Supreme Court of the ACT|2014-09-18|Before: Refshauge J

R v McGuckin [2014] ACTSC 242 (18 September 2014)

Kristy Louise McGuckin is, by reason of mental impairment, not guilty of the offence of aggravated robbery alleged to have been committed on 27 July 2012.
Kristy Louise McGuckin is, by reason of mental impairment, not guilty of the offence of assault occasioning actual bodily harm alleged to have been committed on 20 December 2012.
Kristy Louise McGuckin is, by reason of mental impairment, not guilty of the offence of recklessly causing damage to property, alleged to have been committed on 17 May 2013.
Kristy Louise McGuckin is, by reason of mental impairment, not guilty of the offence of assault occasioning actual bodily harm alleged to have been committed on 26 May 2013.
The parties be heard as to the offences transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT).
The parties be heard as to the disposition of these proceedings.

CRIMINAL LAW - PARTICULAR OFFENCES - Aggravated robbery - Assault occasioning actual bodily harm - Recklessly causing damage to property - Not guilty by reason of mental impairment

CRIMINAL LAW - GENERAL MATTERS - General Liability and Capacity - Pleas of not guilty by reason of mental impairment - Difficulties in diagnosis - Differing diagnoses

Crimes Act 1900 (ACT), ss 24, 334, Div 13.3

Daniel M'Naghten's Case (1843) 10 CI & Fin 200; 8 ER 718

Fleming v The Queen (1998) 197 CLR 250

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

R v Barker [2014] ACTSC 153

R v Massey [2000] ACTSC 107

R v Metharam [1961] 3 All ER 200

R v Mulcahy [2010] ACTSC 98

R v Williams (1877) 14 Cox CC 59

Williams v R (1990) 50 A Crim R 213

R v Whitely (1991) 93 Cr App R 25

Smith v Desmond [1965] AC 960

Legal Aid ACT (Defendant)

1. Kristy Louise McGuckin, the accused, has been charged with four offences alleged to have been committed between 27 July 2012 and 26 May 2013.

2. She appeared first in the Magistrates Court on 9 November 2012 and variously since then as proceedings were adjourned and further charges were preferred. She was remanded in custody at various times and is presently in custody.

3. On 28 November 2013, she was committed for trial to this court on the four matters to which I have referred to above at [1].

4. On 30 May 2014, she made an election under s 68B of the Supreme Court Act 1933 (ACT) for trial by judge alone.

5. Under s 68C of the Supreme Court Act 1933 (ACT), a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as the verdict of a jury.

6. The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. Though on appeal from a trial conducted under the procedure regulated by s 33 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act), the High Court in Fleming v The Queen (1998) 197 CLR 250 at 263; [28] stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached. In R v Massey [2000] ACTSC 107, Einfeld J held that the obligations stated by the High Court in that decision set out the obligations of a judge conducting a trial by judge alone under s 68C of the Supreme Court Act.

7. That section also requires me, as the trial judge, when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.

8. There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98. I set them out as follows.

9. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw appropriate inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and Ms McGuckin are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

10. The prosecution bears the onus of proving the guilt of Ms McGuckin at all times. Ms McGuckin does not have to prove that she did not commit the offences charged.

11. If Ms McGuckin does adduce any evidence which is consistent with her innocence, she does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.

12. The standard of proof of the prosecution case is proof beyond reasonable doubt and Ms McGuckin cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of her guilt.

13. Ms McGuckin is presumed by law to be innocent of each of the offences with which she has been charged unless and until the evidence I accept satisfies me that each and every element of the relevant charges has been proved beyond reasonable doubt. Ms McGuckin then loses the presumption of innocence and I must find her guilty.

14. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then she remains presumed innocent and I must find a verdict of not guilty.

15. If I am satisfied that there may be an explanation consistent with the innocence of Ms McGuckin of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Ms McGuckin not guilty.

16. I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.

17. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experiences and wisdom in assessing the evidence.

18. The Crown has presented an indictment containing the four counts on which Ms McGuckin was committed for trial. The counts on the indictment are as follows:

FIRST ... on 27th July 2012 at Canberra in the Australian Capital Territory KRISTY

COUNT LOUISE MCGUCKIN committed robbery and at the time had an offensive weapon with her.

SECOND ... on 20th December 2012 at Canberra aforesaid KRISTY LOUISE

COUNT MCGUCKIN did assault [an ACT Corrective Services Officer] and thereby occasion to him actual bodily harm.

THIRD ... on 17th May 2013 at Canberra aforesaid KRISTY LOUISE MCGUCKIN

COUNT did recklessly cause damage to property, namely an internal wall belonging to the Canberra Southern Cross Club Ltd trading as Southern Cross Club Tuggeranong.

FOURTH ... on 26th May 2013 at Canberra aforesaid KRISTY LOUISE MCGUCKIN

COUNT did assault [the complainant] and thereby occasion to him actual bodily harm.

19. Ms McGuckin pleaded not guilty to each count. I was asked to take the pleas as meaning "not guilty by reason of mental impairment". See s 28 of the Criminal Code 2002 (ACT). I will do so.

