R v Clough[2009] QSC 231

SUPREME COURT OF QUEENSLAND

1. Wilson J:  Colin Barry Clough stands charged with the murder of his wife Leanne Elizabeth Clough on 16 September 2005.  He has pleaded not guilty to the charge.

Trial by judge alone

2. On 28 November 2008 another judge of the Trial Division ordered that he be tried by a Judge sitting without a jury^[1].  The trial has been conducted accordingly.

Onus of proof

3. It is apposite to explain at the outset where the onus of proof lies in this trial.  

1. The prosecution bears the onus of proving beyond reasonable doubt that the defendant murdered his wife.

2. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.^[2]

3. As I shall explain, the defendant contends that he was of unsound mind at the relevant time, or alternatively that he was in such a state of abnormality of mind as to be guilty of manslaughter only.

4. The defendant bears the onus of proof on the balance of probabilities that he was not of sound mind at the relevant time.

5. The defendant bears the onus of proof on the balance of probabilities that he was in such a state of abnormality of mind as to be guilty of manslaughter only.

Course of trial

4. The prosecution led evidence on the charge of murder and closed its case. When called upon, the defendant elected not to give evidence himself but to call evidence from three psychiatrists and a pharmacologist.  After the close of the defence case, the prosecution was given leave to call two psychiatrists in rebuttal.

5. Submissions were received first from counsel for the defendant and then from the prosecutor. In each case the submissions were partly oral and partly in writing. Counsel for the defendant was afforded an opportunity to reply on matters of law, but he chose not to do so.

Elements of murder

6. It is unlawful to kill another person unless the killing is authorised, excused or justified by law.  Doing an act that is a substantial or significant cause of death or which substantially contributes to it amounts to "killing".  Unlawful killing amounts to murder where, relevantly, the perpetrator intends to kill or to do grievous bodily harm to the victim.^[3]

Evidence in relation to murder

7. My verdict must be reached only on the evidence put before me during the trial. The evidence called by the prosecution to prove the charge consisted of -

1. oral testimony of the defendant's mother, his stepfather and his sister;

2. oral testimony of his friend Kurt Anderson;

3. oral testimony of two psychiatric nurses at the Logan Mental Health Service - Messrs Fancourt and Naci;

4. oral testimony of the investigating police officer Dean Richard Anderson;

5. oral testimony of Dr Alex Olumbe, the pathologist who conducted the post mortem examination of Leanne Clough;

6. an audio tape recording of a conversation between a police officer and the defendant's then eight year old daughter Elizabeth Clough;

7. a video tape recording of a police record of interview with the defendant;

8. patient file relating to the defendant held by the Logan Mental Health Service;

1. various photographs;

10. a floor plan of the house where the incident occurred prepared by police and another  floor plan drawn by the defendant during the record of interview;

11. admissions made by the defendant.^[4]

8. As I have said, the prosecution bears the onus of proving the charge of murder. No inference can be drawn from the defendant's election not to give evidence himself. He was interviewed by police over almost three hours on the day of the incident.  Having been warned that he was not obliged to participate in the interview, he did so willingly.  Of course, what he said was not on oath and it was not tested by cross-examination.  The record of interview is relevant in so far as it contains admissions and in so far as it provides some of the evidentiary foundation upon which his mental state is to be assessed.

9. I was provided with transcripts of the video tape of the record of interview and of the conversation with the child Elizabeth Clough.  The evidence consisted of what was seen and heard when the tapes were played.  The transcripts were of assistance in following the tapes as they were played, but where there are discrepancies between what I heard and what is in the transcripts, I have had regard to what I heard.

10. The tape recorded evidence of Elizabeth Clough was admitted pursuant to s 93A of the Evidence Act 1977.  Counsel for the defendant did not wish to cross-examine her.  The evidence is of no more or no less probative value because it was given in that way; nor is it to be afforded any different weight from that which it would be accorded if it were given in the courtroom.  No inference as to the defendant's guilt is to be drawn from the fact it was given this way.

11. Intention is a state of mind, and it is necessarily a matter of inference whether a person has an intention to kill or to do grievous bodily harm.  An inference may be drawn only from proved facts. It is necessary to consider all of the relevant surrounding circumstances.  The charge of murder will have been proved to the requisite standard only if the only logical inference from the proved facts is that the defendant intended to kill his wife or to do her grievous bodily harm.

Evidence in relation to the defendant's mental state

12. Counsel for the defendant called -

1. Dr Pamela Van de Hoef, psychiatrist;

2. Dr Sean Tracey, psychiatrist;

3. Dr Michael Beech, psychiatrist; and

4. Dr Lindsay Brown, pharmacologist; and

tendered the clinical file relating to him kept by The Park - Centre for Mental Health.

