R v Clough [2010] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION: R v Clough [2010] QCA 120

PARTIES: R v CLOUGH, Colin Barry (appellant)

FILE NOS: CA No 224 of 2009 / SC No 10 of 2008

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 25 May 2010

DELIVERED AT: Brisbane

HEARING DATE: 31 March 2010

JUDGES: Muir and Fraser JJA and Applegarth J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – appellant found guilty of murdering his wife – appellant used methylamphetamine in the days leading up to the murder – primary judge found intentional intoxication under s 28(2) Criminal Code included the secondary effect of methylamphetamine consumption – whether primary judge erred in so finding / STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – appellant deprived of capacity to know he ought not do the act – appellant had psychotic disorder – medical evidence that combination of psychotic disorder and drugs taken in the days leading up to the murder resulted in appellant’s lack of capacity – whether the words “other agent” in s 28(2) Criminal Code include an underlying mental condition / Criminal Code 1899 (Qld), s 26, s 27, s 28, s 304A / Dearnley v The King [1947] St R Qd 51, cited / R v Fenton (1975) 61 Cr App R 261, cited / R v Gittens [1984] QB 698, cited / R v Whitworth [1989] 1 Qd R 437, cited / Re Bolton, Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12, cited / Re Bromage (1991) 1 Qd R 1, cited / Re Claybourn (Unreported, Queensland Mental Health Tribunal, Dowsett J, 27 March 1998), cited / Re Hatch (Unreported, Queensland Mental Health Tribunal, Chesterman J, 5 September 2001), cited / Re Mach [2008] QMHC 13, cited / Re Plant (Unreported, Queensland Mental Health Tribunal, Dowsett J, 27 March 1998), cited

COUNSEL: T Carmody SC, with R East, for the appellant / M J Copley SC for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: Introduction

The appellant, after a trial before a judge sitting without a jury, was found guilty of murdering his wife on 16 September 2005. He appeals on two grounds:

Ground 1 – the primary judge misdirected on intoxication;

Ground 2 – the primary judge erred in the application of s 27, s 28(2) and s 304A of the Criminal Code 1899 (Qld).

Relevant evidence

Before stating the arguments advanced for and against the grounds of appeal, it is desirable to say something of the factual background against which the primary judge made her findings. The appellant, who was 38 years of age at the time of the trial, had a long history of drug abuse. He had been using cannabis since he was 15 and methylamphetamine since he was 32. He had a psychotic disorder for which he was being treated.
He had been admitted to hospital for treatment of his disorder on three occasions. Each admission "was in the context of substance abuse" and "generally his symptoms improved with abstinence and treatment".
On 16 September 2005, the appellant and his wife were staying in the appellant's mother's house. Counsel for the respondent's written submissions provide the following explanation of what transpired from about 9 am that day:

"The appellant sat down with his mother. He told her he loved her. He said he was scared; that Leanne (his wife) and her gang were going to have him and his mother murdered and tortured to death and that he could not stand to see that occur. His mother told him he was having a psychotic episode. He disagreed and said he knew what was real and what was not real. The appellant got up and went into the bedroom where his wife was. His mother went to the telephone to contact the Mental Health Service. She heard the deceased screaming. She tried to open the bedroom door but it was locked. She fetched a key and opened the door, the deceased was standing up and then she collapsed. [The appellant's mother] asked the appellant why he did it and he said, 'I had to do it mum. I had to do it'. The appellant got into a car and left … [he] drove to the Mental Health Service office where his case worker was employed and told a staff member that he had stabbed his wife … the corpse bore 11 wounds consistent with having been caused by the knife the police found in the appellant's vehicle."

The central findings of the primary judge

The primary judge found that the appellant had used illicit drugs in the days leading up to her death as follows:¹

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."

The primary judge's findings on the mental state and capacity of the appellant and the bearing on that state and capacity of his use of methylamphetamine were as follows:

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

(a)the defendant was suffering from a psychotic disorder which was a 'mental disease' within the meaning of s 26 of the Criminal Code;

(b)he was psychotic;

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

(d)he was deprived of the capacity to know he ought not do the act;

(e)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;

(f)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."

The relevant expert medical evidence

The primary judge summarised the opinions of each of the four psychiatrists who gave evidence as to the bearing of the appellant's taking of methylamphetamine on his mental state and capacity, as follows:

"[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"."

Drawing on the expert evidence, the primary judge found:

"[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."

The reference in paragraph [69] of the reasons to drugs taken "one, two days before" the killing, is a reference to methylamphetamine. Likewise, the reference in paragraph [72] of the reasons to "intoxication" is a reference to intoxication caused by the taking of methylamphetamine.