20. Each offence consists of elements which the Crown must prove beyond reasonable doubt.

21. The first count on the indictment charges her with robbery with an offensive weapon, an offence against s 310(b) of the Criminal Code. The elements of the offence are:

(a) Ms McGuckin unlawfully took and carried away property of some value;

(b) from the person of another, or in the presence of that other person or from the care or protection of another person;

(f) at the time of the offence had an offensive weapon with her.

22. See R v Donnally [1779] EngR 19; (1779) 1 Leach 193 at 195; [1779] EngR 19; 168 ER 199 at 200; R v Butcher [1986] VicRp 4; [1986] VR 43 at 46-8.

23. As to the part of element (b) in [21] above, that the property was taken in the presence of or from the care or protection of another, Lord Pearce said in the House of Lords in Smith v Desmond [1965] AC 960 at 997-8

The essence of the offence is that violence is done or threatened to the person of the custodian who stands between the robber and the property in order to prevent or overcome his resistance and oblige him to part with the property and submit to the thief stealing it. Thus the offence against the person and the theft are combined ... the offence can only exist where the victim has sufficient care or personal possession of the goods to allow the court to say that constructively the goods were taken 'in his presence' ... It is a question of degree for the jury to decide whether the victim of the violence was sufficiently the custodian of the property stolen, whether he had sufficient possession and care of it, to constitute the stealing as being in his presence.

24. Actual violence is not required; it is sufficient if the person is in fear that violence will be used on him or her: R v Butcher at 47.

25. Intention means "a decision to bring about the situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result" as explained by Brennan J in the He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 569.

26. An offensive weapon is an instrument or object that is designed or carried for the purpose of attack. It includes but is not limited to guns, knives and clubs but can include other objects which may have other, non-offensive uses but which are used or intended to be used to inflict injury or do violence. See R v Hutchinson [1784] EngR 185; (1784) 1 Leach 339 at 343; [1784] EngR 185; 168 ER 273 at 274. It is a question for the judge of the facts as to whether an object is thus an offensive weapon depending on the way it is used or the intention for which it is carried. See R v Williams (1877) 14 Cox CC 59 at 60-1.

27. The second and fourth counts charge Ms McGuckin with the same offence in each count, though on different days and with different persons said to be the victim of each offence. Each offence is one against s 24 of the Crimes Act 1900 (ACT). The elements of each offence is:

(a) that Ms McGuckin struck, touched or applied force to the relevant alleged victim;

(b) that this conduct was without the consent of the alleged victim;

(d) that the conduct was without lawful excuse; and

28. See, for the elements of assault, Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444.

29. Recklessness describes the state of mind of a person, who, while performing an act, is aware of the risk that a particular consequence may possibly result from that act, but nevertheless does the act. See Williams v R (1990) 50 A Crim R 213 at 222.

30. Actual bodily harm is to be given its ordinary and natural meaning, that is, hurt or injury to the body; it need not be of a permanent character, but must not be transient or trivial. See R v Metharam [1961] 3 All ER 200.

31. The third count charges Ms McGuckin with recklessly causing damage to property, an offence against s 403 of the Criminal Code. The elements of the offence are that:

(c) she intended to cause or was reckless about causing the damage to that property and any other property belonging to someone else.

32. Damage is a term to be interpreted widely: R v Whiteley (1991) 93 Cr App R 25 at 29.

33. All of the elements set out above for each offence must be proved beyond reasonable doubt.

34. A brief of evidence containing witness statements and other material to be exhibited was prepared for each count. The briefs were tendered by consent and I was satisfied that Ms McGuckin understood the consequences of giving her consent. See s 190 of the Evidence Act 2011 (ACT).

35. It is not necessary to set out a summary of the evidence of each witness. I can, instead, make the required findings of fact from the material tendered, about which there was no challenge. Accordingly, I make the following findings of fact in respect of each count.

36. Ms McGuckin went to a supermarket in Civic at about 4:00 pm on 27 July 2012, entering through one of the checkouts. She went to the alcohol section and took six bottles from the shelves. She then walked down all the aisles taking grocery items off the shelves and placing them in a supermarket trolley which she had pushed into the store.

37. She returned to the alcohol section and turned her back to the CCTV camera and put a number of items of food into a red or orange bag she was carrying. She then walked behind a customer passing through the check out and attempted to leave the store.

38. A security guard employed by the supermarket had noticed Ms McGuckin secreting items in her bag. He stopped her at the service desk and asked to look in her bag. Ms McGuckin refused to let him do so. She forcefully pushed the trolley into the guard, who pushed it back, but it struck his foot, causing him some pain. He called for security officers to be summonsed.

39. Ms McGuckin took out a pair of scissors from her hand bag and threatened to stab the guard. She tried to run to an exit but he blocked her path. By this time another security officer had arrived. Ms McGuckin threatened to stab both of them if they did not move out of her way.

40. She then consumed some pills that she had taken from the trolley with some of the alcohol.

41. Ms McGuckin pushed the trolley to the nearby escalator and ascended to the second level, following by the security guard and officer. She moved to a group of couches and threw some packages of meat from the trolley down to the lower level.

42. Shortly after, police arrived. They assessed her as being under the influence of some intoxicating substance. The security personnel had formed a small "cordon" around her, keeping members of the public from her.

