluded as follows:

“Proceedings before the Mental Health Tribunal afford a clear example of proceedings that call for the application of a principle that is sometimes called the Briginshaw principle, namely that the degree of satisfaction to a civil proceeding may vary according to the gravity of the fact to be proved.

…

The above considerations lead to the view that there is no warrant for the application of a standard of proof beyond reasonable doubt, but that findings should be made only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding.  In short, [a proceeding in the Mental Health Tribunal] is a proceeding at the ‘grave’ end of the Briginshaw principle.  Indeed, in cases where it seems that the facts are so in dispute that it would be unsafe to make a determination the Tribunal is required to stay its hand (s. 33(2)).  This is consistent with the view the Tribunal should proceed to a finding only in clear cases, and that it is not intended to be a substitute for a criminal trial, although in appropriate cases it will render a criminal trial unnecessary.  Quite often the precise details of the alleged crime will be critical to the assessment of the alleged offender’s mental condition at the relevant time, and if those details are in any way in dispute the only way to resolve them is by the adversarial scrutiny of a criminal trial before the jury.” – p 383.

81. [81]
    Section 33(2) of the Act being spoken of there provided:

“If in a reference made to it the Mental Health Tribunal is of the opinion that the facts are so in dispute that it would be unsafe to make a determination such as is referred to in provision (a) or (b) of subsection (1), it shall refrain from making the determination but shall inquire and determine whether the person in question is fit for trial.”

82. [82]
                  The Court of Appeal considered this dicta in Attorney-General (Qld) v Kamali.^[8]  It was said:

“The standard of proof in these matters is on the balance of probabilities with the Briginshaw qualification, as confirmed in Schafferius.  Schafferius should not be read as excluding a finding in all but the clearest of cases.  Certainly the gravity of such proceedings warrants the Tribunal’s exercising caution.  But if the judge constituting the Tribunal is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there may be other contrary evidence in the case which the judge is disinclined to accept.”

83. [83]
                  Then in DAR v DPP (Qld) & Anor,^[9] the Court of Appeal said:

“The first point to be made here is that this Court in A-G (Qld) v Kamali did not deny that the cautious approach suggested in R v Schafferius was the correct approach.  The MHC did not err in approaching its fact finding function by searching for clear and convincing evidence of the direction in which the balance of probabilities tilted.”

84. [84]
    I note that the final sentence of the extract from the judgement of Thomas J in Schafferius is particularly appropriate here, where the precise details of the events immediately preceding the offending are in issue and that the defendant’s state of mind is consequently in issue.  I note further that in Re Keeys and also in Re RWC^[10], the Mental Health Court has acknowledged that a dispute of fact includes a dispute of fact as to the state of mind of a defendant at the time of offending where, on a charge of murder, intention is an element of the offence.  Further, I note that the Court of Appeal approved that approach in Hansen v DPP & Anor.^[11]
85. [85]
    Having regard to the factual uncertainties in this matter, as to the events immediately prior to the killing, and as to the defendant’s state of mind at the time of the killing, this matter must be tried before a jury.  The evidence is quite clearly in dispute.

Fitness for trial

86. [86]
    This matter is unusual in that both Dr Phillips and Dr Butler thought that the defendant was not fit for trial, but their reports were out of date on this issue by the time of the hearing.  In these circumstances it was necessary that a good report as to fitness be obtained and during supervision of this matter on 13 December 2017, I particularly asked Counsel for the Chief Psychiatrist to ensure that such a report was obtained.  Disappointingly, Prison Mental Health Services assigned the writing of the necessary report to a doctor who had not seen the defendant before, Dr Venugopal.  Further, assessment of his fitness was arranged by video-link, rather than in person.  It is well known that in difficult cases, such an arrangement is substandard.
87. [87]
    Dr Venugopal records that the defendant was discharged from the Park to Lotus Glen Correctional Centre on 10 October 2017.  He told her he was much improved in his mental health since the time he was admitted to the Park, and she says the medical records confirm this.  He was continuing to be treated with Clozapine.  He displayed no signs of mental illness and reported almost no symptoms; he said he occasionally heard “vague sounds” but was not upset by them.  She performed some quick assessments which revealed no cognitive impairment, and she could not see any signs of it in a 75 minute interview.
88. [88]
    In seeming contradiction to all that, when Dr Venugopal spoke to the defendant about his Court proceedings he gave ridiculous answers.  He said that the Judge’s role was to send people to hell and the role of the prosecutor was to kill people etc etc.  The defendant refused to articulate any understanding of the Court process.  This was in stark contrast to the correct understanding of his legal situation he displayed to Dr Grant on 28 August 2014.  As Dr Grant noted, the defendant had been to Court and indeed jail, many times by that stage.
89. [89]
    Drs Phillips and Butler both assessed the defendant as temporarily unfit for trial.  They saw him on 11 April 2016, and 24 April 2017, respectively.  Dr Phillips thought that the defendant was actively psychotic when she saw him.  Even so, she considered that he understood the Court process.  In his oral evidence, Dr Butler said that the defendant was able to give him a reasonable account of what happens in a courtroom.  Again, he was quite unwell when Dr Butler saw him.
90. [90]
    There is no indication in Dr Venugopal’s report that she tested any of this contradiction with the defendant.  This was notwithstanding that she had been provided with reports of Drs Grant, Phillips and Butler.
91. [91]
    In his oral evidence about Dr Venugopal’s report, Dr Grant said, “I’m a bit sceptical about him saying ‘judge is going to kill me’ or things like that” – t 1-48.  He did not think that the defendant’s cognitive function would have deteriorated.  He could only account for the answers the defendant gave to Dr Venugopal as being due to a worsening in his schizophrenia (which her report says there is not) or due to the defendant being dishonest with the examiner – t 1-49.  Likewise Dr Butler could not explain why the defendant would have reported to Dr Venugopal that he did not understand courtroom procedure when his psychotic illness had improved since he saw him – t 1-62.  He agreed the only possibilities were an active delusional process or a deliberate attempt to appear ill – t1-62.  Dr Butler thought that any unfitness could only be temporary and agreed with me that the defendant had sat through quite a long day in Court, appearing to be concentrating intently – t 1-63.
92. [92]
    Dr Davison and Dr Phillipson, my assisting psychiatrists, were critical of Dr Venugopal’s report.  Not only had the psychiatrist never seen the patient before, she attended only once, not multiple times, as Dr Davison in particular thought would be necessary in order to understand the defendant’s presentation.  The report makes no attempt at all to grapple with the fact that the defendant has personality traits, at least, and perhaps anti-social personality disorder with psychopathic features, which would incline him to be manipulative and dishonest.  No thought seems to have been given to a forensic analysis of his presentation.  Glaring anomalies were not challenged and it seems not to have occurred to the doctor that there was a very distinct possibility that the defendant was being dishonest with her.  The report is most unsatisfactory. 
93. [93]
    I have the strong suspicion that the defendant is fit for trial and was presenting dishonestly to Dr Venugopal.  Nonetheless, her report is the only contemporary evidence as to fitness and I must act in accordance with it and not my suspicions.  I must find the defendant temporarily unfit for trial.  I am therefore obliged to make a Forensic Order.  I will detain him at the Park, for that is the only suitable facility.  There will be no limited community treatment granted.