The primary judge's findings on intoxication and the application of s 27 of the Criminal Code (Qld)

The primary judge found that "intoxication" in s 28(2) of the Code includes the secondary effect of amphetamine consumption from which the appellant was suffering at the time of the killing. She was satisfied that the appellant had intentionally caused himself to be intoxicated with methylamphetamine and could therefore not rely on s 27 of the Code to absolve himself of criminal responsibility for the killing. She found also that as intentional intoxication is not one of the categories of abnormality of mind referred to in s 304A, that section did not operate to diminish the appellant's responsibility for the killing.

Ground 1

The primary judge was said to have erred in concluding that "… the test of what amounted to intoxication was a question of law", whereas, intoxication "in any given case must be a mixed question of fact and law …".
The primary judge reached no such conclusion. She found, unexceptionally, that the meaning of the word "intoxication" in the Code was a question of law. This point has no substance.
Counsel for the appellant argued that the primary judge should have found that s 28 of the Code applied because the appellant was not intoxicated at relevant times. That was because "intoxication" is a "transient or temporary state or condition"² and any intoxicating effect of the drugs taken by the appellant had worn off by the time of the killing.
Beyond submitting that "intoxication was a state", and at one stage in argument, by inference, equating that state with the "high" induced by the use of the relevant substance, counsel for the appellant did not attempt a definition of intoxication.
I respectfully agree with the primary judge's conclusions that the ordinary meaning of "intoxication" is wide enough to encompass more than comparatively short-term elation or stimulation and that "intoxication" in s 28(2) of the Code includes the secondary effect of amphetamine consumption from which the appellant was suffering at relevant times. The primary judge referred to the Macquarie Dictionary definition of "intoxication", which included³ –

"1. inebriation, drunkenness.

2. Pathol. Poisoning

3. the act of intoxicating.

4. overpowering action or effect upon the mind"

(Emphasis added.)

and the Shorter Oxford Dictionary definition, which included –

"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.)

There is no reason to suppose that in excluding intentional intoxication or stupefaction from the relief from criminal responsibility afforded by s 27, the legislature had in mind the exclusion only of an intentional intoxication which had a fleeting effect. The purpose of the exclusion in s 28(2) is to deprive a person who has intentionally used a substance to become intoxicated or stupefied of the ability to deny criminal responsibility for his or her acts or omissions on the grounds of lack of mental capacity. Once this is understood, there can be no sensible reason for not applying s 28(2) merely because the state of intoxication or stupefaction intentionally caused by the substance used by that person lasts for days rather than hours. The words of s 28(2) contain no express temporal limitation and none is implicit. R v Whitworth,⁴ on which counsel for the appellant placed reliance, is not authority to the contrary.
In Whitworth,⁵ Thomas J listed "Intoxication (temporary effects thereof as distinct from enduring damage occasioned thereby) (R v Gittens; R v Fenton; R S O'Regan*, Intoxication and Criminal Responsibility under the* Queensland Code, 10 UQLJ. 70, 81)" as one of the "qualities or states of mind" not recognised "as valid contributing causes to an abnormal state of mind relied on by an accused". In that passage the expression "temporary effects" is used in contrast with an effect such as lasting organic damage.
Both R v Gittens⁶ and R v Fenton⁷ were concerned with s 2 of the Homicide Act 1957 (UK) which relieved a person from liability for murder if the person "was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility …". In Gittens, the Court concluded, approving the approach taken in Fenton, that juries "should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section".
In Fenton, the Court left open the possibility that there may be cases in which the "accused proves such a craving for drinks or drugs as to produce in itself an abnormality of mind". On the facts of this case, the occasion to consider the operation of s 27 in circumstances in which the deliberate taking of drugs or alcohol causes an enduring mental disease which deprives the defendant of a relevant capacity does not arise.

Ground 2 – the appellant's contentions

The arguments advanced by counsel for the appellant were as follows. In s 27 and s 28 of the Code, a "mental disease" is distinguished from a state of mind disordered by intoxication from drugs or by any other means. A "mental disease" within s 27 of the Code is the same as an unsound mind, as defined in Schedule 2 of the Mental Health Act 2000 (Qld). Neither includes a state of mind resulting from intentional intoxication.¹⁰
The words "other agent" in s 28(2) do not include an underlying mental incapacity or disease and there is no scope for the operation of s 28(2) where such a condition exists. Section 28 "deals with a person who's just got a disordered mind because of intoxication, nothing else".
The phrase "in combination with some other agent" in s 28(2), has to be read purposively and in its historical context. In the second reading speech to the Bill introducing an amendment to s 28, the Attorney-General made it clear that the amendment was intended "… to overcome an anomaly identified by the advisory working group … created by the decision of the Court of Appeal in The Queen v Bromage so that if in future a person becomes intentionally intoxicated and commits a criminal offence then he or she will not be excused from criminal responsibility if he or she has also consumed some other toxic agent and the substances act in combination on the person's mind".¹¹
Counsel for the appellant criticised the primary judge's statement, "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". He submitted that although it was correct that intentional intoxication had to be ignored, the primary judge failed to consider whether the appellant was "in such a state of abnormality of mind … as substantially impair … [his] capacity to know that [he] ought not do the act".