43. Ms McGuckin became increasingly influenced by the substances she had taken and appeared to find it difficult to focus on the person to whom she was talking and her level of awareness deteriorated. Her movements became slow, she slurred her words and she appeared to be unwell. Police continued to speak to her in an attempt to resolve the situation.

44. Finally, she went to sit down, placing the scissors in the shopping trolley, and two police officers managed to force her to the ground and to restrain her. She was arrested, placed in handcuffs and taken back to the police station.

45. The goods in the shopping trolley and bag were returned to the supermarket. The value of the items taken by Ms McGuckin was approximately $640.

46. Ms McGuckin was charged with aggravated robbery with an offensive weapon, possessing a knife without reasonable excuse and unlawfully possessing stolen property. I am satisfied that these findings prove each of the elements of this offence, save for the mental element, that of intention.

Second count - assault occasioning actual bodily harm

47. On 20 December 2012, Ms McGuckin was being taken from the City Watch House to the Magistrates Court cells. Once the transport vehicle containing Ms McGuckin arrived at the court cells, Ms McGuckin was requested by a corrections officer to get out of the vehicle. She refused.

48. After some negotiation, she still refused and the vehicle in which she was travelling was moved out of the Court's sally-port. She remained under observation, however, and was seen by the staff to be attempting self-harm by choking herself with a seat belt.

49. The officer of Corrective Services opened the vehicle door, whereupon Ms McGuckin removed the seat belt from around her neck. The vehicle was then moved back to the sally-port and she was again asked to leave the vehicle, but she kicked out at the officer, her foot connecting with his shins and other parts of his body, causing him pain. She kicked him three or four times. Another officer came to his assistance and together they managed to restrain her and removed her from the vehicle.

50. She was taken to a cell where the handcuffs that had been used to restrain her were safely removed without further incident.

51. The officer whom Ms McGuckin had kicked was seen to be bleeding from the top of his head and had cuts and abrasions on both his shins. His shirt was, as a result, stained with blood. I saw photographs of the injuries he sustained.

52. Ms McGuckin was charged with assault occasioning actual bodily harm to the ACT Corrective Services Officer. I am satisfied that these finding prove each of the elements of this offence, save for the mental element, that of intention or recklessness.

53. On 17 May 2013, Ms McGuckin went to the Southern Cross Club at Tuggeranong. She told the receptionist that she had put twenty dollars in a machine but it did not register. She said that she had been told to come back in a couple of weeks to collect her twenty dollars when the staff had been able to balance the machines.

54. The Duty Manager came to investigate. Ms McGuckin identified herself as a member of the Club and the Duty Manager went and checked the records. She returned to the foyer of the Club, having been unable to locate any record of a report of the incident. When told this, Ms McGuckin became abusive so the Duty Manager checked again.

55. Again, the Duty Manager told her there was no record of the claim. Ms McGuckin became more abusive and threatening. The Duty Manager spoke to the Venue Manager who also tried to calm Ms McGuckin, but unsuccessfully.

56. Ms McGuckin was asked to leave but she did not. She continued to pace round the foyer and threatened to head butt a number of staff by pulling her head back and then pushing it quickly forward, but stopping before making contact.

57. She continued to prowl around the foyer and made further attempts to enter the Club but was prevented from doing so. At one stage, she clenched her fist and brought it forward but then pulled her arm rapidly back, causing her elbow to hit the wall and make a small hole in it.

58. She made contact with another staff member by bringing her shoulder into his right chest.

59. Police arrived shortly after and attempted to persuade her to leave the Club. She swore at them and tried to enter the Club again but was escorted out of the Club by police, though she struggled as they did so. She was then arrested for causing damage to the Club wall.

60. She was placed in a caged police vehicle. As she was being taken to the watch house, she removed her shoe, took out a watch and smashed the glass covering the face of it and rubbed a piece of the broken glass against her wrist, apparently trying to harm herself. Police attempted to prevent her doing so, but she refused to let them do so and police deployed oleoresin capsicum spray to force her to be compliant. That had the desired effect and police removed the glass from her.

61. As she was being charged, Ms McGuckin kicked one of the police officers at the watch house, causing a sharp pain.

62. A photograph of the hole in the wall was included as part of the brief, showing a depression where the plaster wall had been broken, making a hole of an oval shape about 1.5 cm by 1 cm.

63. Ms McGuckin was charged with recklessly causing damage. I am satisfied that these facts prove each of the elements of this offence, save for the mental element, that of intention or recklessness.

Fourth count - assault occasioning actual bodily harm

64. On 26 May 2013, Ms McGuckin went to the Erindale Shopping Centre and entered a supermarket. She left a short time later but staff suspected that she had stolen some goods and the Night Shift Manager left the store to find and confront her.

65. An off-duty police officer, Constable Troy Wade, also suspected that Ms McGuckin had stolen some goods and, seeing her leave the store, he followed her. He stopped her, identified himself and asked her to show him what she was holding. She became abusive.

66. The Night Shift Manager had, by this time, arrived and he, at Constable Wade's request, assisted in restraining Ms McGuckin. They were joined by other store staff including the Night Fill Captain.