13. The prosecutor called -

1. Dr Edward Heffernan, psychiatrist; and

2. Dr Jill Reddan, psychiatrist; and

tendered the results of a drug screen of a sample of the defendant's urine collected on 20 September 2005.  He made some formal admissions about that testing. 

Background to the charge

14. The defendant was a 38 year old man, born on 14 September 1967.  He and his wife Leanne lived at Meadowbrook.  They had three children - Kyla, an adolescent who lived with his mother and step father at Camp Hill, and Elizabeth (8 years) and Nicholas (5 years), who lived with them at Meadowbrook.

15. For many years the defendant had been abusing illicit drugs.  Relevantly, he had been using cannabis since he was 15 and methylamphetamine since he was 32.  He had a psychotic disorder, and was a client of the Logan Mental Health Service, which was providing ongoing management of his disorder. The psychotic disorder first manifest itself at about the same time as he commenced using methylamphetamine, but I cannot be satisfied which of those events occurred first.  The disorder waxed and waned in its floridity.  The defendant was admitted to hospital three times on account of it - twice in 2003 and once in 2005. Each admission was in the context of substance abuse.  He also spent five days at the Hospital Alcohol and Drugs Service unit at the Royal Brisbane Hospital in March 2005.  Generally his symptoms improved with abstinence and treatment.

16. In the year leading up to Leanne Clough's death the defendant suffered various persecutory delusions, including delusions about the presence of people in the ceiling spraying acid on him, people in his mattress doing him harm, codes hidden in salami wrappers, people shining lights into his house, and people plotting against him. The persecutory ideations waxed and waned.  He was receiving anti-psychotic medication, flupenthixol, which was administered intravenously every fortnight by his case manager, Mr Naci. When he was frightened, he took his wife and the children to his mother's house, which was the only place where he felt safe.

17. The defendant was subject to various psychosocial stressors arising from his lifestyle. He and his wife were constantly short of money. Their relationship was unconventional, in that they had a friend Justin living with them, and the three of them engaged in group sex. He and his wife accused each other of having affairs. 

18. There was a pattern to the defendant's drug use - half a gram of speed (methylamphetamine) administered intravenously every two to three days and 10 - 20 cones of marihuana smoked daily.

19. Leanne Clough also used illicit drugs. She, too, was a client of the Logan Mental Health Service. There was no evidence of the nature of any disorder from which she may have been suffering; suffice it to say that her condition was apparently not as serious as the defendant's.

20. Mr Kurt Anderson was a friend of the defendant. They had a common interest in music, both being drummers. The defendant used to visit Mr Anderson at Loganlea two or three times a week. Together they would consume a six-pack of premixed bourbon and cola. Some time before the homicide the defendant told Mr Anderson that he believed his wife was having an affair with David Assinuma ("David Asso"). David Asso was a friend of Kurt Anderson. Mr Anderson told Mr Asso and another friend, Shane Dixon, what the defendant had said.  Mr Asso took offence and called the defendant, who was then upset with Mr Anderson.

21. In the three weeks leading up to the homicide, the defendant's condition was deteriorating.

22. On 25 August 2005 (a Thursday) the defendant and his wife attended the clinic at the Logan Mental Health Service, where he had an appointment with  Mr Naci.  They told Mr Naci that someone was shining lights into their house.  He said he had not used speed since the preceding Sunday.   He said that his drug using friends were plotting against him.  He was fearful these recent incidents could trigger his psychosis.  He agreed with the suggestion that his paranoia could be based on real perceived threats.  Mr Naci administered flupenthixol.  The next day Mr Naci rang the defendant to check on him: he seemed better.  Flupenthixol was administered again on 2 September 2005.

Murder

23. Leanne Clough died at or about 9:00 am on Friday 16 September 2005. I am satisfied beyond reasonable doubt that she bled to death as the result of a stab to her left chest, which severed her left pulmonary artery, and that it was the defendant who stabbed her.

24. I am satisfied that the defendant used illicit drugs in the days leading up to her death as follows:

• On Sunday he smoked marihuana.

• On Monday he injected speed and probably smoked marihuana.

• On Tuesday he smoked marihuana.

• On Wednesday (which was his birthday) he injected half a gram of speed and smoked marihuana;

• On Thursday he smoked marihuana.

