Re Goltz

[2012] QMHC 17

MENTAL HEALTH COURT

CITATION:	Re Goltz  [2012] QMHC 17
PARTIES:	REFERENCE BY THE LEGAL REPRESENTATIVES  IN RESPECT OF GABRIEL GOLTZ
PROCEEDING NO:	21 of 2011
DELIVERED ON:	Ex tempore reasons 17 July 2012 Written reasons 14 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2012
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr J M Lawrence
FINDINGS AND ORDERS:	The reference to this Court is struck out.
COUNSEL:	H C Fong for the defendant J Tate for the Director of Mental Health S Burgess for the Director of Forensic Disability S P Vasta for the Director of Public Prosecutions
SOLICITORS:	LEGAL AID QUEENSLAND FOR THE DEFENDANT CROWN LAW FOR THE DIRECTOR OF MENTAL HEALTH DIRECTOR OF FORENSIC DISABILITY (QLD) DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

ANN LYONS J:

1. On 17 July 2012 I gave brief ex tempore reasons when this reference was struck out and indicated that I would provide written reasons in due course. These are those reasons.

1. This is a reference filed on 4 February 2011 by the legal representatives of Mr Gabriel Goltz. Mr Goltz is currently charged with 31 offences alleged to have occurred between May 2008 and February 2010. Most of those offences relate to offences of public nuisance as well as about wilful damage and trespass. Significantly, Mr Goltz is charged with one count of attempting to commit a rape on 26 September 2010 and two counts of sexual assault which are alleged to have been committed on 12 December 2009. Mr Goltz has been in custody at the Arthur Gorrie Correctional Centre since September 2010.

1. Reports have been prepared by Dr Michael Beech dated 26 November 2010, Dr Francis Dark dated 18 January 2012 and Dr Gregory O’Brien dated 10 January 2011. Each of the psychiatrists concludes that Mr Goltz does not have a mental illness or an intellectual disability and that he was not deprived of any of the relevant capacities.

1. Mr Goltz is 22 years of age and was discovered to be deaf at about the age of one. He grew up in a family which was not conversant in Auslan and he relies on gestures and diagrams. Dr Beech indicated that his communication and use of language throughout his childhood and adolescence was severely limited but that it was only in relatively recent times that the level of his communication problems has become known. It would appear that he only recently commenced formal instruction in signing.

1. Dr Francis Dark, who is expert in this area of disability, stated that:

“Without an adequate form of communication Mr Goltz’ social knowledge and social cognition is compromised. He also has been deprived of incidental learning that is taken for granted by a hearing world, for example lessons learnt during discussions at the dinner table or resolving disputes within families. Despite being intellectually capable, Mr Goltz has had to rely on erratic learning from people with some signing and modelling and observational learning. His ability to understand complex concepts or complex problem solving is severely compromised. He is particularly compromised in novel situations. (Competency in signing has been found to predict social cognition and functional outcome in Deaf)…

Mr Goltz has problems with tolerating frustration, and anger management with poor coping skills due to growing up and currently living in an environment in which communication is minimal. These problems are not solely due to Mr Goltz’ personality but also in response to his reduced capacity to communicate and understand the motives and behaviours of people around him. Mr Goltz has self harmed in the context of frustration and anger not secondary to mental illness.”[1]

[1]Report of Dr F Dark filed 27 January 2012, p3.

1. Dr Dark concludes that Mr Goltz is unlikely to ever be fluent in Auslan because he was not exposed to it prior to the age of six years. Dr Dark states that despite being intellectually capable Mr Goltz has had to rely on erratic learning from people with some signing and accordingly “he will always have a deficit in understanding complex, abstract information”.[2] Dr Dark does not consider that he is intellectually handicapped but rather he requires intensive disability support which should come from Deaf Services Queensland via funding from Disability Services Queensland. Dr Dark also considers that when he is reintegrated into the community, Mr Goltz would require 24-hour supervision and support. Accordingly, Mr Goltz’s limitations are physical limitations. Furthermore, the evidence indicates that a trial would not affect Mr Goltz’s mental condition although he will become angry and aggressive when fatigued.  

   [2]Ibid p4.