67. The Night Fill Captain took hold of Ms McGuckin's arm while the Night Shift Manager took hold of her legs as she was kicking out.

68. A police officer arrived on a motorcycle shortly after and proceeded to handcuff Ms McGuckin. As he was doing so, Ms McGuckin bit the Night Fill Captain on his calf. He felt pain and let go of Ms McGuckin's arm. She had to be hit by the police officers several times before she stopped striking them.

69. Ms McGuckin continued to struggle and was loudly abusive but was placed in a caged police vehicle.

70. The Night Fill Captain was taken to Canberra Hospital where he was examined by Dr Catherine Sansum. She saw a 5 x 5 cm circular swollen tender area on the posterior aspect of his left calf and on the lateral aspect of the area a 3 x 3 mm abrasion, that is an injury to the outer layers of the skin. The wound was cleaned and dressed. Dr Sansum took eleven photographs but, unfortunately, none were included in the brief.

71. Dr Sansum pointed out that as the bite had broken the skin, the Night Fill Captain was exposed to Ms McGuckin's saliva which had the capacity to transmit viral infective illnesses.

72. Mr McGuckin was charged with assault of the Night Fill Captain occasioning him actual bodily harm. I am satisfied that these findings prove each of the elements of this offence, save for the mental element, that of intention or recklessness.

73. I had a number of psychiatric reports about Ms McGuckin's mental health from as far back as 2004.

74. In 2004, Dr Graham George, Consultant Psychiatrist, diagnosed her with a Borderline Personality Disorder in association with substance abuse. He noted a history of schizophrenia in her family and added:

There is the concept of schizophrenic spectrum disorder and this tends to emphasise that there can be significant abnormal behaviour and functioning in the first-degree relatives of those who suffer schizophrenia. It may well be that Borderline Personality Disorder is a different phenotypic expression of the polygenic disorder of schizophrenia.

75. Dr George examined Ms McGuckin again in 2007 for the Mental Health Tribunal. He said that, since his last examination, Ms McGuckin had come under the care of Professor Henderson at the Tuggeranong Health Centre. He further said that she told him that she had been diagnosed with schizophrenia and borderline personality disorder. The latter diagnosis is consistent with Dr George's earlier diagnosis, but the former is a further or different diagnosis. I was not told by whom that diagnosis was said to have been made.

76. She was then medicated with depot antipsychotic medication, Risperdal Consta, with which she had been treated for some two and a half years and, prior to that, with Quietapine and Seroquel. She had also been subject to a Psychiatric Treatment Order since 2004. At some stage she was prescribed Valproate and anti-depressant medication.

77. Dr George noted a history of schizophrenia in Ms McGuckin's family. He considered that, at the time of examination, she did "suffer a serious mental illness". This included acute symptoms, especially auditory hallucinations and ideas of reference with, at other times, incongruent affect and paranoia. He considered that her illness had deteriorated over the previous several months. He also said

At any time when she would have symptoms, her attention, concentration, judgement and insight would be significantly flawed.

78. Dr George examined her again in 2009. He referred to the diagnosis of paranoid schizophrenia, for which she was receiving appropriate medication. She appeared to be relatively asymptomatic, although still with auditory hallucinations, ideas of reference and "probably, on occasions, paranoid delusional ideas associated with incongruent affect", though he considered that the symptoms appeared to be "more fleeting rather than persistent" according to her reports.

79. Dr George considered that the major risk would occur if Ms McGuckin was non-compliant with her medication, though he did report that she had a degree of insight. He also considered that her behaviour at the time of the offences she was then facing (not the ones now before the Court) "may well have occurred during a period when she had not been compliant with her medication ... [and] her reported behaviour at the time ... would be consistent with an exacerbation of illness". He confirmed that her illness was a "chronic mental illness" which led to her insight and judgement being flawed at any particular time, but especially when her illness was exacerbated. He further opined that, even under medication, her symptoms were not completely in remission.

80. Dr George examined her again in 2011 when she appeared reasonably well but he considered she should continue under a Treatment Order. He confirmed his view that she "has a serious mental health issue which requires ongoing constant daily treatment".

81. Dr George examined her again in 2012. He confirmed that his original diagnosis was of a personality disorder but noted that, "[o]ver time, she has been diagnosed with paranoid schizophrenia" with related psychotic symptoms while not abusing substances. At the time, however, there was no marked formal thought disorder or major disorder of affect and that she showed insight. He recommended, however, that she would be best managed on a continuing Psychiatric Treatment Order and made other recommendations to which I do not need to refer.

82. In the meantime, a report was prepared in 2011 by a nurse working with Professor Henderson. It is interesting that she reported only a diagnosis of Borderline Personality Disorder and significant substance abuse. She reported that Ms McGuckin's episodes of aggression and impulsivity were "strongly associated with the concurrent use of substances in particular Amphetamine use". She reported that Ms McGuckin had been assessed as being of above average intelligence. She had been a model prisoner when in custody and her mental state improved rapidly when her access to street drugs was reduced.

83. She reported that Professor Henderson thought that a Psychiatric Treatment Order was not necessary as Ms McGuckin had the capacity to consent to treatment and that she was co-operative; indeed, she said that he thought the order would be counter-productive. When Ms McGuckin abstained from substance use, she was "able to coexist within a community in a productive and non-threatening way".