25. On Wednesday 14 September the defendant injected about half a gram of speed and smoked some marihuana.  Then he and the two young children visited Kurt Anderson.  The defendant took some cans of pre-mixed bourbon and cola to Mr Anderson's.  As they drank it, he said it tasted "weird";  According to Mr Anderson it was not as sharp as it might have been and was perhaps "a bit off".  There were one or two pairs of scissors present at Mr Anderson's.  Later, in the evening, there was a barbecue dinner for the defendant's birthday at his mother's place.  According to his mother he was quiet.  He was concerned that someone had spiked his drink earlier in the day.  He was concerned, too, that Family Services had spoken to his wife about the children, and that he had to see them the next morning.  He told his mother that he thought his wife had arranged for Family Services "to check them out", and his mother replied that she would not have done that.  His sister, Jennifer Clough, said he seemed depressed, and would not speak to her.

26. The next morning officers of Family Services visited him at Meadowbrook.  Mr Naci paid him a home visit and administered a flupenthixol depo injection.  His wife was present - she was quite relaxed.  They told Mr Naci that someone was shining lights towards the windows of their front room and bedroom.  They believed someone was deliberately playing games with them, which was generating some stress.  Mr Naci suggested they contact the police.  He observed no psychomotor agitation, no preoccupied worries or paranoid ideation, and no evidence of overt psychotic symptoms.  Later the defendant’s mother telephoned him to ask how the interview with Family Services had gone.

27. That evening the defendant, his wife and the two young children arrived unexpectedly at his mother's house. Only his step father was home. The defendant appeared nervous and frightened. He said someone was flashing lights into his house and wanting to kill him. His mother arrived home. The defendant told her he was frightened for his life. He said that he thought his wife had called Family Services to get him into trouble. His mother raised this with his wife, who replied that he had been accusing her of this for a few days. The defendant then said, "Well, why did you have to say that to Leanne for, Mum?" At some point Jennifer Clough arrived with Kyla. She tried to speak to the defendant, but he did not even acknowledge her presence.  She said he looked really angry, and that the look in his eyes really scared her.  She also said that he had a "real blank look" and was emotionless.  She said she had seen him unwell before, but not like this.  Jennifer left about 7.10 pm taking Kyla with her.

28. The defendant's wife was upset and wanted to return to Meadowbrook. Then she went to bed in the room usually occupied by Kyla. The defendant slept in the same bed. The two young children slept on a single mattress on the floor of the same room.

29. Shortly after 3.00 am Elizabeth woke when she heard the bedroom door open. The defendant was walking out of the bedroom into the kitchen (which was the adjoining room). 

30. According to the defendant he woke about 6.00 am, and looked at his sleeping wife, thinking how much he loved her.  He was anxious about having to return home.  He  thought she was part of a criminal conspiracy to kill him.  The children woke about 7.00 am, and went into another room to play.  He got dressed in track suit pants and a blue shirt, and went out of the bedroom for a cigarette.  He continued to think about his wife, about her allegations that he had had various affairs, and her involvement in a conspiracy to kill him.  The following passage occurred in the record of interview –

"SGT ANDERSON: Uh hum.  Okay so what happened then, was Leanne still asleep at 8 o’clock?

CLOUGH: Yeah it was.  Yeah.  I sat there for about another half an hour and she woke up, and she just opened her eyes up, and then she closed them again.  And then, oh, I don’t know what I thought through my head, every, everything just went so crazy on, on me, I just thought, I’ve either got to, I’ve, see that was one of my other options, it was to hurt Leanne, but I thought I can’t hurt her, I’ve got to, if I’m going to do anything, I’m going to have to take her life, you know, kill her.  Because then that way, you know, I’m not going to feel like, because they wanted to, to do some really nasty things to me.  And, and I couldn’t have suffered that, and, and I couldn’t handle my mother been killed as well, because that, she made out that, it looks like that my, mother’s one to blame, or my sister is.

SGT ANDERSON: Huh hum.

CLOUGH: See I mean a lot other things have taken place up unto this events you know, like people I know, their dealers have been getting busted and all this sort of stuff.  And they’re all people that I know, you know, and it’s, and in my head it’s making me think, there purposely setting me up, because the guy I buy speed off reckons his dealer got busted for 4 ounces, only three weeks ago, so he changed his phone number.  And, and I’m started to think, this isn’t true you know, because he knows Jodie and Jodie knows Dave and everybody knows everyone you know, Dave Vasso.

SGT ANDERSON: Uh hum.

CLOUGH: So, and they’re making out that there’re all these big busts going down, and I don’t even believe it happened you know.  And um, and they just saying that and they’re going to point the finger at me and make out that I’m the one that, that’s dobbing everybody in you know.  And I’m giving the police information, about people, about dealers that I know, but, the police aren’t busting them dealers, they’re going through their phone records and busting the big dealers.

