Re Gunner - [2012] QMHC 25

MENTAL HEALTH COURT

CITATION:

Re Gunner [2012] QMHC 25

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF LANCE DOUGLAS GUNNER

PROCEEDING:

No 0055 of 2011

DELIVERED ON:

2 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2012

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J M Lawrence

FINDINGS AND ORDER:

(1) There is a reasonable doubt, within the meaning of section 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offences;

(2)The defendant is not fit for trial, and the unfitness is of a permanent nature;

(3)The defendant be detained pursuant to a forensic order to the Logan Beaudesert Authorised Mental Health Service;

(4)Limited community treatment be approved at the discretion of the authorised psychiatrist on the conditions set out in the draft proffered by the Director of Mental Health, subject to:

(a)condition 4 reading that the patient not initiate contact, either directly or indirectly, with the complainants;

(b) a further condition, number 7, being inserted to the following effect:that any person engaged to provide care and/or treatment to the patient be advised of the reported history of inappropriate sexual behaviour.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is accused of rape and sexual assault – where the defendant denies the allegations – where there is a clear dispute of fact in relation to whether these offences occurred – where the defendant has dementia – where material indicates his condition is continuing to deteriorate – where the defendant has significant difficulties in communicating with people – where the defendant has significant deficits in terms of the retention of information and his ability to put together information in a meaningful way – where there is conflicting expert psychiatric opinion on whether the defendant is fit for trial – whether the defendant is fit for trial – whether any unfitness is of a permanent nature

MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where the defendant is accused of rape and sexual assault – where the defendant denies the allegations – where there is a clear dispute of fact in relation to whether these offences occurred – where the defendant has dementia – where material indicates his condition is continuing to deteriorate – where the defendant has significant difficulties in communicating with people – where the defendant has significant deficits in terms of the retention of information and his ability to put together information in a meaningful way – where there is conflicting expert psychiatric opinion on whether the defendant is fit for trial – whether the defendant is fit for trial – whether any unfitness is of a permanent nature

MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – whether there is a need for a forensic order

COUNSEL:

Catherine Morgan for the defendant
John Tate for the Director of Mental Health

Sal Vasta for the Director of Public Prosecutions (Qld)
Simon Burgess for the Director of Forensic Disability

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
Director of Forensic Disability (Qld)

BODDICE J: By reference dated 7 September 2011, the legal representatives for Lance Douglas Gunner referred to this Court his mental condition in relation to two offences alleged to have been committed in May and July 2009.

The first offence is that of rape. The second offence is that of sexual assault. The alleged offences were said to have occurred in circumstances where the female complainants were providing care to the defendant.

During the course of providing that care, it is alleged the defendant forced each of them to engage in sexually related conduct. On one occasion, that is the rape, he used his heavy electric wheelchair to pin the carer in a position so she was unable to withdraw herself from the position and avoid the alleged rape.

The defendant denies the allegations. There is material which indicates there are a number of bases upon which the defendant would seek to challenge those charges.

The Court has the benefit of reports from Dr Voita and Dr Kovacevic, together with an assessment undertaken by Maureen Field. That material indicates there is a clear dispute of fact in relation to whether these offences occurred. That arises from the clear denials of the defendant in respect of the offending conduct.

Having regard to those denials, and the opinions expressed that the dispute does not arise as a result of any mental illness, there is a reasonable doubt as to whether the defendant committed either of the charges the subject of the reference. This Court can make no finding in relation to unsoundness of mind.

The issue the Court has to consider is whether the defendant is unfit for trial, and whether any unfitness is of a permanent nature. Dr Voita’s opinion is that the defendant is unfit for trial, and that unfitness is permanent.

Dr Kovacevic expresses concerns in relation to the defendant's ability to understand and participate in a trial, but also expresses concerns that a finding of unfitness is an unsatisfactory outcome to charges where there is a denial by the defendant.

In his report, Dr Kovacevic opined that, with significant modifications to the trial process, the defendant may be able to understand the processes and the evidence given, and be able to comprehend, in a sufficient way, to give meaningful instructions in respect thereto.

In evidence, however, Dr Kovacevic accepted the defendant would have considerable difficulty in dealing with the process of cross-examination if he were to give evidence, and have considerable difficulty in being able to make a fully informed decision as to whether he ought to give evidence in the circumstances.

Whilst the offences are only two offences, the evidence relied upon by the prosecution includes similar fact evidence involving a number of other carers. Trials involving similar fact evidence are generally complex trials, regardless of the mental capacities of a defendant. They would be particularly complex for the defendant.

The defendant suffered a significant head injury when he was 25 years of age. This severe head injury left him with significant deficits, including deficits in the frontal lobe region. As a consequence of his acquired brain injury, he has developed dementia.

Recent material indicates his condition is continuing to deteriorate. The defendant has significant difficulties in communicating with people; he requires communication aids. Those aids, in themselves, require a degree of interpretation by his carers, and those who are assisting him to communicate.