84. Professor Henderson repeated these views of Ms McGuckin's adherence to her treatment regime and the problem with a Psychiatric Treatment Order in a report in 2012 but he did say that "[i]t is highly probably that she will engage in further anti-social behaviour."

85. Later that year, Dr Melanie Jones, a psychiatric registrar at the Adult Mental Health Unit prepared a court report. She said the assessment was made with the assistance of Dr Len Lambeth, Clinical Director of Forensic Mental Health ACT. The report was sought consequent upon a referral under s 309 of the Crimes Act 1900 (ACT). Apparently when seeking treatment for a chronic knee pain, Ms McGuckin became aggressive and produced a knife with which she threatened the triage nurse at the Emergency Department of The Canberra Hospital.

86. Dr Jones reported a diagnosis of Dissociative Personality Disorder (ICD-10), that is Antisocial Personality Disorder (DSM IV). She assessed her as currently mentally dysfunctional but advised that she did not require emergency detention. She opined that there was a moderate risk of self harm following this assessment.

87. In early 2013, Ms McGuckin was examined by Dr Anthony Barker, Consultant Psychiatrist as a result of a request for a Forensic Psychiatric Report from the Magistrates Court in relation to, inter alia, these offences.

88. Dr Barker noted that, while the first mental health intervention with Ms McGuckin occurred in about 1995-6, she had fairly minimal contact with mental health professionals until 2004. Since 2006, she had been admitted to hospital on at least fifteen separate occasions.

89. He also referred to the range of psychiatric diagnoses: borderline personality disorder, substance abuse, paranoid schizophrenia, intermittent explosive disorder, dissocial personality disorder, and attention deficit disorder.

Her presentation certainly appears to create a significant degree of diagnostic uncertainty however elements of personality disorder and substance abuse are frequent themes throughout her clinical record. It also appears that she suffers psychotic episodes at times, however, it is less clear whether these are attributable primarily to acute exacerbations of her personality disorder, secondary to substance use, or indicative of an underlying psychotic illness.

91. Dr Barker reported her use of daily heroin and methamphetamine. He noted that she also used marijuana once every few weeks. She does not, he said, use alcohol as it makes her nauseous.

92. Dr Barker's diagnosis was of a Psychotic Disorder Not Otherwise Specified, Borderline Personality Disorder, Substance Dependence (opioids) and with a history of substance abuse/dependence (amphetamines, cannabis). He considered her psychotic episodes could be explained as a result of her borderline personality disorder and illicit substance use. He did accept that it was possible that she had an underlying psychotic illness, such as schizophrenia, but he thought it less likely, particularly as she had periods during which she functioned quite well and that these periods did not necessarily coincide with mental health treatment.

93. A report from Dr Stephen Allnutt, Senior Consultant Forensic Psychiatrist and two letters from him were tendered also. They had been prepared specifically for these proceedings. Dr Allnutt also gave oral evidence and was cross-examined.

94. Dr Allnutt examined Ms McGuckin while she was in custody. The first examination on 26 August 2013 was conducted by an audiovisual connection. This was not entirely satisfactory for his determination of her mental state was difficult in this medium. He then met her at the Alexander Maconochie Centre on 1 October 2013.

95. His report set out an account of the offences and I do not need to address that material. He also made clinical observations and took a mental health history.

96. She told Dr Allnutt that she was "up and down". She reported unusual thoughts and auditory hallucinations. She also reported seeing things that were "not there". She exhibited signs of paranoia, "that people were against her". She could not trust the food and believed that there was a conspiracy to get her "locked up". These paranoid thoughts became more intense when she was stressed.

97. It is to be noted that these symptoms, experienced while she was in custody, were present in a situation where her access to illicit drugs while, realistically, not absent was restricted.

98. She reported her initial contact with a psychiatrist at age thirteen when she had visual hallucinations. She saw psychiatrists and counsellors intermittently after that.

99. Ms McGuckin first started hearing voices at age sixteen, by which time she was smoking cannabis and using amphetamines, though she had already, by that time, been hearing voices. These hallucinations became worse. She gave up taking illicit substances for a while but if anything the hallucinations and her paranoia worsened. This happened again in 2012 when she again ceased using illicit drugs, but her symptoms worsened.

100. She was admitted to hospital for psychiatric reasons in 2004 and subsequently admitted again on multiple occasions. She has been on a Psychiatric Treatment Order for much of the time since 2004, though there was a period when she was not subject to such an order. The actual periods were 30 September 2004 to 28 January 2011 and 15 November 2011 to 14 May 2013.

101. Ms McGuckin also complained of panic attacks, and of intermittent suicidal ideation. She had experienced depression, which had worsened in recent times.

102. She said that when treated at the Tuggeranong Mental Health Service, she tended to minimise her symptoms because she did not want to be put into hospital.

103. As I have noted above (at [74]), there is a family history of schizophrenia.

104. Dr Allnutt expressed the opinion that Ms McGuckin suffers from Paranoid Schizophrenia. He noted that she probably suffered from an underlying personality disorder such as Borderline Personality Disorder and pointed out that this disorder and Schizophrenia can share some symptoms and co-exist and that it is probable that an underlying Borderline Personality Disorder had complicated her diagnosis.