SGT ANDERSON: Uh hum.

CLOUGH: And because they’re all talking about it, and Jodie says yeah my dealer got busted this year, earlier this year and I, I look at all these people that got done and, and I’m talking about seven people, and I didn’t dob all these other people in, but, they’re all making out that all these people got dobbed in, and that I’m the one that done it. And that’s how I feel, how I feel everything was happening, because there’s no way, you know.  And, and when I saw the, this Dave guy, oh, because, cause he, he sells a bit of speed to um Jodie.

SGT ANDERSON: Is this Dave Vassoma?

CLOUGH: No this is Dave Smith.

SGT ANDERSON: Okay. Yep.

CLOUGH: Dave Smith, it’s um Leanne’s step brother.

SGT ANDERSON: Yep.

CLOUGH: Oh he told me, to ring up Jodie on her home phone, and tell Jodie, um, that I’ve got your stuff for you, and he said tell her, just say it’s a socket set and then give her directions to here the garage is, where I work.

SGT ANDERSON: Hum hum.

CLOUGH. And so, dumb of me I didn’t even think, you know, if I’m, I’m saying that sort of stuff over somebody’s home phone, they’re not going to like you, because it sounds like a drug deal going down you know.

SGT ANDERSON: Um.

CLOUGH: You know, ring oh Jodie, Dave said yeah and you can come over now, he’s already got it for you, he’s got that socket set for you.  And you’ve got to get here, this way and to this certain servo.  Now I didn’t, I thought hang on, she already knows where this servo is, because I introduced them together about six weeks earlier.  So obviously she must have, me up with him in the day time when he working you know, so why would she want me to give her directions for.  And, and then I thought maybe she’s recording it, using an answering machine or something, and recorded that conversation, and then she’s played that to other people, other big players in the game, and says this is what this Colin’s like, this is how he talks on the phone.

SGT ANDERSON: Uh hum.

CLOUGH: When all I’m doing is saying exactly what Dave told me to say.  So, so Dave is setting me up there as well you know, it’s, ah, that’s how I see that one.

SGT ANDERSON: Um.  Just getting back to what you saying, like Leanne woke up and then closed her eyes and you were, you were thinking things like?

CLOUGH: I didn’t know what to do and then I’ve, see I’d already had the knife in my pants, I got the knife out about half an hour early from the drawer, and I was sitting in the room for about half an hour, just thinking what am I going to do you know.  I could just pull out the knife and threaten her with it, but if I do that, she’s definitely going to take off, to her mother’s place, and, and then, plus they’re definitely going to get me as well anyway you know, cause I’ve sort of threatening her again with a knife, you know."

31. His mother was watching television. He sat down beside her and told her how scared he was. She told him he was having a psychotic episode and wanted to take him to hospital. She went to the phone to call the Mental Health Service.

32. The defendant had fetched the larger of two knives from the kitchen and secreted it in his pants. While his mother was on the phone, he went into the bedroom, locked the door and stabbed his wife a number of times in a frenzied attack.

33. In the record of interview he described what he did in these terms –

"CLOUGH: Well I thought she was about to wake up and then I thought the kids were going to come to the door, and I thought as soon as the door opens and she goes outside, I won’t be able to do it.  It’s either I’ve got to do it now, or else I won’t be able to do it at all.

SGT ANDERSON: Uh hum.

CLOUGH: And then all of a sudden, I just pulled the knife out of my pants, pulled the blanket off of her and just went stab straight down into her chest.  Okay and I pulled it straight out and she instantly opened her eyes up and she grabbed the blade, while, while I was holding the knife, and she’s pulled it away, and then I’ve tried to grab the knife again, and that’s how I’ve cut my fingers.

SGT ANDERSON: Okay.

CLOUGH: From, from grabbing it.  And then we sort of, wrestled, she wrestled a bit, because I was on the bed with her, cause I want to, to stab her again.  And um, I don’t know she sort of got up, and I, I did get her again, oh I don’t know where, around her stomach or somewhere, or near her arms or arms or something.  And then she managed to get to the door and open the door up, because she yelled out, Mum.  That’s what she calls my Mum.

SGT ANDERSON: Uh hum.

CLOUGH: When I’d first done it.  And then I thought, no that’s enough, I’m not doing anymore, I, I um, I just, I had, still had the knife in my hand, and ah, she was standing at the door, I think she was just about to collapse, and my two kids come running over and saw their mother, with blood coming out of, of her nightie and all that, and, and they got upset, and I just ran straight out the door, and my mother, come in, and my mother was there I mean, and she was screaming at me, Colin look what you’ve done, look what you’ve done, you know, just stay there, don’t you go anywhere, while she was trying to dial, obviously triple 0."

