Re ERS

[2007] QMHC 12

MENTAL HEALTH COURT

CITATION:

Re ERS [2007] QMHC 012

PARTIES:

APPEAL BY ERS AGAINST THE DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL 

PROCEEDING:

Proceeding No 0299 of 2006

DELIVERED ON:

1 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2007

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr Wood
Dr Lawrence

FINDINGS AND ORDER:

1.   The appeal is allowed

2.   The decision of the Mental Health Review Tribunal confirming the forensic order is set aside

CATCHWORDS:

MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – where appellant found to be of unsound mind – where forensic order made – where nolle prosequi entered – where appellant gave notice of election to go to trial – whether forensic order validly confirmed

Criminal Code 1899 (Qld), s 563
Mental Health Act 2000 (Qld), s 281, s 310, s 311, s 312,
s 313

R v Ferguson; Ex parte A-G [1991] 1 Qd R 35, cited

COUNSEL:

The Appellant appeared on his own behalf
Mr Tate for the Director of Mental Health

Mr W Isdale for the Attorney-General of Queensland

SOLICITORS:

Crown Law for the Director of Mental Health

Crown Law for the Attorney-General of Queensland

1. PHILIPPIDES J:  On 29 May 2006 the Mental Health Court heard a reference in relation to ERS, concerning a charge of unlawful stalking.  The Mental Health Court found that ERS was of unsound mind at the time of the alleged offence and made a forensic order and approved limited community treatment to commence immediately.  A non-contact order was also made. 

1. The forensic order has been the subject of review by the Mental Health Review Tribunal, the last review occurring on 15 November 2006 when the Tribunal confirmed the forensic order and approved limited community treatment. 

1. ERS appeals against the validity of the Tribunal’s decision of 15 November 2006 confirming the forensic order, relying on the provisions of Part 8 of the Mental Health Act 2000 (Qld) (“the Act”) and his election to have the charges proceed to trial pursuant to s 281. ERS argued that the proceedings were discontinued in contravention of s 281(2) and s 311. He contended that a decision to discontinue or withdraw the proceedings is precluded within the 28 day framework provided in s 311 and invalid, and that no forensic order can be valid in such circumstances.

Relevant provisions

1. Section 281 provides:

“281     Proceedings discontinued – unsound mind

(1)If the Mental Health Court decides a person charged with an offence was of unsound mind when the alleged offence was committed –

(a)proceedings against the person for the offence are discontinued;  and

(b)further proceedings must not be taken against the person for the act or omission constituting the offence.

(2)Subsection (1) is subject to the person exercising the person’s right under part 8 to elect to be brought to trial for the alleged offence.”

1. Part 8 provides:

“ Right to trial retained

310 Application of pt 8

This part applies if the Mental Health Court decides a person charged with an offence was of unsound mind when the offence was committed.

311       Person may elect to go to trial

(1) Despite the court’s decision, the person may elect to be brought to trial for the offence.
2) The election must be made by giving the Attorney‑General a notice in the approved form within 28 days after the person receives written notice of the court’s decision.

312       Attorney-General’s powers on election to go to trial

The Attorney-General must ensure proceedings against the person for the offence are continued according to law within 28 days after receiving the patient’s election to go to trial.”

313 Effect of election to go to trial when proceedings continued

A forensic order for the patient continues in force until a decision is made on the proceedings against the person for the offence.”

Submissions

1. By letter dated 3 June 2006 to the Registrar of the Mental Health Court, ERS gave notification that he wished to exercise his right of election pursuant to s 311 and requested that the Attorney-General be notified accordingly. ERS contended that he received written notice of the Mental Health Court’s decision on 8 June 2006, so that by s 311 he was required to give any notice of election by 6 July 2006. ERS maintained that he gave notice to the Attorney‑General by a signed Notice of Election dated 3 July 2006 and within the prescribed 28 day period. That claim is not the subject of any dispute and it is not contended by any party that the notice given was outside the relevant period. A complicating feature arises in that on 30 June 2006 within the 28 day period, a nolle prosequi was entered in respect of the indictment presented on 30 June 2005.

1. It was contended on behalf of the Attorney-General that the entering of a nolle prosequi is a different procedure from the discontinuation of proceedings pursuant to s 281. A discontinuation under s 281, it is said, operates automatically by virtue of statute and is to be contrasted with a nolle prosequi, being a decision not to proceed further on an indictment (or charge contained therein) pending before the court. The Attorney-General’s submission therefore was that the finding of unsoundness on 29 May 2006 did not of itself result in the proceedings being finally disposed of as of that date, given the terms of s 281(2) and s 311 conferring the right of election to be exercised in a 28 day period. Since the proceedings upon the indictment were not finally disposed of as at 30 June 2006, s 563 of the Criminal Code1899 (Qld) operated to permit a nolle prosequi to be entered upon the indictment given that it was still properly characterised as one that was “then pending” in the Court. In support of this submission reliance was placed on R v Ferguson; Ex parte A-G [1991] 1 Qd R 35.

