A-G (Qld) v Bosanquet - [2012] QCA 367

SUPREME COURT OF QUEENSLAND

CITATION:

A-G (Qld) v Bosanquet & Ors [2012] QCA 367

PARTIES:

ATTORNEY-GENERAL OF QUEENSLAND
(appellant)
v
DAVID ANDREW BOSANQUET
(first respondent)
DIRECTOR OF MENTAL HEALTH
(second respondent)
DIRECTOR OF PUBLIC PROSECUTIONS
(third respondent)

FILE NO/S:

Appeal No 223 of 2012
MHC No 45 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Mental Health Court

ORIGINATING COURT:

Mental Health Court at Brisbane

DELIVERED ON:

21 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2012

JUDGES:

Margaret McMurdo P and Gotterson JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is dismissed.

2. The decision of the Mental Health Court that the respondent was of unsound mind at the time of all the alleged offences the subject of the references to the Mental Health Court is confirmed.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the Mental Health Court found that at the material time the first respondent was of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld) – whether the Mental Health Court erred in determining that the first respondent’s mental illness deprived him of the capacity to control his actions – whether the Mental Health Court erred in determining that the first respondent’s mental illness deprived him of the capacity to know he ought not do the act – whether the Mental Health Court misapplied the concept of deprivation of capacity – whether the Mental Health Court erred in making a finding that the first respondent’s state of mind did not result, to any extent, from intentional intoxication or stupefaction – whether a fact that is substantially material to the opinion of the expert witnesses was so in dispute that it was unsafe to make the decision

Mental Health Act 2000 (Qld), s 267, s 269, sch 2

Attorney-General of Queensland vKamali (1999) 106 A Crim R 269; [1999] QCA 219, cited
Berg v Director of Public Prosecutions (Qld) [2012] QCA 91, considered
DAR v DPP (Qld) & Anor [2008] QCA 309, considered
R v Porter (1933) 55 CLR 182; [1933] HCA 1, cited
Re B (unreported, Mental Health Tribunal, Dowsett J, 3 November 1997), considered
Re Bosanquet (unpublished, Mental Health Court, Ann Lyons J, 12 December 2011), related
ReLIH [2002] QMHC 14, considered
Re SAM [2003] QMHC 3, considered
Re W (unreported, Mental Health Tribunal, Dowsett J, 14 October 1997), considered
Reid v DPP (Qld) & Anor [2008] QCA 123, considered
Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56, cited

COUNSEL:

B J Campbell, with A K Lossberg, for the appellant and the third respondent
S J Hamlyn-Harris, with J D Briggs, for the first respondent
No appearance for the second respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant and the third respondent
Legal Aid Queensland for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCA 367
Decision Date: 21 December 2012

CaseChat Overview and Summary

In the case of A-G (Qld) v Bosanquet, the appeal was against the decision of the Mental Health Court which found that the first respondent was of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld). This case arose from offences of violence and dishonesty committed by the first respondent. The appeal raised issues regarding whether the Mental Health Court had erred in determining that the first respondent's mental illness deprived him of the capacity to control his actions and to know he ought not do the act. Additionally, the appeal questioned whether the Mental Health Court misapplied the concept of deprivation of capacity and erred in making a finding that the first respondent’s state of mind did not result, to any extent, from intentional intoxication or stupefaction. Finally, the appeal challenged whether a fact that was substantially material to the opinion of the expert witnesses was so in dispute that it was unsafe to make the decision.

The court considered the evidence and submissions presented, including the expert opinions and the statutory framework under which the Mental Health Court operates. It was determined that the Mental Health Court had correctly applied the relevant statutory provisions and had not erred in its findings. The evidence supported the conclusion that the first respondent's mental illness deprived him of the capacity to control his actions and to know he ought not do the act. The court held that the Mental Health Court had not misapplied the concept of deprivation of capacity and had correctly found that the first respondent’s state of mind did not result from intentional intoxication or stupefaction. The court also found that the disputed fact did not render the decision unsafe.

In light of the above, the appeal was dismissed. The court confirmed the decision of the Mental Health Court that the first respondent was of unsound mind at the time of the alleged offences. The court's reasoning and findings upheld the Mental Health Court's decision, which was based on a thorough examination of the evidence and a proper application of the law.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Mental Health Court that the respondent was of unsound mind at the time of all the alleged offences the subject of the references to the Mental Health Court is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A-G (Qld) v Bosanquet & Ors [2012] QCA 367
PARTIES:	ATTORNEY-GENERAL OF QUEENSLAND (appellant) v DAVID ANDREW BOSANQUET (first respondent) DIRECTOR OF MENTAL HEALTH (second respondent) DIRECTOR OF PUBLIC PROSECUTIONS (third respondent)
FILE NO/S:	Appeal No 223 of 2012 MHC No 45 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from the Mental Health Court
ORIGINATING COURT:	Mental Health Court at Brisbane
DELIVERED ON:	21 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2012
JUDGES:	Margaret McMurdo P and Gotterson JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed. 2. The decision of the Mental Health Court that the respondent was of unsound mind at the time of all the alleged offences the subject of the references to the Mental Health Court is confirmed.
CATCHWORDS:	MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the Mental Health Court found that at the material time the first respondent was of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld) – whether the Mental Health Court erred in determining that the first respondent’s mental illness deprived him of the capacity to control his actions – whether the Mental Health Court erred in determining that the first respondent’s mental illness deprived him of the capacity to know he ought not do the act – whether the Mental Health Court misapplied the concept of deprivation of capacity – whether the Mental Health Court erred in making a finding that the first respondent’s state of mind did not result, to any extent, from intentional intoxication or stupefaction – whether a fact that is substantially material to the opinion of the expert witnesses was so in dispute that it was unsafe to make the decision Mental Health Act 2000 (Qld), s 267, s 269, sch 2 Attorney-General of Queensland vKamali (1999) 106 A Crim R 269; [1999] QCA 219, cited Berg v Director of Public Prosecutions (Qld) [2012] QCA 91, considered DAR v DPP (Qld) & Anor [2008] QCA 309, considered R v Porter (1933) 55 CLR 182; [1933] HCA 1, cited Re B (unreported, Mental Health Tribunal, Dowsett J, 3 November 1997), considered Re Bosanquet (unpublished, Mental Health Court, Ann Lyons J, 12 December 2011), related ReLIH [2002] QMHC 14, considered Re SAM [2003] QMHC 3, considered Re W (unreported, Mental Health Tribunal, Dowsett J, 14 October 1997), considered Reid v DPP (Qld) & Anor [2008] QCA 123, considered Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56, cited
COUNSEL:	B J Campbell, with A K Lossberg, for the appellant and the third respondent S J Hamlyn-Harris, with J D Briggs, for the first respondent No appearance for the second respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant and the third respondent Legal Aid Queensland for the…