34. His mother heard Leanne screaming. Finding the door locked, she fetched a key and opened it. Leanne was standing, bleeding. According to his mother, the defendant said, "I had to do it, Mum. I had to do it." Leanne staggered to the kitchen door, where she collapsed in a pool of blood. Elizabeth recalled that when the door was opened her mother and father were inside. Her mother was on the ground near the door, with blood spilling out of her. She tried to stand and walk to the kitchen, but fell over.  The defendant grabbed his shoes from next to the bed and ran out to his car, saying "I'm sorry, ma.  I just can't take it."

35. I accept the evidence of the pathologist, Dr Olumbe. He found 11 wounds on Leanne Clough's body, only one of which he considered fatal.  He was shown the knife subsequently located in the defendant's car.  It had a metal blade 20.5 cm long with a serrated edge.  Its maximum width was 22 mm.  In his opinion the fatal wound was consistent with the use of that knife and the application of moderate to severe force.

36. The fatal wound was a stab wound to the left mid-chest. It penetrated the skin, continued through the breast muscle, traversed the third intercostal muscle, pierced the upper lobe of the left lung, severed the left pulmonary artery, severed the seventh intercostal muscle and left an imprint on the seventh rib. There was unquantified bleeding in the wound track. There was also about a litre of blood accumulated in the chest cavity from the severed pulmonary artery - enough to cause death in some individuals. In Dr Olumbe’s opinion, Leanne Clough would have experienced massive and quick blood loss, especially because the artery was severed so close to the heart. In addition, there was blood found at the scene, predominantly on the left side of the body.

37. Dr Olumbe considered some of the other wounds to be defensive in nature, and some not. The defensive wounds consisted of -

1. two superficial linear scratches to the palm of the right hand;

2. a superficial wound to the back of the right hand;

3. multiple superficial wounds to the palm of the right hand;

4. two superficial wounds to the back of the left wrist, consistent with the serrated edge of the knife; and

5. a cluster of abraded wounds with some red bruising on the inner aspect of the left upper arm, consistent with blunt trauma.

The non-defensive wounds consisted of -

1. a superficial stab wound to the back of the left shoulder, which must have been inflicted from behind;

2. a wound to the right side of the neck;

3. a shallow wound across the front of the throat;

4. a wound to the mid chest; and

4. another wound to the mid-chest.

38. The defendant has never denied that he stabbed his wife and that she died from one of the wounds he inflicted.  There is no doubt that he was psychotic at the time.

39. The prosecution relies on the following  evidence as proof that the defendant intended to kill his wife, or at least to do her grievous bodily harm:

1. his admissions in the record of interview;

2. his mother's evidence;

3. Elizabeth's evidence;

4. that there was blood in the bed;

5. that he chose the larger of the two knives that were available;

6. that he secreted the knife in his pants;

7. that he locked the bedroom door;

8. that his wife was lying there passively, unaware of what was about to happen;

1. that, on the psychiatric evidence (to which I will turn shortly), neither his capacity to understand what he was doing nor his capacity to control his actions was substantially impaired or absent;

10. that the fatal wound was inflicted over the left chest;

(k)that there was a struggle in which other wounds, some defensive and some not, were inflicted;

(l)that from DNA analysis, blood samples taken at the scene were consistent with that of the defendant and that of Leanne as follows :

-on the blade of the knife - Leanne

-on the handle of the knife - the defendant

-on the defendant's body - Leanne

-on the defendant's hand - the defendant

-on the defendant's clothing - both the defendant and Leanne

40. Counsel for the defendant at first conceded that I may have little difficulty in being satisfied that at some stage during the attack the defendant must have intended to kill his wife, or at least to do her grievous bodily harm. He said that the defendant's description of the first blow really left little alternative. Much of the trial was taken up with the question of whether the defendant was intoxicated at the time of the killing and so unable to rely on either the insanity defence or diminished responsibility, questions which I shall address in due course. On the question of intent, counsel for the defendant subsequently submitted that if his client could not rely on s 27 (the insanity defence) his psychotic state and his intoxication (assuming I found he was intoxicated) would be relevant to whether he in fact formed the intent.

41. On all of the evidence, including the evidence that he was psychotic and the evidence of the effect of drugs on his mental state at the time of the homicide,  I am satisfied beyond reasonable doubt that the defendant had the requisite intent to kill his wife, or at least to do her grievous bodily harm.