1. It was also argued on behalf of the Attorney-General that upon an election being exercised, s 312 continued to apply, but that where a nolle prosequi had been entered, the content of the expression “continued according to law” was that the proceedings were, subject to s 281(1)(b), treated identically to any other case where a nolle prosequi has been entered. Ordinarily, another indictment could be, but did not have to be, presented. However, in the present case it was submitted that s 281(1)(b) prohibited any further proceedings against ERS for the acts the subject of the alleged offence. This precluded any new indictment being presented against ERS, irrespective of whether he wished to be prosecuted or not. It was thus said that there was no mechanism under the Act to compel any particular further step to be taken by the Attorney-General or the Office of the Director of Public Prosecutions in the circumstances of the present case. However, it was also submitted that s 281 had the effect that the forensic order made prior to the nolle prosequi being entered remained in force.

1. The Director’s submission was that where an election to go to trial was made, the obligation on the Attorney-General under s 312 to ensure that the proceedings “are continued according to law” is not to be understood as an obligation to ensure that the proceedings necessarily must continue to a trial. A nolle prosequi could be entered after or even before the election and was not precluded by any provision of the Act. Nevertheless, Counsel for the Director submitted that where a nolle prosequi was entered any forensic order made would cease to have effect as there could be no legislative basis in those circumstances for the continuation of the forensic order.

The effect of s 281, Part 8 and the entering of a nolle prosequi prior to the election

1. Ordinarily, upon the exercise of an election under s 311 the proceedings may be expected to continue with the question of guilt being determined by a jury. However, there is nothing in the Act which precludes the decision to enter a nolle prosequi either before or after the expiry of the 28 day period in s 311.

1. In the present case, a nolle prosequi was entered on 30 June 2006, before the election to go to trial was made. I am unable to see any impediment to the exercise of the power to enter a nolle prosequi before the expiry of the stipulated period in which to make an election, as occurred in the present case. By virtue of s 281 the statutory discontinuance of the proceedings does not have effect immediately upon a finding of unsoundness of mind but only upon the election period having expired with no election having been made. I therefore accept that, since the proceedings were not discontinued as of the date of the determination of the Court on 29 May 2006, but remained pending as at 30 June 2006, a nolle prosequi was able to be entered pursuant to s 563 of the Criminal Code. 

1. The question remains however as to the status of the forensic order upon the nolle prosequi being entered in the circumstances of the present case. There can be no controversy that where a finding of unsoundness is made under s 267 and no election is made by the defendant under s 311, the legislative framework of the Act provides for the forensic order to remain in force until revoked by the Mental Health Review Tribunal.

1. However, where an election is made, the forensic order continues in force by s 313 until “a decision is made on the proceedings”.  A jury’s verdict is clearly such a decision.  Likewise, a decision not to proceed upon an indictment and to discontinue proceedings, notwithstanding the election, also constitutes a “decision” made on the proceedings, so that the forensic order would cease to have effect.   This conclusion is supported by the Explanatory Notes to the Mental Health Bill 2000 which provide:

“Clause 313 provides that a forensic order for the patient continues until the matter is finally decided, for example, a jury acquits the person, or the person is sentenced. A decision to discontinue prosecution for the offence will be a final decision.” (emphasis added)

1. In this regard, I accept the submission made on behalf of the Director that the words “are continued according to law” in s 312 are to be given their ordinary technical meaning, and are not to be read as requiring the Attorney-General to ensure the defendant stands trial. Nothing in Part 8 therefore precludes the entry of a nolle prosequi after an election is made by a defendant. Nor can s 312 be construed as requiring a further indictment to be presented in such a case.

1. As mentioned, the decision to discontinue proceedings by the entry of a nolle prosequi after an election to go to trial is “a decision made on the proceedings” so that the forensic order would thereupon cease to have effect. It cannot have been intended by the legislature that a different result would follow in respect of a nolle prosequi entered before an election is made and I do not construe anything in s 281 as leading to a different conclusion.

1. It is clear from the regime established by the Act that a forensic order made by this Court must be grounded on a decision of the Mental Health Court as to unsoundness of mind or unfitness for trial in respect of pending charges which have been referred to it: s 288. The imposition of a forensic order by this Court is thus premised on the reference to it of charges which are pending, and in the discontinuance of such charges the essential underpinning for the making of a forensic order ceases.

1. In the circumstances of this case, I do not consider that the forensic order was able as a matter of law to be confirmed.  I allow the appeal and set aside the decision of the Mental Health Review Tribunal.