1. A preliminary legal issue has been referred to this Court and that is whether this Court has jurisdiction to determine Mr Goltz’s fitness for trial when there is no evidence to indicate that he has a mental illness or intellectual disability.

The provisions of the Mental Health Act 2000 (Qld)

1. Section 4 of the Mental Health Act 2000 (Qld) (the Act) provides that the purpose of the Act is to provide for the involuntary assessment and treatment and the protection of persons who have a mental illness and at the same time safeguarding those rights and freedoms and balancing those rights with the rights and freedoms of others.

1. Section 5 then provides that the purpose of the Act is to be achieved in a number of ways including by “establishing the Mental Health Court to, among other things, decide the state of mind of persons charged with criminal offences.”

1. Section 256 provides that references to the Mental Health Court are subject to the requirement that there is “reasonable cause to believe” a person alleged to have committed an indictable offence was either mentally ill when the alleged offence was committed or is currently mentally ill or has an intellectual disability which impacts on the issue of criminal responsibility or fitness for trial, as follows:

“256 Application of pt 4
This part applies if there is reasonable cause to believe a person alleged to have committed an indictable offence—

(a) is mentally ill or was mentally ill when the alleged offence was committed; or

(b) has an intellectual disability of a degree that issues of unsoundness of mind, diminished responsibility or fitness for trial should be considered by the Mental Health Court.”

1. Section 270 requires the Court to determine fitness for trial in limited circumstances, as follows:

“270 When Mental Health Court must decide fitness for trial

(1) The Mental Health Court must decide whether the person is fit for trial if—

(a) the Court decides the person was not of unsound mind; or

(b) under section 268 or 269, the Court must not decide whether the person was of unsound mind when the alleged offence was committed.

(2) Subsection (1) does not apply if, under section 268(4), proceedings against the person for the alleged offence are discontinued.”

1. The schedule of the Act contains the definition of “fit for trial”, as follows;

“fit for trial, for a person, means 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”.[3]

[3]Emphasis added.

1. Accordingly in my view, given the requirements of those sections, there has to be at least some prima facie evidence to establish the reasonable cause to believe there is either a mental illness or intellectual disability is in existence before the Court is required to determine the question of criminal responsibility or fitness for trial. 

1. In the present case there is no “reasonable cause to believe” Mr Goltz was or is currently suffering from a mental illness or an intellectual disability. Whilst Mr Goltz is profoundly deaf and has communication difficulties, the evidence is quite clear that he has no mental illness or intellectual disability. Mr Goltz is profoundly deaf; that is not a mental infirmity but a physical infirmity.

1. Accordingly there is no evidence that there is reasonable cause to believe that Mr Golz is or was ever suffering from a mental illness or intellectual disability such that a reference to this Court could be sustained. Accordingly I do not consider that the threshold test for a reference pursuant to s 256 has been met. When read together ss 256, 257 and 264 of the Act make it abundantly clear that the Mental Health Court is required to inquire as to a person’s mental condition in relation to an offence or in relation to their ability to plead. The Court does not have jurisdiction to enquire into a purely physical disability. In my view, the reference in the definition of “fit for trial” to mental condition and the fact that the Court has to inquire into a person’s mental condition in relation to an offence indicates that the issue of fitness for trial must be linked to the person’s mental condition either at the time of the offence or the time of the reference.

1. Furthermore in my view the Act makes it clear that the Mental Health Court only needs to determine the issue of ‘fitness for trial’ in certain circumstances as specified in s 270 and not generally.

1. Furthermore, the scheme of the Act is such that if there is a finding of ‘temporary’ unfitness for trial, s 288 (3) provides that the Court must make a Forensic Order such that the person is “detained for involuntary treatment or care” in either an Authorised Mental Health Service or a Forensic Disability Service. Such an order detaining a mentally well but physically impaired person to such a facility would be entirely inappropriate and in clear breach of internationally recognised human rights principles

1. The function of the Mental Health Court is quite distinct from the requirements in s 613 of the Criminal Code Act 1899 (Qld) (Criminal Code). As s 5 of the Act provides, the function of the Court is to “decide the state of mind of persons charged with criminal offences”.

1. Section 613 of the Criminal Code provides as follows:

“613 Want of understanding of accused person

(1)If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether the person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of 12 persons, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether the person is so capable or no.