105. Dr Allnutt's diagnosis was not really challenged in cross-examination, though some of his conclusions about what followed were.

106. I have carefully considered the evidence and am satisfied that Ms McGuckin suffers from Paranoid Schizophrenia and that this was the appropriate diagnosis of her condition at the time of the alleged offences.

107. I come to this conclusion for the following reasons:

(1) This is the balance of psychiatric opinion. It is the most recent view of Dr George. Dr Barker admits of the possibility and certainly includes a diagnosis of a psychotic disorder. Despite Professor Henderson's view, she was prescribed two medications appropriate for schizophrenia while under her care, Risperdal Consta and Quietapine.

(2) She gave a history of paranoia and psychotic phenomena over time, though in most detail to Dr Allnutt. There were, however, such references in the report of Dr George in 2004 and in the report of Dr Barker.

(3) While the interaction with illicit drug use was relied on by Professor Henderson to base his differential diagnosis, this did not account for the symptoms reported to Dr Allnutt while she was relatively drug free. Respect needs to be paid to the opinion of a treating clinician, but it seems to me the comment of Dr Allnutt about the co-existence of schizophrenia and Borderline Personality Disorder helps to explain the diagnostic uncertainty.

108. As noted above (at [19]), Ms McGuckin pleaded not guilty to the offences on the ground of mental impairment. That matter is a circumstance where there is no criminal responsibility and is regulated by s 28 of the Criminal Code which relevantly provides:

28 Mental impairment and criminal responsibility

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(c) the person could not control the conduct.

(2) For subsection (1)(b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

(6) The prosecution may rely on this section only if the court gives leave.

(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must -

(a) for an offence dealt with before the Supreme Court - return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or

109. I have addressed the application of this legislation in R v Barker [2014] ACTSC 153 at [71]- [91] and I rely on what I there said.

1. The legislation does amount to a departure, especially in s 28(1)(b) and (c) to a marked departure, from the common law.

2. "Wrong" in the section is not directed to moral or legal concepts but to whether reasonable persons would disapprove of the conduct of the accused as wrong.

3. That does not mean that legal or moral wrongness is irrelevant and may be helpful in establishing whether the conduct is wrong.

4. The accused's understanding of the legal wrongness of the conduct will not necessarily prevent the defence from being made out.

5. The question is whether the disease, or defect or disorder means that the accused could not think rationally about the matter with a moderate degree of sense and composure.

6. A moderate degree of sense and composure means something more than a basic degree of compromise and something less than a perfect degree.

7. The question is to be distinguished from automatism where the conduct is not voluntary, that is, not accompanied by volition.

8. The reference to the accused not being able to control her conduct, being the physical elements of the offence, means that she cannot form and implement a decision to do the act or acts and actually not control the conduct.

111. Ms McGuckin relied on the evidence of Dr Allnutt. In his report, he addressed the issue. He also addressed it in the two subsequent letters he sent to Ms McGuckin's lawyers.

112. It was clear from the course of these that Dr Allnutt was having some difficulty in coming to a clear opinion about whether Ms McGuckin's situation met the conditions set out in the legislation, though his final view was quite strongly that she did. He maintained that position in his oral evidence and under cross-examination.

113. The broad basis of his opinion is set out in his report which it is appropriate to set out in some detail. He said

The alleged offending spanned a period between 14 December 2012 and 27 July 2013 and involved multiple incidents over a period of seven and a half months.

During this period of time she was between the age of about 29 and 30 years of age and was living alone. She was not taking her medication regularly and described deterioration in her mental state. She was having what appears to be intermittent contact with Mental Health Services. She was abusing methamphetamines and cannabis. Likely as a consequence of her discontinuation of her medication along with ongoing methamphetamine abuse and cannabis, there was an aggravation and exacerbation of mental illness symptoms and possibly a relapse.

In April 2012 in the context of an arrest, she injured her knee and she had gone to hospital. At hospital she had been told that there was nothing wrong only to find out that there were more significant injuries. She describes that for some of the offences she was preoccupied with pain with her knee. For the period of the offending, she held beliefs that the Police and government were out to get her, that there was some sort of conspiracy - at times involving the Police, the government as well as medical professionals in hospitals also causing her concern to the extent that in occasion she thought that they may be plotting to kill her. She was having déjà vu experiences, which indicated, 'something might happen' which would aggravate her paranoid interpretation of events. She was hearing voices, cars outside and people walking around her flat.

While to a large degree there appears to have been a rational basis of holding these beliefs (there was an acrimonious relationship between herself) and the police and for this reason, perceived herself as persecuted by the authorities), my clinical impression is that this was further exaggerated by underlying paranoia and that some of her ideas such as that there conspiracy to kill her were distortions (or exaggerations) due to underlying paranoia. Notably she called Police on occasion in order to try and negotiate her circumstances which, in my view, is suggestive of the degree of conviction with which she held and the perspective that there was some form of conspiracy. This along with her report of déjà vu experiences (as indicative of something about to happen) and the auditory phenomena lead me to conclude that she had symptoms of consistent with a psychosis, consistent with the legal term 'mental impairment' that persisted through the period of the offending.