The defendant’s mental state

42. The defendant fled his mother’s house in his motor vehicle, his ultimate destination being the Logan Mental Health Service. On the way there he stopped and telephoned his friend Kurt Anderson and told him that he had just killed his wife. His said, "I’ve just found out that Dave was sleeping with Leanne for a long time." He seemed to be blaming Mr Anderson for the situation he was in. This all made no sense to Mr Anderson because the defendant had known about his wife’s relationship with Dave a long time before. The defendant resumed his journey. He stopped for some cigarettes and a drink and then drove to the Mental Health Service.

43. At the Mental Health Service he spoke first to Michael Fancourt, a psychiatric nurse, and then to Mr Naci. He told Mr Fancourt that he had stabbed his wife because she was accusing him of having affairs with other women and that his home at Meadowbrook was being ambushed by people shining lights into it. He said he had wanted to kill four other people, but he had changed his mind. He told Mr Naci that he had stabbed his wife because she was in a conspiracy to kill him, and that he thought he might have killed her, although he hoped he had not.

44. The police arrived at the Mental Health Service, and found the knife where the defendant said it was – on the front seat of his motor vehicle. They took him to the Upper Mt Gravatt Police Station where he was interviewed between 3.22 pm and 6.10 pm. At the commencement of the interview Sergeant Anderson asked him if he were under the influence of alcohol or drugs. He said that he had not taken any drugs that day, and that he had last taken drugs, namely speed and marihuana, on his birthday two days before. Over the course of the interview he described numerous delusions and gave his account of why he had stabbed his wife. He was clearly out of touch with reality – that is, psychotic. He was nevertheless able to draw a floor plan of his mother’s house. He told police they would find some capped syringes in the drawer of the ensuite bathroom in his house at Meadowbrook. He also asked them to search for listening devices in his house. They later searched the house: they found the syringes and a very small quantity of crystalline methylamphetamine where he had told them to look, but they did not find any listening devices. Dr Reddan, who heard an audio tape of the interview, considered that his speech was somewhat pressured, and it is apparent from the video tape that he swayed back and forth on his swivel chair for a good deal of the interview. No blood or urine sample was taken from him that day.

45. When police attended at the crime scene (his mother’s house), they did not find any drugs or drug paraphernalia.

46. After his arrest the defendant was in the watch-house until 20 September 2005 when he was transferred to The Park – Centre for Mental Health as an involuntary patient. A urine sample was collected at 4.30 pm on 20 September 2005 and screened for drugs. Cannabinoids and sympathomimetic amines were detected. Methylamphetamine is such an amine.

47. The defendant remained at The Park for about 10 and a half months. Dr Van de Hoef assessed him on 26 September, and continued to see him throughout his stay there. He was put on anti-psychotic and other medication. By mid-January 2006 he was largely free of his psychotic symptoms, but he was continued on anti-psychotic medication until he was transferred back to custody in August 2006.

48. Dr Tracey of the Prison Mental Health Service reviewed the defendant between March 2008 and December 2008 (initially in his capacity as a psychiatric registrar and subsequently as a consultant psychiatrist). He was on anti-psychotic medication throughout that period.

49. The other psychiatrists who gave evidence had assessed the defendant for medico-legal purposes –

-Dr Reddan on 7 April 2006 and 5 May 2006

-Dr Heffernan on 17 April 2006 and 7 June 2006

-Dr Beech on 6 February 2009.

50. There is no doubt that when the defendant killed his wife he was suffering from a psychotic disorder. The psychiatrists all wrestled with question of diagnosis – whether the defendant suffered from schizophrenia or drug induced psychosis. The Logan Mental Health Service had diagnosed him as suffering from schizophrenia. Ultimately the diagnoses were as follows –

-Dr Van de Hoef – schizophrenia

-Dr Beech – schizophrenia

-Dr Heffernan – schizophrenia

-Dr Reddan – drug induced psychosis

-Dr Tracey – schizophrenia.

51. Section 27 of the Criminal Code provides –

"27Insanity

(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.

(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 for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”

Section 304A provides –

"304ADiminished responsibility

(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.

(2)On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.

(3)When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons."

52. Schizophrenia and drug induced psychosis are both "mental diseases" within the meaning of s 27 and "diseases" within s 304A.

53. Drs Van de Hoef, Beech, Heffernan and Reddan were all asked for their opinions about the defendant’s three capacities at the time he killed his wife – (i) his capacity to understand what he was doing; (ii) his capacity to control his actions; and (iii) his capacity to know that he ought not do the act. They all considered that he retained the first two capacities, but that his capacity to know he ought not do the act was affected. Drs Beech, Heffernan and Reddan thought that he was deprived of that capacity, while Dr Van de Hoef thought that that capacity was substantially impaired. I am persuaded by the majority view that on the balance of probabilities he was deprived of that capacity.

