Re AMD

[2005] QMHC 44

MENTAL HEALTH COURT

CITATION:

Re AMD [2005] QMHC 44

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF AMD

PROCEEDING NO:

No 0082 of 2005

DELIVERED ON:

21 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1.   With respect to the alleged sexual offences and assault offences in July 2002 and January 2003, there is a reasonable doubt that the defendant committed the alleged offences.

2.   The defendant is temporarily unfit for trial.

3.   With respect to the alleged offences of obstructing a Corrective Services Officer on 10 July 2004 and assaulting police on 5 December 2004, there is a dispute relating to substantially material facts.

4.   The defendant is detained as a forensic patient to The Park High Security Programme and Authorised Mental Health Service.  

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with various offences including rape and indecent assault – where defendant previously denied guilt with respect to earlier alleged offences – whether reasonable doubt exists only as a consequence of a mental condition pursuant to s 268, Mental Health Act 2000 (Qld) – whether, in relation to later offences, there exists a dispute relating to substantially material facts pursuant to s 269, Mental Health Act 2000 (Qld) – whether reasonable doubt, or a dispute relating to substantially material facts, precludes a finding of unsoundness in the future – whether defendant fit for trial – whether any unfitness is of a permanent nature – whether forensic order required

Mental Health Act 2000 (Qld), s 268, s 269, Schedule 2

COUNSEL:

S Ryan for the defendant
J Tate for the Director of Mental Health

S Vasta for the Director of Public Prosecutions 

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

1. HOLMES J:  AMD is charged with assault on 27 July 2002, indecent assault on 5 August 2002 and 26 November 2002, two counts of indecent assault on dates unknown between 20 December 2002 and 4 January 2003, indecent assault on 2 January 2003, indecent assault on 3 January 2003, rape on 9 January 2003, indecent assault on 9 January 2003, assault on 11 January 2003, obstructing a Corrective Services Officer on 10 July 2004 and assaulting police on 5 December 2004.  He had indicated to Dr Van De Hoef in December 2003 that he was not guilty of those charges. 

1. What is not entirely clear is whether, pursuant to s 268 of the Mental Health Act 2000 (Qld), that denial does or does not exist as a consequence of his mental condition. But in the circumstances, I think the preferable view is to proceed on the basis there is a reasonable doubt existing, not only as a consequence of any mental condition. But I make it clear that whether or not an unsoundness finding might be made at some future date, may depend very much on the outcome of present treatment of AMD.

1. I do not mean, by refraining from making a finding on unsoundness at this stage because of reasonable doubt, to preclude the possibility of any such finding in the future.  I do not, in fact, read the section as requiring that any view as to reasonable doubt then creates some form of res judicata and certainly it is not my intention that it should in this case.  That reasonable doubt then applies to the sexual offences and the assault offences in July 2002 and January 2003.

1. As to the obstructing of the Corrective Services Officer and assaulting police, it is simply uncertain at this stage as to whether that was something which occurred in the course of, or as a product of, an illness and it seems to me that there is a fact substantially material to any expert opinion which still remains uncertain. On that basis, pursuant to s 269 of the Mental Health Act, I will not proceed to make a finding of unsoundness but again, if that matter were able to be clarified in the future, I would certainly be prepared to revisit the question.

1. The medical opinion as to AMD’s mental state has been uncertain.  He certainly exhibits severe symptoms.  Dr Siddle thought that he might be suffering from an adjustment disorder which she would not characterise as a mental illness, but Dr Kovacevic who is now treating him has given evidence this morning; he says there are a number of diagnostic possibilities but his view is that whatever the ultimate diagnosis, this is a mental illness.  It is clear that the symptoms would render AMD unfit for trial. 

1. On that basis, I find that AMD is not fit for trial, but that the unfitness is not of a permanent nature.  A forensic order is required.  I order that he be detained at The Park High Security Programme and Authorised Mental Health Service.