Dancey v QPS

Case [2020] QMC 18

MAGISTRATES COURTS OF QUEENSLAND

CITATION: 

Dancey v QPS [2020] QMC 18

PARTIES: 

Christopher Dancey

(Applicant/Defendant)

v

 Constable P.R. Elford

(Complainant/Respondent)

FILE NO/S: 

MAG-00005539/1(6)

DIVISION: 

Magistrates Courts

PROCEEDING: 

ORIGINATING 

Criminal

COURT: 

Maroochydore

DELIVERED ON: 

15 May 2020

DELIVERED AT: 

Maroochydore

HEARING DATE: 

13/06/19 & 18/07/19

MAGISTRATE: 

H Stjernqvist

ORDER: 

Application dismissed

CATCHWORDS: 

S 172 Mental Health Act 2016 – S 109 Mental Health Act Meaning of unsound mind – Unsoundness – Intermittent Explosive Disorder (IED) – S 27 Criminal Code Insanity – Impaired/deprived – Reasonably satisfied on the balance of probabilities – Medical Reports – Reliance on clear and convincing evidence.

COUNSEL: 

SOLICITORS: 

Sgt P Stephens for the Queensland Police Service

Mr C Lumme Solicitor AFT for the Defendant

Charge.

  1. Christopher Dancey is charged;

  1. That on 8 of December 2018 at Buderim in the State of Queensland one Christopher Dancey dangerously operated a vehicle namely a motor car in a place namely King Street Buderim.

Facts – Witness Dash-cam.

  1. The witness was travelling along King Street and has pulled into a car park on the side of the road outside the newsagency. The witness has stayed for a moment, waited for traffic, indicated and proceeded to enter the marked lane in King Street.

  1. At the same time the defendant who was on Short Street (T intersection with King Street) waiting for traffic.  The defendant intended to turn right onto King Street.  It is clear at this time, the defendant was looking for traffic approaching from his right and had not seen the witness (on his left) leave the parking space.

  1. The defendant commenced his turn out of Short Street onto King Street before looking to see the witness approaching the intersection.  The defendant has come to a sudden stop in the middle of the oncoming lane – at the same time the witness and slowed – and made some comment such as ‘oi’ then proceed past the front of the defendants’ vehicle along King Street without incident.

  1. The defendant is then immediately behind the witness continually activating his horn to which the witness can be heard saying ‘righto’ ‘righto’ and then has come to a complete stop in front of the defendants vehicle.  At this point the witness can be heard to say ‘go on’ ‘go on’ presumably to encourage the defendant to go around. 

  1. At this time the footage (dash-cam from witness’s vehicle) reveals the oncoming traffic to be slowing as the defendant had driven onto the incorrect side of the road to be abreast of the victims driver side door and angles into the front right of the witnesses vehicle which caused the witness to veer slightly to the left of the carriage way at the same time exclaiming “are you fucking retarded.”  The defendant has again sped up and came alongside the witness vehicle and into oncoming traffic at one stage swerving towards the witness’s vehicle narrowly missing him.

  1. The witness then proceeds along King Street and enters the right…

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Details
AGLC
QPS v Dancey [2020] QMC 18
Case
[2020] QMC 18
Decision Date

CaseChat Overview and Summary

The case of Dancey v QPS involved an appeal against a decision regarding the defendant's fitness to be excused from the charge of dangerous operation of a motor vehicle under section 172 of the Mental Health Act 2016. The defendant was diagnosed with Intermittent Explosive Disorder (IED) and argued that this condition rendered him unsound of mind at the time of the offence. The Queensland Police Service (QPS) opposed the application, contending that the defendant was not unsound of mind at the time of the offence. The dispute was heard in the District Court of Queensland.

The primary legal issues before the court were whether the defendant was unsound of mind at the time of the offence, and if so, whether this was due to a mental disorder that met the criteria under section 172 of the Mental Health Act 2016. The court had to determine the appropriate standard of proof in this context and assess the evidence presented by the medical experts, Dr. Barnes and Dr. Ouzas, to determine whether the defendant's IED deprived him of the capacity to control his actions at the time of the offence. The court was also required to consider the relevant legal principles, particularly those pertaining to the definition of 'unsound mind' and the principles of Brigginshaw, to ensure that the defendant's rights were adequately protected.

The court found that the defendant was not unsound of mind at the time of the offence. The evidence provided by the medical experts was polarised, and neither party bore the onus of proof. The court applied the Brigginshaw approach, requiring a higher standard of evidence in view of the serious nature of the offence. Despite the defendant's diagnosis of IED, the court concluded that the evidence did not support the finding that the defendant was deprived of the relevant capacities at the time of the offence. Consequently, the application was dismissed, and the defendant was not excused from the charge under section 172 of the Mental Health Act 2016.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Decision/Findings. The offence for which the defendant askes to be excused is Dangerous Operation of a Motor Vehicle. The offence is punishable by a maximum of 200 penalty units or 3 years imprisonment and, a minimum period of disqualification of 6 months. The offence is a serious offence – the foreseeability of injury or worse, is palpable. The offence – ‘dangerous operation of a motor vehicle’ can be committed under different circumstances. The offence committed by the defendant is characterised as ‘road rage’. The offence is prevalent. The origin of this offending commenced in the same way as any dangerous operation offence – that is, a driver loses his or her temper themn operates his or her vehicle in a way that is dangerous to the public and other road users. That loss is a compulsive reaction. I accept the defendant was then and is, diagnosed with an Intermittent Explosive Disorder (IED). Dr Ouzas describes the IED as “severe” on page three of his report. I accept, as Dr Ouzas said in his evidence, that the defendant – at the moment he saw the victims’ vehicle, that he may have, then and there, ‘for that moment’ lost the capacity to control his action. I have watched the dash cam footage several times – its lasts approximately 60 seconds which, in the circumstances is a considerable time. The decision therefore requires an assessment of the cogency of the evidence as it is relevant to the IED condition the offending behaviour and of course the law relevant to S. 172 MHA. In my view - given the serious nature of the offence, the cogency of the evidence, in so far as the capacity of the defendant is concerned, must be strong and unequivocal – a higher level of evidence in accordance with the Brigginshaw approach mentioned above. I accept neither party bears the onus of proof. The nature of this proceeding requires a consideration of the evidence, then a finding as to whether I am reasonably satisfied on the balance of probabilities that the defendant, at the time he committed the offence was deprived of one or more of the S.27 CC capacities. In A-G (Qld) v. Bosanquet & Ors[14] the QCA stated; SCN v Director of Public Prosecutions & Anor[15] the QCA confirmed the position in Queensland is as stated in Stapleton[16] and, by reference to M’Naghten’s case[17] stated;[18] The law relevant to S. 27 CC is well established. I have considered the factual evidence and expert evidence of both Dr. Barnes and Dr. Ouzas relevant to the established principles and law. The qualifications and expertise of both witnesses is accepted. Even if the expert evidence was not controversial – in that both agreed the defendant was deprived of the relevant capacities – I would still be required to be reasonably satisfied, on the balance of probabilities that the evidence supported a finding that the defendant was, or appears to have been, of unsound mind when he offended. That is not the case here – the opinions are polarised. I am therefore required to assess the cogency of both Dr. Barnes and Dr. Ouzas keeping in mind the approach developed by the Mental Health Court.

Ratio Decidendi

Legal Principle Established

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