Intoxication

54. Section 28 of the Criminal Code provides –

"28Intoxication

(1)The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.

(2)They do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.

(3)When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed."

55. Before he may rely on the deprivation of capacity to excuse him from criminal responsibility, the defendant must establish, on the balance of probabilities, either that he was not intentionally intoxicated within the meaning of s 28 or if he was that the mental disease itself was of sufficient severity to deprive him of capacity regardless of the intoxication.^[5]

56. Further, intentional intoxication does not fall within any of the categories of abnormality of mind in s 304A of the Criminal Code.^[6]

The effect of drugs on the defendant’s state of mind at the time of the homicide

57. There are four substances to be considered – flupenthixol, alcohol, cannabis and methylamphetamine.

58. I am satisfied on the balance of probabilities that the alcohol the defendant consumed on Wednesday 14 September had no part to play in his mental state at 9.00 am on Friday 16 September. I accept the evidence of Dr Brown that it would probably have been completely removed from his body within 12 hours, and certainly within 48 hours.

59. Further, I am satisfied on the balance of probabilities that the flupenthixol administered on Thursday 15 September played no part in disordering his mind at 9.00 am the next day. I accept the evidence of Dr Brown that it is a very slow release anti-psychotic medication with no chemical similarity to methylamphetamine or cannabis. Further, I accept the evidence of Dr Beech that flupenthixol is a protective medication, not one which would potentiate the intoxicating effects of other drugs.

60. That cannabinoids and sympathomimetic amines were detected in the defendant’s urine four days after the homicide confirms the other evidence that the defendant had used cannabis and methylamphetamine, but it says nothing about the effect of those drugs on his mental state at the time of the homicide.

61. The active ingredient of cannabis which causes a euphoric effect is tetrahydrocannabinol. It is transformed into inactive metabolites after consumption.

1. Dr Beech said that the euphoria can last six to eight hours, or even 10 to 12 hours.  He acknowledged that tetrahydrocannabinol can build up in the body of a chronic user, but doubted that it could continue to have cognitive effects after the initial period of euphoria.

2. Dr Reddan said that, in the case of a chronic user, there are still psychoactive substances in the body for many days after the last ingestion. However, she thought that in the defendant’s case amphetamines were more relevant than cannabis to the defendant’s state of mind on the Friday morning.

3. Dr Heffernan considered that the consumption of cannabis on Wednesday and Thursday had a role to play in the disturbance of the defendant’s mental state on the Friday morning.

(d) Dr Brown said that this transformation of tetrahydrocannabinol into inactive metabolites takes place within five to six hours after consumption.  The active ingredient of any cannabis consumed on Thursday 15 September would have been removed sometime during that evening, and would have been gone by 9.00 am the next morning. The inactive metabolites have very long half-lives: their presence in the blood is able to be measured for one to two months after a single ingestion. 

62. Methylamphetamine does not break down into active and inactive components. On injection it travels to the brain and other organs with a very high blood flow (the heart, liver and kidneys). According to Dr Brown its half life is about 11 hours. Decreasing concentrations in the blood are then recirculated and redistributed away from these very well perfused organs.

63. When the methylamphetamine reaches the brain, it causes a release of dopamine, which travels to other cells. This effect is colloquially referred to as the "high" experienced by users, and is characterised by increased heart rate, sweating, cognitive stimulation and euphoria. The "high" wears off after some hours.

64. I accept that the defendant last used methylamphetamine on Wednesday 14 September, when he injected half a gram. On Dr Brown’s calculations only about 1/16 of that dose would have still been in his body 48 hours later – that is, about 30 mgs, which is very close to the dose used therapeutically to treat children with ADHD. To be still detectable on 20 September (six days after the last dose), the dose would have had to have been at least five times greater than claimed. He accepted that in a chronic user there may be a change in the acidity of the urine with an accompanying change in the excretion rate, but doubted that there would be a sufficient change to account for the presence of the amines six days later. Similarly, while chronic long term use may account for a longer half life, he doubted it would account for the presence of the amines six days later.

65. The presence of the amines six days later is a paradox. Be that as it may, I accept the opinions of the psychiatrists, in particular Drs Beech, Heffernan and Reddan, that by 9.00 am on the Friday the methylamphetamine consumed on the Wednesday would still have been having a deleterious effect on the defendant’s mental state. Those opinions are based on clinical experience and they are consistent with the relationship between substance abuse and exacerbation of psychotic illness in the defendant’s own history.

