Re GGH
[2002] QMHC 18
•21 October 2002
MENTAL HEALTH COURT
CITATION: | Re GGH [2002] QMHC 018 |
PARTIES: | REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF GGH |
PROCEEDING NO: | 0099/2002 |
DELIVERED ON: | 21 October 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 October 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS | Dr D A Grant Dr J F Wood |
FINDINGS AND ORDERS: | 1. The application to withdraw the reference is refused; 2. There is reasonable doubt that the defendant committed the offence of murder, that doubt not existing as a consequence of his mental condition; 3. The defendant is fit for trial; 4. Order that the proceedings against the defendant for murder be continued according to law. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder – where defendant has cultural, literacy and language difficulties – whether defendant is fit for trial – where there has been an application to withdraw the reference – where refusal of the application to withdraw the reference would cause the Mental Health Court to be functus officio and therefore prevent a further reference with respect to soundness of mind – where reasonable doubt whether the defendant committed the offence remains if the reference is withdrawn or not – where there are disputes of fact, and possibility of self defence, in the criminal trial – whether withdrawal of the reference in the interests of justice Mental Health Act 2000 (Qld), s 261(1)(b), s 263(2) Re P, Mental Health Tribunal, 20 June 1989, unreported, referred to |
COUNSEL: | B Devereaux for the defendant J Tate for the Director of Mental Health |
SOLICITORS: | Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health |
WILSON J: GGH is charged with murder on 1 March 2000.
He is an Ethiopian, who cannot read or write in any language. He has never been to school, and in any legal proceedings concerning the defendant there will clearly be issues of a cultural nature which will have to be very carefully and sensitively considered.
With respect to the criminal proceedings, they have reached the committal stage; that is, they have reached the stage of proceedings in the Magistrates Court. The proceedings in the Magistrates Court have not been finished, because questions arose about the defendant’s fitness to take part.
The Director of Public Prosecutions referred the matter of the defendant’s mental condition to the Mental Health Court.
Reports have been obtained from three psychiatrists, Dr Young, Dr Fama and Dr Varghese. They are mixed reports.
The defendant is not subject to an involuntary treatment order or a forensic order. His legal representative has made an application to withdraw the reference, pursuant to section 261(1)(b) of the Mental Health Act 2000 (Qld). The application is technically competent.
Pursuant to section 263(2), the Court must not refuse the application, unless withdrawal of the reference is contrary to the interests of justice.
It seems clear on the material before the Court that there are disputes of fact and that self defence is likely to be a live issue in a criminal trial. Mr Devereaux, who represented the defendant, urged the Court to allow the reference to be withdrawn, because if it were not withdrawn, but the Court dealt with it on the basis that there is a dispute of fact and accordingly ordered the proceedings to be continued according to law, the Court would be functus officio and there could be no further reference with respect to soundness of mind. He relied on the decision of Justice Ryan in Re P, Mental Health Tribunal, 20 June 1989, unreported.
Mr Tate for the Director of Mental Health submitted that the better course would be to allow the reference to be withdrawn, because this would cause no prejudice to the patient.
In my view, the reasonable doubt whether the defendant committed the offence will remain whether the reference is withdrawn or not. It would, in practical terms, defeat any endeavour to raise a defence by way of a finding by this Court of unsoundness of mind.
In the circumstances, I cannot see that the interests of justice would be served by the withdrawal of the reference. Indeed, it seems to me that in all the circumstances, it would be contrary to the interests of justice to allow it to be withdrawn.
I refuse the application to withdraw the reference.
I am satisfied that there is reasonable doubt the defendant committed the offence and that that doubt does not exist as a consequence of his mental condition. I find that he is fit for trial. I order that proceedings against him for the offence be continued according to law.
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