(2)If the jury find that the accused person is capable of understanding the proceedings, the trial is to proceed as in other cases.

(3)If the jury find that the person is not so capable they are to say whether the person is so found by them for the reason that the accused person is of unsound mind or for some other reason which they shall specify, and the finding is to be recorded, and the Court may order the accused person to be discharged, or may order the person to be kept in custody in such place and in such manner as the Court thinks fit, until the person can be dealt with  according to law.

(4) A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence.”[4]

[4]Emphasis added.

1. It is clear that s 613 does not refer to a mental condition and it does not matter what form of infirmity there is which enlivens s 613. In my view, therefore, s 270 of the Act deals only with the mental infirmity aspects of the infirmity referred to in s 613 of the Criminal Code.

1. In terms of whether Mr Goltz is capable of understanding the criminal proceedings, Dr Dark, in her report, referred to his limited knowledge in this regard due to the communication difficulties which result from his profound deafness. Dr Dark indicated that when she saw him he did not understand the adversarial nature of Court or the basic concepts of the Court process. Dr Dark however considers that if his signing skills improve he can be given instruction and information in those areas. Dr Dark opined that Mr Goltz’s language and understanding would improve over time. Indeed in a report dated 10 April 2012, clinician Kirsty Lewis indicated that his skills in Auslan were, in fact, improving and he no longer needed a relay interpreter but was able to rely solely on an Auslan interpreter. He is receiving three hours of support each week from Deaf Services Queensland whilst in the Arthur Gorrie Correctional Centre and that support includes sessions not only about Auslan but relate also to the Court process.

1. I also note that Dr Dark’s view is that Mr Goltz’s skills could be improved with intensive training. Dr Dark has set out seven steps which could be implemented to ensure he has access to a fair trial:

“1. Effective interpretation. Use of multiple Level 3 NAARTI accredited interpreters. It is advised that interpreters change frequently (at least every 45 minutes). Use of Deaf relay interpreter i.e. a Deaf interpreter who shares the cultural experience and is able to draw on this perspective to aid communication.

2. Counsel table interpretation that can check interpretation and communication process in general, be attuned and calibrated to Gabe’s communication level and able to inform Gabe’s lawyer. It is advised that this interpreter serve in pre trial lawyer/barrister-client meetings and be aware of the vocabulary of the case and level of communication that will be required.

3. Videotaping of proceedings to review communication and act as a record of proceedings.

4. Questioning style will need to be altered to avoid tendency for low literacy Deaf to agree whether they understand or not. To optimise comprehension, it is best to ask the Deaf person to describe, for example, what he knows about the Court process.

5. Use of consecutive or relay interpreting especially when issues are technical or when dealing with abstractions. This will allow extra time to simplify and alter language to Gabe’s language level. The Judge and lawyers need to be vigilant of Gabe’s (and low literacy Deaf people’s) tendency to pretend to understand rather than alert counsel and Court when he is not following proceedings or questions.

6. The use of breaks to permit the use of role play and pictures to enhance understanding and to alert the lawyers to use simpler language.

7. Use of breaks that account for Gabe’s concentration span of a little over 60 minutes.”[5]

[5]Above n 1, p5.

1. Mr Goltz has been on remand since September 2012 and has not been brought to trial given the genuine concerns which have been raised about his fitness to plead. In that period an application for bail has not been able to be made given he had nowhere to reside and needed considerable support in the community. I note that the reports now indicate that the Adult Guardian has been appointed for personal decisions and that the Public Trustee has been appointed as his administrator. The Report from Disability and Community Care Services (DCCS) dated 10 April 2012 also indicates that, should Mr Goltz be released into the community in the future, DCCS would initiate the process to obtain supports to meet his disability needs. That report indicates that Mr Goltz would benefit from six to 14 hours per week of “in-home accommodation support”.[6]

   [6]Report of Disability and Community Care Services (Kirsty Lewis) dated 10 April 2012, p3.

1. Ultimately the question of whether Mr Goltz is fit to plead will be a question for the trial or sentencing judge based on assessments of his physical limitations, current at the time that decision needs to be made.

1. Accordingly the reference to this Court is struck out.