It is likely that there ensued a 'vicious circle' in her interaction with police (and other services) - in the context of actual interaction with police, her paranoia contributed to a sense of unjust treatment by Police (or inadequate treatment by medical services), and provided justification in engaging in behaviours that resulted in more conflict with Police; reaction by police to those behaviour compounding her sense of persecution in turn providing her with more justification as well as aggravating underlying feelings of irritability, anger at the authorities.

In my view the behaviour that resulted in her charges relate to her indignation and dissatisfaction with what she perceived was unjust or unacceptable treatment of her by the authorities and anger and frustration.

...

In my view perceived her as being victimised by police and other authorities to an exaggerated extent due to her mental impairment. This would have contributed to her believing herself to be justified in her actions and thus the mental impairment would be regarded, as having eroded her capacity to know the wrongfulness in a moral sense to some degree, but in my view did not negate this capacity.

I would regard her mental illness symptoms being in the 'background' at the time of the offences and thus to some degree contributing, variably contributing to feelings of anger, indignation and fear. Thus symptoms of mental illness would have contributed to some degree to aggression, at times with loss of control, but in my view only partially.

Determining whether or not she has a mental impairment defence is difficult.

I am of the view that mental illness symptoms contributed to her offences but I am of the view that she does not have a defence of mental impairment and that mental illness should be taken into consideration in mitigation.

Having said this, the issue is difficult to resolve given the multiple charges, and in my view requires adjudication.

114. It is fair to say that while Dr Allnutt expressed the view that Ms McGuckin did not have a mental impairment defence, he was by no means certain, and qualified his opinion, the issue being "difficult to resolve".

115. On 17 December 2013, he wrote again, further changing his position. He wrote

You will note that the final paragraph of that report states that the issues with regard to a mental impairment defence are difficult to resolve given the multiple charges and I thought that matter required adjudication. What I meant to convey was that while thought on balance your client did not meet the test it was a difficult issue to determine from a psychiatric perspective and that is would be better that the matter was put to the court for examination.

Determining the issue a mental impairment defence is a legal determination and requires legal adjudication because there are numerous non-psychiatric legal and social factors taken into consideration. While in some cases the issue appears clinically obvious, it is not so in this case. For example, what degree of mental impairment is required for a determination of being incapable to control actions in legal terms? What is loss of control in legal terms and does this case meet that definition?

Determining the degree contribution that the mental illness made to her offending at the material time is difficult. Overall, I am of the view that she has a mental illness that would have contributed to losing control but whether this meets the legal test in terms of severity is difficult for a psychiatrist to determine.

116. Finally, on 18 February 2014, he expressed what appears to be his final opinion, when he wrote

I have found resolving this case difficult, partly because there is evidence of motive that appears rational and because of the numerous offences over a lengthy period of time. But also there has also been evidence of ongoing psychotic symptoms and she presents overall as a highly disturbed individual, with limited personal resources and in my view in need of long term psychiatric care.

I have continued to ponder my opinion and over time have come to the conclusion that I must change my opinion as expressed in my prior report and conclude that she has a 'mental impairment' defence available to her.

There is evidence of ongoing psychotic symptoms during the offending period, which in my view would have aggravated feelings of indignation, fear and frustration. She would have been more prone to an inflexible approach to situations due to her schizophrenia. I am of the view that it is reasonable to conclude that, due to and exaggeration of her perception of persecution, she would not have been able to adequately conform her behaviour, was more vulnerable to impulsive aggression due to her mental illness symptoms, and on this basis was unable to control her actions.

117. He also gave oral evidence. He agreed with Ms McGuckin's counsel's proposition that mental illness predisposes the sufferer to psychosis and that psychosis will occur in periods when it is florid and that it otherwise may abate. A person such as Ms McGuckin with a chronic mental illness will not necessarily be psychotic all the time.

118. She will, however, be predisposed to psychosis which could be induced by substance use or non-treatment when she will present with a recurrence of the psychotic symptoms.

119. He agreed, too, that it was difficult to come to a clear conclusion as to the existence of the circumstances which justifies a finding of the mental impairment defence where there are multiple offences, especially committed one time. There would be multiple triggers for her behaviour with some "acting out" behaviour. She would also be angry because, from her, distorted, perspective, she would not be guilty of any impropriety.

120. In his view, the mental illness disabled her ability to control her behaviour. The background psychosis contributed to her anger, frustration and acting out behaviour. Thus, he said the effect on her for each of the offences, that her illness contributed to a disinhibition and her acting out, was caused by her perception of being persecuted.

121. Thus, although she would not meet the M'Naghten test (Daniel M'Naghten's Case [1843] EngR 875; (1843) 10 Cl & Fin 200; 8 ER 718), she was a highly disturbed woman with years of problematic care for her mental condition. This has led to her illness driving her offending behaviours. He said he found himself agonising over the level of contribution, but in the end, after careful consideration, concluded that on the balance of probabilities it did so entirely.

122. Not surprisingly, Dr Allnutt was cross-examined about his change of opinion. He said that after he had completed his report, he had continued to ponder the case. He said that, although he had had some discussions with Ms McGuckin's lawyer, there was no interaction between them, either seeking him to change his opinion or causing or inducing him to do so.

