Guff v The Commissioner of Police

Guff v The Commissioner of Police - [2007] NSWDC 290 - NSWDC 2007 case summary — Zoe

[121]

105 Another workmate, Senior Constable Bieder, also gave evidence about the effect of this accident upon the deceased. After having his attention turned to the accident of 15 September 2002 this evidence was given: "Q. As best as you can observe, did that have a deleterious impact upon David's personality or work performance? A. That came after a lot of this other stuff we've just been talking about and that was the straw that broke the camel's back from my observations. It - the accident itself was - it was just an accident, it was just one number of those things that happened and he was extremely upset and concerned about the girl involved in the accident, more so for the fact that it looked like she may not be able to have children, and he spoke to me numerous times about the - that that really worried him more than anything, you know, the broken bones and stuff can be - and then she'd be - you know, will repair and what not but the fact that she may not be able to have children really upset him. And he spoke to me about wanting to send flowers to the hospital but thought it would be construed as an ulterior motive in those actions. And he also wanted to speak to her you know because he felt so bad about it and it was - there was no malice, I mean he was only doing about 5 kilometres an hour when it happened, it was just an accident. Q. You're aware that there was some subsequent charges laid against him? A. Yes. Q. And that those charges were eventually dismissed pursuant to section 10? A. That's right. Q. Between the time that Constable Guff was involved in the accident and the time the charges were heard, did you have any conversations with him concerning the impending charges? A. Yeah. I mean I think he was more concerned the rider of the bike than the charges themselves because I think, as everyone did, that the accident was always going to be construed as just an accident and then nothing more. Although obviously he was worried about it, but when the DPP appealed the section 10, that really knocked him around. That's - he definitely went downhill when they appealed the section 10."

[140]

In his oral evidence, Senior Constable Bieder made it clear that by the last 12 months, he meant the 12 months prior to the deceased's first suicide attempt, putting back his recollection of the personality change to which he referred to early 2003. He amplified the evidence in his statement in this fashion in his evidence in chief: "Q. Just finally, reference is made in paragraph 34, you say Dave was not being himself for the last 12 months. As best you can recall in any conversations if you need to, how do you arrive at that conclusion? A. Just the fact that when you spoke to him, or you were having a conversation with him, he would say something and basically you'd respond and he'd start talking again as if you hadn't said a word. At that time we were both working on a project together which was something for - federally, for a bomb technician's Australia-wide in relation to producing a training course in relation to mobile phone bombs. Dave and I are the only two electricians who were in the bomb disposal unit who had the knowledge to be able to bring other bomb technicians in Australia up to that level. As a result of what we did then we now run, or I now run a course through TAFE, rather covertly, for bomb technicians in relation to that technology, and he worked a lot with me on that. And trying to put a course together like that together with him during that time was extremely difficult because we were both - he was very good with electronics, and better knowledge of electronics than I did, yet I had to run the course because Dave wasn't a fully qualified bomb technician, he was only a bomb appraisal technician, which is a step down. And trying to sort of put this knowledge on paper and put a course together with him when he was in that frame of mind was very difficult because he wasn't listening to what I was saying and when you're having a conversation with him. And, I mean I didn't really realise what was going on at the time, I just knew that he was becoming harder and harder to work with in that sense. HIS HONOUR: Q. He was preoccupied was he? A. It was like, yeah, he was - I mean I'm not a psychologist or anything to be able to put - to knowing what it is, but it was almost like he had like ADD or something where you would have a conversation with him and it was just him. It was almost like it was just him and you weren't there. Although he'd respond to you, he wasn't listening to what you were saying and he wasn't taking it in, and that was extremely odd for him because he was - he just wasn't like that."