Sections 27, 28 and 304A of the Criminal Code

These sections relevantly provide:

"27****Insanity

(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.

28****Intoxication

(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.

[The section was amended in 1997 by the insertion of the emphasised words]

…

304A****Diminished 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."

Consideration of Ground 2

The argument advanced orally in relation to s 27, was simply that if the appellant had a psychosis (or diseased mind) at the time of the killing, as the primary judge found, s 27 applied to relieve him of criminal responsibility. In the course of argument, senior counsel for the appellant accepted that, in order for s 27(1) to apply, there also needed to be a relevant lack of capacity. It was asserted, however, that it did not matter that the lack of capacity was caused by a combination of an underlying mental condition and intoxication.
It can readily be seen from the plain words of s 27(1) that the sub-section applies only if it is the "state of mental disease or natural mental infirmity" which deprives the person of one of the specified capacities. Where a person is deprived of a relevant capacity by the effects of intoxication on a pre-existing condition, the pre-requisites for release from criminal responsibility are not engaged. If s 27(1) did apply in those circumstances, it would be inconsistent in its application with s 28 (unless construed as contended for by counsel for the appellant). Such a construction could also produce some unpalatable and/or unexpected results. For example, a person could obtain the benefit of the section where knowingly deleterious drug or alcohol consumption acted on a relatively minor mental disease to cause the loss of a relevant capacity. This construction of s 27(1) is consistent with that taken in England in relation to the broadly similar provisions of the Homicide Act 1957 (U.K.) and with authority in this State.¹²
The finding that the appellant's intoxication (if it existed contrary to the appellant's argument) was intentional was not challenged. Nor was the finding in sub-paragraphs (d) and (e) of paragraph [73] of the Reasons. Consequently, s 28(2) would clearly operate to prevent the appellant obtaining the benefit of s 28(1) unless the words "some other agent" in s 28(2) were incapable of including an underlying mental disorder such as the condition from which the appellant suffered.
The word "agent" has a range of meanings in everyday language. Dictionary definitions of "agent" include:

"3.a phenomenon, substance, or organism that exerts some force or effect a chemical agent

4.the means by which something occurs or is achieved; instrument wind is an agent of plant pollination"¹³

"2.The efficient cause 1656; hence, any natural force, or substance, which produces phenomena, as electricity, activism, chloroform, etc. …

4.of things: the material cause or instrument 1759".¹⁴

The words "other agent" in "mind is disordered by the intoxication alone or in combination with some other agent" relate to the words "the intoxication". "Other agent" is therefore a reference to, or at least includes, a state or condition which operates to produce an effect, rather than only another toxic substance as the appellant's counsel argues. This construction accords with the general scheme of s 28. Section 28(1) makes the section applicable to a person in a state of "intoxication or stupefaction caused … by drugs or intoxicating liquor or by any other means". By operation of sub-section (1), it does not matter for the purposes of s 28 whether the state of intoxication or stupefaction is caused by alcohol, drugs, a combination of them or by "any other means". There is thus little justification for construing "other agent" as meaning "other toxic substance". It is already plain from sub-section (1) that the intoxication to which sub-section (2) refers may be caused by a combination of drugs, intoxicating liquor or other substances.
Additionally, if "other agent" was intended to mean "other toxic substance", it would have been simple enough to select words which gave effect to that intent. Instead, the word "agent", which is strongly indicative of a quite different and broader meaning, was selected. In my view, the words "whether his or her mind is disordered by the intoxication alone or in combination with some other agent" were inserted out of an abundance of caution in order to remove any possible doubt about the meaning of the provision as it stood prior to amendment.
This meaning of "other agent" accords with prior authority.¹⁵ The language of the second reading speech referred to by counsel for the appellant suggests that the Attorney-General regarded "other agent" as meaning or including some other toxic substance. The Attorney-General said:

"Clause 11 will amend section 28 which provides the defence of intoxication to overcome an anomaly identified by the advisory working group as created by the decision of the Court of Appeal in The Queen v. Bromage so that if in future a person becomes intentionally intoxicated and commits a criminal offence then he or she will not be excused from criminal responsibility if he or she has also consumed some other toxic agent and the substances act in combination on the person's mind. Intoxication is not an appropriate defence to raise in such circumstances where the consequences of the defence of insanity are brought into play and other defences may be open on the facts. The Bill will also address the like-natured amendment of the Mental Health Act as recommended by the advisory working group".