123. He said he had had great difficulty in reaching a conclusion because of the multiple offences, however, he finally came to a final view which he had expressed in his last letter, from which I have quoted above (at [116]).

124. He said he could not say or put a date on when Ms McGuckin was suffering from psychosis or when the symptoms were present. He was, however, able to form the opinion that psychosis was present when she committed the offences. He agreed that initially he could not, but after further consideration came to the firm opinion that he could and did.

125. Dr Allnutt described Ms McGuckin's situation as that of a highly disadvantaged person who saw herself as persecuted. She was, he said, vulnerable and her temperament and illness predisposed her to be easily angered and highly suspicious. On top of that, her paranoid schizophrenia would sometimes affect her suddenly. This led to her being quite significantly compromised to the extent that she would not be able to control her conduct.

126. He said that he also relied on her criminal history which showed that, between 2002 and 2012, she had been dealt with under s 334 of the Crimes Act, where the Magistrates Court could dismiss a charge when a defendant is mentally impaired.

127. He affirmed his opinion that, at the time of the offences charged, she was unable to control her actions.

128. Mr A Doig, counsel for Ms McGuckin, pointed out that, at least since 1 June 2010, when Dr George reported on her, the conditions for a mental impairment defence were apparent. He pointed to the following findings that Dr George then made as follows:

Of course, she suffers an ongoing chronic mental illness in the form of paranoid schizophrenia. Her insight and judgement could be flawed at any particular time but especially, with exacerbations of illness. Even though her pharmacological treatment is appropriate, she does not have complete remission of symptoms and undoubtedly, this could contribute to negative interactions with others within the community.

129. He pointed then to Dr George's Report of 20 July 2012, proximate to the second alleged offence which occurred two days later. This was, he submitted, significant because it was a contemporaneous assessment of her condition.

130. Dr George reported that, at that time she was "in a reasonably well state at this point in time" but pointed to the "underlying schizophrenic process".

131. Her behaviour on the occasion of the first alleged offence is quite inconsistent with this, clear evidence of relapse into an episode of mental illness.

132. Mr Doig noted that on 19 December 2012, she had been calm on 10 December 2012 but by 16 December 2012 she was threatening the triage nurse at The Canberra Hospital. Despite having threatened police who attended that, if they tazered or sprayed her, she would stab herself, she was, when examined by Dr Jones on 19 December 2012, calm and well organised. She noted a past history of self harm and, although Dr Jones noted there was "no indication of current thoughts of self harm", she considered that "[t]he risk of suicide or self harm requires active management or intervention".

133. The next day, during the events surrounding the third alleged offence, Ms McGuckin was trying to cut herself with the cut glass she gained from smashing her watch face.

134. Mr Doig also referred to the mental health dispositions under s 334 of the Crimes Act , to which I have earlier referred (at [126]).

135. He submitted that Dr Allnutt's final opinion was reliable. Despite the change from his initial opinion, there was no basis for discounting the final one. He had been open about the change of mind, the reason why he inclined to his first opinion and how he had come to change his mind.

136. Ms S Gul, who appeared for the Crown, referred to the change in opinion of Dr Allnutt also, submitting that it would lead me to have a doubt about whether his final opinion was the one on which I could rely to make the necessary finding.

137. She accepted that Dr Allnutt had frankly addressed the equivocality of his opinions. In the end, she submitted that it was a matter for the court.

138. The matter is clearly one of some difficulty. There have been a range of diagnoses of Ms McGuckin, though I have accepted above (at [106]) that made by Dr Allnutt.

139. Like Dr Allnutt, I have a sense of unease about the fact that there are multiple offences alleged, all at quite different times.

140. Nevertheless, there are powerful reasons why Dr Allnutt's final opinion might be accepted.

141. Ms McGuckin has had difficulties with the law since at least 2002. She has clearly been mentally ill for that time, probably much longer. The difficulty of diagnosis cannot have assisted with the determination of appropriate treatment and support for her and management of her condition and behaviour.

142. There is a stark contrast between the assessments of her mental state by Dr George and Dr Jones just days before two of the offences are alleged to have occurred on the one hand and her behaviour at the time of the offences on the other. This is suggestive of a significant contribution from her mental illness.

143. The elements of that behaviour are also indicative of her mental illness: a sense of entitlement fuelled by a distorted perception of her situation together with a suspicion and sense of persecution from those who, to the rest of us, would be seen to be acting rationally and as we would ordinarily expect.

144. Her behaviour also has strong elements of irrationality that is clearly attributable to her mental illness. The behaviour at the supermarkets is not that of a shop lifter; she was brazen about what she was doing, only consistent with a distorted perception of entitlement. Then her rather excessive reaction when confronted confirms that assessment.

145. I have given careful consideration to the reversal of opinion of her Dr Allnutt. I listened carefully to his oral evidence and to the cross-examination. I am satisfied with his explanation of the way in which he came to the final opinion and the basis for it.

R v McGuckin [2014] ACTSC 242

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (208 paragraphs)

R v McGuckin [2014] ACTSC 242 (18 September 2014)

Parties

Legislation Cited (6)

Cases Cited (2)