Attorney-General (Qld) v Farrah

[1996] QCA 267

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 4804 of 1996
[A.-G. v. Farrah]

IN THE MATTER of a determination

of Mental Health Tribunal

BETWEEN:

THE ATTORNEY GENERAL OF QUEENSLAND

(Appellant)

AND:

ROSS MITCHELL FARRAH

(Respondent)

Fitzgerald P Derrington J White J

Judgment delivered 13 August 1996

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	Criminal Law - Attorney-General appeal from Mental Health Tribunal - Finding by Tribunal of unsoundness of mind at time of offence - Whether Mental Health Act 1974 permits appeal - Whether Attorney-General has standing - Relevance of identity of party who referred matter to Tribunal - Mental Health Act 1974, ss.28D, 31, 43A.
Counsel:	P. Rutledge for the Appellant S. Hamlyn-Harris for the Respondent
Solicitors:	Queensland Director of Public Prosecutions for the Appellant Legal Aid Office for the Respondent

Hearing Date: 6 August 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 4804 of 1996
Before:Fitzgerald P

Derrington J

White J

[A.-G. v. Farrah]

IN THE MATTER of a determination

of Mental Health Tribunal

BETWEEN:

THE ATTORNEY GENERAL OF QUEENSLAND

(Appellant)

AND:

ROSS MITCHELL FARRAH

(Respondent)

JUDGMENT OF THE COURT

Judgment delivered 13 August 1996

The Attorney-General has instituted an appeal against a finding by the Mental Health

Tribunal of unsoundness of mind of the respondent at the time when he killed a person. That

had the consequence of his automatic acquittal on the ground of insanity in respect of the charge

of murder laid against him and his committal to a hospital for the "criminally" insane as a

restricted patient.

The respondent has taken a preliminary point of jurisdiction on the ground that the

appeal is incompetent. The two bases for this are disparate. The first is that the Mental Health

Act 1974, which controls the matter, does not allow an appeal by the Crown in the

circumstances of this case. The second is, in the alternative, that the Attorney has no standing to

bring it because the "Crown Law Officer" to whom that right is afforded must be the Director of

Prosecutions because it was that officer who appeared at the hearing before the Mental Health

Tribunal.

Is an appeal available?

The Act permits only limited rights of appeal, the relevant criterion for which is the

identity or interest of the party who referred the matter to the Tribunal in the first place. In

particular the Crown Law Officer has a right of appeal in this instance only if the reference to

the Tribunal was made by or on behalf of the respondent.

The pivotal fact is that the reference was made by the Director of Mental Health

Services pursuant to a duty imposed by the Act when a person charged with an offence is a

restricted patient within a mental institution. This leads to the decisive issue, which is whether

the Director's reference was made "by or on behalf of" the respondent within the meaning of the

appeal provisions. In order to determine that, it is necessary to review the legislation relating to

the above features.

The reference was correctly made by the Director under the provisions of ss.28D.(1)

which says -

"28D.(1) Where there is reasonable cause to believe that a person alleged to have committed an indictable offence is mentally ill was mentally ill at the time the alleged offence was committed the matter of the person's mental condition may be referred to the Mental Health Tribunal by:

(a) A Crown Law Officer; or

(b)  the person concerned or the person's legal adviser or the person's nearest relative; or

(c)  where the person has been admitted to hospital under this Act for treatment of mental illness - the Director;

for its consideration and determination in accordance with this Part."

This is supplemented, in circumstances such as those existing in this case, by s.31.(8),

which says:

"31.(8) Unless the Director reports to the Attorney-General that the patient does not need to be detained on account of mental illness, a Crown Law Officer or the Director shall refer the matter of the patient's mental condition to the Mental Health Tribunal."

The finality and conclusiveness of the Tribunal's decision is established by s.43A.(1),

subject to exception in respect of the rights invested by subs.(3), which reads as follows:

(3) An appeal against a decision of the Mental Health Tribunal may be
instituted to the Court of Appeal by -

(a)   the person to whose mental condition the decision relates, if the decision has been made by the Mental Health Tribunal in a reference instituted to it by a Crown Law Officer or the Director and the person is aggrieved thereby;

(b)    the person to whose mental condition the decision relates, if the decision of the Mental Health Tribunal is that the person was suffering from unsoundness of mind at the time an alleged offence was committed and has been made in a reference instituted by or on behalf of that person in which the person was seeking a decision that the person was suffering from diminished responsibility at that time;

(c)    the person to whose mental condition the decision relates, if the decision of the Mental Health Tribunal is that the person is unfit for trial and the person is aggrieved thereby;

(d)    the Crown Law Officer, if the decision of the Mental Health Tribunal is that the person to whose mental condition the decision relates was suffering from unsoundness of mind or from diminished responsibility at the time an alleged offence was committed and has been made in a reference instituted by or on behalf of that person;

and shall not be available in any other circumstances."

While it is subparagraph (d) that is of the highest relevance to the present question, the

structure of the entire subsection is also revealing. It recognises a clear distinction between a

reference made by a Crown Law Officer or the Director on the one side and one made "by or on

behalf" the patient on the other. In the first case it gives a right of appeal to the patient, and in

the second it gives a similar right to the Crown Law Officer.

This formal distinction is clearly identifiable with a similar distinction made in s.28D.(1). A reference by the Crown Law Officer mentioned in (a) of that section and by the Director mentioned in (c) relate to s.43A.(3)(a). A reference by the patient or by one of the

other persons representing his interests mentioned in (b) relates to s.43A.(3)(d). This

demonstrates the character of the conceptual division of the scheme of appeal rights.

In referring a case to the Tribunal, the Crown may be serving its own interests as the

prosecuting authority, or it may be performing its duty under s.31.(8). As between these, no

distinction is made by s.43A.(3)(a), and it is logical that a reference by the Director, who is

paired with the Crown in one of its roles by s.31.(8), should be equally paired with it in

s.43A.(3)(a) in the formulation of appeal rights. Conversely, it is distinguished from the class

described in s.43A.(3)(d), where the description "a reference instituted by or on behalf of (the

patient)" is meant to apply collectively to a reference under s.28D.(1)(b) by "the person

concerned or the person's legal adviser or the person's nearest relative".

This construction indicated by the framework of the statute conforms very comfortably

with reason and with the ordinary meaning of the words used. The persons referred to in

s.28D.(1)(b) are the obvious persons answering the description of those who could institute a

reference on the patient's behalf, and there is no need to go further.

However, the Attorney argues that a mandatory reference by the Crown Law Officer or

the Director under s.31.(8) is also made "on behalf of" the patient. There is no foundation for

this. The section itself does not say or imply it, and the context cannot lead to such a

construction. The provision for compulsory reference is neutral on the point, being required in

the general public interest.

Such a reference is not made on behalf of the Crown to further its interest in the

prosecution of the alleged offence. Equally, it is not made on behalf of the patient whose

wishes and interests may be badly served by it. Specific provision is made for a reference to be

instituted by or on behalf of each of those opposing parties to further their respective interests;

and then in s.31.(8) providing for a compulsory reference is introduced in the public interest.

The contrary argument was necessarily convoluted, attempting to relate some terms with

others within the structure of the reference and appeals provisions in a way that failed to take

into account these obvious factors against it; and even in itself it was unconvincing.

In the result, the Crown has no right of appeal in this case. The appeal is incompetent

and the motion to have it struck out should succeed.

The appellant's standing

Because of the above result it is unnecessary to consider this ground of jurisdiction.

Orders

The appeal is struck out.