[244]

214 Commencing at p 233 the Professor gave this evidence: "Q. Professor before you gave evidence this morning you were provided by my learned friend with a copy of the decision of this court in the matter called Smith v Commissioner of Police. As I understand it the reason you were provided with a copy of that decision was to adduce your opinion on the question of volition at the time of Mr Guff's suicide. Are you able to tell his Honour what the relationship between his psychiatric illness and his volition was at the time he successfully hanged himself? A. It's very hard to sort of define what you mean by volition. We know that people when they suffer from melancholic depression or severe depression believe that things are hopeless, there's no solution. They also experience and I think the term is psychic pain associated with their depression and in that sense see that killing themselves as a rational act. If you call that volition then I think that's what you see happening in people with melancholia and certainly would be in this case as well. There's no alternative way out for a person with this form of depression. Yet when they recover from the depression they would say that that was an illogical decision. HIS HONOUR: Q. This of course raises one of the questions that I discussed in Smith v Commissioner of Police that the law says that a wilfully self-inflicted injury is not compensable. Now suicide by definition is taking one's own life. So for it to be compensable the courts recognise that the wilfulness has to be taken out of it. So that led to the concept of volition being overthrown. That is, he was acting under the stimulus of the medical condition rather than of natural willpower? A. Yes, I would agree with that. I mean he was operating under the sort of false perception of the world he had at the time which arose as to the consequences of his major depression. Q. Motivated by the delusion created by the medical condition. I don't mean delusion in the - it's a bad choice of words because it's got medical consequences. His power to reason normally and his power to act as one normally would was overturned by the or certainly affected by his psychiatric condition? A. Yes, yes. I think in common and sort of psychiatric terminology would probably call that a dysfunctional cognition, which we know occurs in depression. Sometimes we work at trying to change those cognitions, but often we can't, particularly when it's melancholic, where the person has a confirmed belief that everything is hopeless. Q. When in reality it's not? A. Yes."

[247]

217 It has been submitted on behalf of the defendant that making such a finding I am applying a value judgment. That is probably correct. However, it is fundamental to human existence to prefer life to death. It is a fundamental tenet of our society and, with great respect, it is a fundamental principle of existence. Looked at in a rational fashion there were other ways out for the deceased. He could have persisted with treatment, sought appropriate counselling and recovered from his psychiatric condition. There was always a prospect of reconciliation with his wife Denise. The thesis of the defendant was that the deceased had lost his wife and the deceased had lost his career. Clearly by the time of his death he would never be accepted back into the police force. I accept that he had lost his career. However, although he was estranged from his wife, I do not accept that permanent estrangement from his wife was inevitable. He clearly loved his wife as the suicide note establishes, as the attempt to send her twelve red roses shows, and from the letter that Mrs Guff wrote to the Coroner and from the evidence she gave to me. It is clear that she loved her husband although there were difficulties between them in 2004 mediated by the deceased's psychiatric illness. Furthermore looked at rationally, even though the deceased had lost his career in the police force he still had his qualifications as an electrician and could on recovery from his psychiatric illness return profitably to the workforce. Furthermore, the deceased had four children of his body whom he clearly loved and for contact with whom he was actively fighting in 2004. Children bring meaning to life as the evidence of Dr Phillips establishes. Looked at rationally there were reasons for the deceased's life rather than death but he chose death because he could not see the alternative choice. As Professor Boyce said in cross-examination by Mr Barnes, the decision of the deceased to take his own life was most likely because he was bereft of reason. Essentially the same point was made but in an alternative way by Dr Phillips. At page 16 of his report Dr Phillips said this: "DG's decision to kill himself by hanging warrants comment. Suicide acts can broadly be divided into two groups, these being rational suicide and irrational suicide. Rational suicide is a relatively rare event and exists where a person, usually with a painful terminal illness, considers the issue of life and death in a dispassionate, objective and relatively untroubled manner, and who comes to the conclusion that death (and thus avoidance of further intolerable pain and suffering) is preferable to continuing with life. Irrational suicide exists where a person suffers a potential reversible mental health disorder, or perturbation of mind, and is not in situation where he can think in a dispassionate, objective and relatively untroubled manner, but comes to the conclusion that he should end his life. The person who moves towards rational suicide can be said to have essentially normal cognition and volition. The person who moves towards an irrational suicide is deprived of both normal cognition and normal volition."

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