Re Graham

[2005] QMHC 22

MENTAL HEALTH COURT

CITATION:

Re Graham [2005] QMHC 022

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF RODNEY GRAHAM

PROCEEDING NO:

215 of 2004

DELIVERED ON:

5 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

At the time the offence was committed the defendant was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld)

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with assault occasioning bodily harm – where uncontested evidence that defendant was deprived of the capacity to understand what he was doing and know it was wrong – whether defendant of unsound mind at the time the alleged offence occurred – whether defendant deprived of one or more of the capacities in s 27 of the Criminal Code – whether a forensic order should be made

Criminal Code (Qld), s 27
Guardianship and Administration Act 2000, s 75

Mental Health Act 2000 (Qld), schedule 2

COUNSEL:

Ms C Morgan for the defendant
Mr J Tate for the Director of Mental Health

Ms C Kelly 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  Mr Graham is charged with assault occasioning bodily harm on 14 July 2004.  The evidence is clear that he was deprived of the capacity to understand what he was doing and know it was wrong. I am satisfied that he was of unsound mind pursuant to the Mental Health Act 2000, schedule 2 at the time that offence was allegedly committed.

1. The more difficult question is whether a forensic order should be made.  Mr Graham is presently in a dual diagnosis unit at The Park- Centre for Mental Health, with some plans to release him into supervised accommodation under the auspices of Disability Services Queensland (DSQ).

1. The basis of his being maintained at The Park- Centre for Mental Health seems to be the Guardianship and Administration Act 2000. It is not obvious to me at the moment that the power to restrain him goes any further than what is given in s 75 of that Act, which is the ability to use force for health care. I am not entirely satisfied that that means that there could be a restraint of Mr Graham for other purposes. On the other hand, in practical terms, he seems well maintained there. There is no concern, it seems, about his departure and it seems there is a very structured program anticipated through DSQ. It seems, if anything, that that may be impeded if the forensic order were to be made.

1. Taking into account the fact that there seems no real risk of his being at large and injuring persons; that, if anything, the DSQ program is probably better for his condition and will make it less likely that he offends in the way he has been; taking into account the fact the offence was not of grave seriousness and taking into account his own needs, it seems to me a case in which I should not make a forensic order and I will not make one.