Dowsett J in Re Claybourn concluded that the point being made by the Attorney-General was probably that although s 28, prior to amendment, was "… sufficiently wide to include within its operation the combined effects of two or more intoxicants, but it may not have dealt with the combined effects of unintentional intoxication from the use of one such substance and intentional intoxication from the use of another".
But, even if, which I doubt, there is an element of ambiguity or obscurity in the meaning of "agent", which would permit reference to the Attorney-General's words¹⁶ in ascertaining the meaning of "other agent", it would be inappropriate to treat those words as overwhelming the considerations just discussed. "The words of a Minister must not be substituted for the text of the law … The function of the Court is to give effect to the will of Parliament as expressed in the law".¹⁷ It is also far from obvious that in the above passage the Attorney-General was purporting to define the precise extent of the proposed amendment to s 28(2).
There is no scope for the operation of s 304A either. The findings in paragraph [73] of the primary judge's reasons do not plainly exclude the application of all of the three types of lack of capacity which the section identifies. However, the appellant bore the onus of proving that s 304A(1) applied and none of the psychiatrists who gave evidence expressed opinions which could have grounded a finding that the appellant was deprived of a relevant capacity merely by his "state of mental disease or natural mental infirmity". The only capacity in issue in the proceeding was the capacity of the appellant "to know that [he] ought not do the act" and there was the express unchallenged finding that "there would not have been substantial impairment of [the capacity to know he ought not do the act] but for the continuing effects on his mental state of the drug".
For the above reasons I would dismiss the appeal.
FRASER JA: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with those reasons and with the orders proposed by his Honour.
APPLEGARTH J: I also have had the advantage of reading the reasons of Muir JA, with which I agree. I agree with the order proposed by his Honour.
I only wish to add that the appellant's reliance on R v Whitworth¹⁸ and Re Plant¹⁹ is misplaced. Thomas J in drew a distinction between the "temporary effects" of intoxication and the "enduring damage occasioned thereby". Dowsett J in was concerned with a case of the latter kind. It was described as a case of a neuro-chemical change "created by sustained abuse of amphetamines but enduring past the expiry of the intoxicating effect thereof."

● the appellant would not have been deprived of the capacity to know he ought not do the act but for the continuing effects on his mental state of the methylamphetamine which he had voluntarily consumed on Wednesday 14 September;

● 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.²³

Factually, this case is entirely different to Re Plant and Re Claybourn.²⁴ As Dowsett J stated in Re Plant, in both those cases the medical opinion was that "even excluding the effects of alcohol and other drugs, the patient was deprived of a relevant capacity by his drug-induced psychosis."²⁵

Thomas J observed in Whitworth that there are reasons of public policy why the law will not permit certain states of mind to be relied upon by an accused so as to affect their criminal responsibility.²⁶ What his Honour described as the "temporary effects" of intentional intoxication, as distinct from the enduring damage occasioned by intoxication, is one such condition.
The appellant was found to be experiencing such temporary effects at the time he murdered his wife. The primary judge applied the ordinary meaning of "intoxication" to facts that are not challenged in this appeal. The meaning of "intoxication" accords with earlier authority and with the policy that is implicit in s 28.

Footnotes

R v Clough [2009] QSC 231 at [24]. ↩
R v Whitworth [1989] 1 Qd R 437 at 445. ↩
R v Clough [2009] QSC 231 at [77]. ↩
[1989] 1 Qd R 437 at 445. ↩
At 445. ↩
[1984] QB 698. ↩
(1975) 61 Cr App R 261. ↩
In this regard see Dearnley v The King [1947] St R Qd 51 at 61. ↩
[1991] 1 Qd R 1 at 8. ↩
Re Mach [2008] QMHC 13 at [12]. ↩
Queensland*, Second* Reading Speech, Criminal Law Amendment Bill, Legislative Assembly, 4 Dec 1996, 4871 (Denver Beanland, Attorney-General and Minister for Justice). ↩
See Re Bromage (supra) at 5 and the cases there cited. ↩
Collins English Dictionary: Complete and Unabridged, 6th ed., 2003.

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