Re DWB
[2004] QMHC 16
•15 March 2004
MENTAL HEALTH COURT
CITATION:
Re DWB [2004] QMHC 016
PARTIES:
REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF DWB
PROCEEDING NO:
0035 of 2003
DELIVERED ON:
15 March 2004
DELIVERED AT:
Brisbane
JUDGE:
ASSISTING PSYCHIATRISTS:
Wilson J
Dr J F Wood
Dr D A GrantFINDINGS:
1) That the defendant is permanently unfit for trial;
2) That no forensic order be made.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with a number of counts of incest, indecent assault on a female and sodomy – where there is no evidence that the defendant was of unsound mind at the time of the alleged offences - where the defendant has permanent and progressing dementia – whether the defendant is fit for trial – whether a forensic order should be made
Mental Health Act 2000 (Qld) schedule 2
R v M [2002] QCA 464
Kesavarajah v. The Queen (1994) 181 CLR 230The Queen v. Presser [1958] VR 45
COUNSEL:
R Devlin for the defendant
J Tate for the Director of Mental Health
P Rutledge for the Director of Public ProsecutionsSOLICITORS:
Hoolihans Lawyers for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions
WILSON J: DWB has been charged with a number of offences allegedly committed in the 1960s. They are as follows:
Indecent treatment of a girl under 16 years, between 1 January and 1 March 1963;
Incest between 1 January and 1 March 1963;
Incest between 1 January and 1 July 1963;
Incest between 1 January 1965 and 19 November 1966;
Two counts of incest between 1 January 1965 and 19 November 1966;
Indecent assault on a female between 1 January 1963 and 31 December 1964; and
Sodomy between 1 January 1965 and 31 December 1965.
There is no evidence that the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000.
The defendant disputes the charges. The issue before the Court is that of his fitness for trial.
He was born on 18 February 1922. The Court has before it two reports by Dr Peter Fama, two reports by Dr Tom Hogan and a report by Dr Ian Lynagh, consultant psychologist.
The reports are unanimous in coming to the conclusion that the defendant is unfit for trial and that his unfitness is of a permanent nature.
Dr Fama examined the defendant twice, on 8 July 2003 and on 19 February 2004. After the first examination, he considered that while the defendant was suffering from dementia of the Alzheimer's type, he was nevertheless fit for trial.
However, on his more recent examination, he noted a rapid and serious decline in the defendant's cognitive ability, such that he considered he was unfit for trial and permanently so.
Dr Hogan also examined the defendant more than once - on 28 October and 7 November 2003 and on 10 March 2004. He also considered he was suffering from dementia, but thought there may be a large vascular element involved.
Be that as it may, the dementia is a permanent and progressing condition. Again, Dr Hogan was initially of the view that the defendant was fit for trial, but noted rapid decline to the point where he is no longer fit.
Dr Lynagh administered various tests. He had seen the defendant in November 2002 and again in March 2004. He found him to have deteriorated significantly in his cognitive competence and emotional adjustment and expressed the opinion that he does not have the mental competency or emotional capacity adequately to address and cope with any substantial litigation.
Under the Mental Health Act, fitness for trial is defined in this way:
"Fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely".
This definition came before the Court of Appeal in the matter of R v. M [2002] QCA 464, determined on 5 November 2002. There the Court confirmed that the question of fitness for trial under the Mental Health Act is the same question as that considered by the High Court in Kesavarajah v. R (1994) 181 CLR 230 and R v. Presser [1958] VR 45.
For almost 150 years, the question has been looked at in terms of six sub questions:
The ability to understand the nature of the charge;
The ability to plead to the charge and to exercise the right of challenge;
The ability to understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence charged;
The ability to follow the course of the proceedings;
The ability to understand the substantial effect of any evidence that may be given in support of the prosecution; and
The ability to make a defence or answer the charge.
The charges which the defendant faces are very serious ones. However, the unanimous view of the psychiatrists and psychologist who have reported to the Court is that he cannot meet those tests.
Accordingly, the Court has no option but to find him unfit for trial. Given the cause of that unfitness, namely a dementia, the unfitness is clearly of a permanent nature.
The only outstanding question is whether the Court ought to make a forensic order. The Court takes into account the seriousness of the alleged offences, the defendant's treatment needs and the protection of the community. As I have said, they are very serious offences. However, no other criminal conduct has ever been proven against him and there is presently on the evidence no risk to the community.
His treatment needs are, it seems, being met by his general practitioner and will, during the course of his progressive illness, be more likely to be of a medical than a psychiatric nature.
He is presently living at home with some supervision from adult members of his family. While he continues to live alone, albeit with that supervision, he is at certain risks, but this is not a case where the Court should, in my view, intervene by ordering his detention to a psychiatric unit, with or without limited community treatment.
Accordingly, I decline to make a forensic order.
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