66. Dr Beech explained that after the high had faded, the defendant would have been left with a physiological insult to the brain which exacerbated his underlying psychotic illness. He said –

"… the effect of the drug is to cause a chemical change and in people who are not necessarily vulnerable to that chemical change it might be brief, but in people who are schizophrenic they are vulnerable to that chemical change and it persists then and so the drug has stirred up the illness."

In the defendant’s case the effect was more than transient, because he remained psychotic for some months.  Later he said that people with schizophrenia have a complex sensitivity to dopamine, and that the presence of excess dopamine causes psychosis and causes it to continue.

67. Dr Heffernan explained that after the high had passed, the defendant would have been left with a cerebral disturbance, probably related to pharmacodynamics (the interaction of the substance on the brain). He referred to theoretical discussions that there is a significant biological disturbance in the neurotransmitters and the neurochemicals related to the normal brain homeostasis: these discussions fit with clinical observations. He said that it is not known how long amphetamine continues to act in the brain.

68. I understood Dr Reddan’s evidence to be that the amphetamines consumed on the Wednesday were almost certainly still psychoacting on the defendant’s mental state of the Friday morning.

Deprivation or substantial diminution of capacity

69. In Dr Beech’s opinion the defendant’s mental state deteriorated because of the drugs taken "one, two days before". They exacerbated his illness. It was that exacerbation which deprived him of the capacity to know he ought not do the act or substantially diminished that capacity.

70. In Dr Heffernan’s opinion amphetamine intoxication (in the secondary sense of cerebral disturbance after the high had worn off) was a significant contributor to the defendant’s psychotic state at 9.00 am on the Friday morning and his deprivation of capacity to know he ought not do the act.

71. In Dr Reddan’s opinion amphetamine intoxication (in the sense of continuing psychoacting effect) was a driver of the defendant’s mental state at the relevant time: his capacity to know he ought not do the act would not have been substantially impaired or absent with it.

72. In Dr Van de Hoef’s opinion the psychotic disorder "drove the offence", but intoxication "helped to take the brakes off".

Findings

73. I am satisfied on the balance of probabilities that at the time of the homicide on Friday 16 September 2005 –

1. the defendant was suffering from a psychotic disorder which was a "mental disease" within the meaning of s 26 of the Criminal Code;

2. he was psychotic;

3. methylamphetamine which he had voluntarily consumed on Wednesday 14 September was continuing to have a deleterious effect on his mental state;

4. he was deprived of the capacity to know he ought not do the act;

5. he would not have been deprived of that capacity but for the continuing effects on his mental state of the methylamphetamine which he had voluntarily consumed on Wednesday 14 September;

5. there would not have been a substantial impairment of that capacity but for the continuing effects on his mental state of the methylamphetamine which he had voluntarily consumed on Wednesday 14 September.

Intoxication and the application of s 26 of the Criminal Code

74. The meaning of "intoxication" in the Criminal Code is a question of law. Dr Brown and the psychiatrists told the Court what they meant by intoxication. There was no real consensus among them. This evidence was admitted to explain their other evidence, not to answer the question of law.

75. It is clear from s 28(2) that "intoxication" is something which has the effect of disordering the mind.

76. In the case of amphetamines, consumption results in a "high" which lasts for the first few hours after consumption, followed by a cerebral disturbance which can last for a considerably longer period. It was that secondary effect which was still operating on the defendant’s mental state at the time of the homicide.

77. The ordinary meaning of "intoxication" is wide enough to encompass more than comparatively short term elation or stimulation. The Macquarie Dictionary contains these definitions –

"1. inebriation, drunkenness.

2. Pathol. Poisoning

3. the act of intoxicating.

4. overpowering action or effect upon the mind"

and in the Shorter Oxford Dictionary it is defined  as –

"1.the action of poisoning; (an instance of) the state of being poisoned……

2. The action of inebriating or making someone stupid, insensible or disordered in intellect, with a drug or alcoholic liquor; the condition of being so stupefied or disordered…fig The action or power of exhilarating or highly exciting the mind; the elation or excitement beyond the bounds of sobriety."

(Emphasis added.)

78. In my view "intoxication" in s 28(2) of the Code includes the secondary effect of amphetamine consumption from which the defendant was suffering at the time of the homicide.

79. I am satisfied that the defendant had intentionally caused himself to be intoxicated with methylamphetamine. Accordingly he cannot rely on s 27 of the Code to absolve him of criminal responsibility for the homicide.

80. As intentional intoxication is not one of the categories of abnormality of mind referred to in s 304A, that section has no application to diminish his responsibility for the homicide.

Verdict

81. I find the defendant Colin Barry Clough guilty of the murder of Leanne Elizabeth Clough on 16 September 2005.