Dr Voita gave evidence that it was almost impossible to communicate with the defendant in her interviews, although that was largely because of his extremely distressed state.

Dr Kovacevic gave evidence that, whilst there was a level of communication, it was not a level of communication between Dr Kovacevic and the defendant. It was communication facilitated by a carer who was, in Dr Kovacevic’s opinion, well-versed in understanding how the defendant communicates.

The immediate difficulty which arises is that it would not be appropriate in any trial to have a person who is well-known to the defendant as the translator of his evidence. There would be a need, as in any translation, for an independent person to undertake the translation. That would immediately take away the familiarity with the defendant that is so important, on Dr Kovacevic’s evidence, in order to understand his level of communication. That immediately gives rise to a problem in terms of the ability for any trial to be fair.

In addition to that, the medical evidence is that the defendant’s significant cognitive defects, as a consequence of the acquired brain injury, mean the defendant has significant deficits in terms of the retention of information and his ability to put together information in a meaningful way. This immediately will impact on his ability to give instructions. The ability to give instructions is essential in any trial. It is particularly important in a trial such as this where there will be reliance upon similar fact evidence.

I am satisfied, having heard Dr Voita and Dr Kovacevic, that the defendant does not have a meaningful ability to be able to compute the evidence as it unfolds, consider its consequences, or provide meaningful instructions in relation thereto.

Whilst it might be possible, as Dr Kovacevic says, to have many breaks in the process of a trial to allow for instructions to be given, I am satisfied any instructions given would not be instructions in the form which would allow for a fair trial.

I am satisfied the defendant does not have the capacity to be able to consider the consequences of the evidence that is given, and to be able to give reasons as to why something is not correct. In a trial such as this, that is vital.

I am satisfied the defendant could not receive a fair trial, no matter what variations were undertaken by the Court.

I accept that such a finding is unsatisfactory, in one sense, for the defendant because he does not have the ability to clear his name. It is also very unsatisfactory for the complainants, who do not have the ability to have these matters taken to a determination by a jury. However, our system requires any trial to be a fair trial. In the defendant's case, that cannot be achieved.

That conclusion is consistent with the advice of the assisting psychiatrists, Dr McVie and Dr Lawrence. Both advise I ought to prefer the opinion expressed by Dr Voita that the defendant is unfit for trial, and that that unfitness is permanent.

The next issue which must be considered is whether there is a need for a forensic order. The defendant’s primary difficulties arise from his cognitive deficits as a consequence of the acquired brain injury. In those circumstances, it has been submitted there is no need for a forensic order because nothing would be usefully achieved by it. I do not agree with that submission.

The defendant presents a significant risk to members of the public who are providing services whilst gainfully employed in the capacity of a carer. There is, in those circumstances, a benefit in a forensic order being imposed. It may well be that that forensic order can be of such a nature that there is not a need for as regular contact as may otherwise be the case. But it will ensure there is monitoring of the defendant, and overall supervision of him. That is essential if there is to be a protection of the public.

In coming to that conclusion I have found the advice of the assisting psychiatrists particularly helpful. Both advise that the defendant's condition would benefit from some monitoring and, perhaps, some further treatment.

It is necessary to consider whether, in the circumstances, the forensic order should be a Mental Health Court Disability Order. Having regard to the evidence, I am satisfied the correct forensic order is a Mental Health Court Disability Order.

Once that order is made, it is necessary to determine whether the defendant should be detained at the Forensic Disability Service, or an Authorised Mental Health Service. There is no evidence before me that the Forensic Disability Service has the requisite capacity to manage the defendant in the circumstances. In those circumstances, an order cannot be made detaining the defendant to the Forensic Disability Service.

The Director of Mental Health has proffered a forensic order, should such a finding be made, which requires the defendant to be detained at the Logan Beaudesert Authorised Mental Health Service. That order also authorises limited community treatment.

The limited community treatment is subject to a number of conditions. Condition 4 relates to the driving of a motor vehicle. Having regard to the defendant's condition, that is an unnecessary condition.

However, two further conditions are necessary. One relates to the defendant not initiating contact with either complainant in this matter. The second relates to the need for any person providing care and/or treatment to the defendant to be appraised of the past reported history of inappropriate sexual behaviour.

I order:

(1) There is a reasonable doubt, within the meaning of section 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offences;

(2) The defendant is not fit for trial, and the unfitness is of a permanent nature;

(3) The defendant be detained pursuant to a forensic order to the Logan Beaudesert Authorised Mental Health Service;

(4) Limited community treatment be approved at the discretion of the authorised psychiatrist, on the conditions set out in the draft proffered by the Director of Mental Health, subject to:

(a) Condition 4 reading that “the patient not initiate contact, either directly or indirectly, with [the complainants]”;

(b) a further condition, number 7, being inserted to the following effect: “That any person engaged to provide care and/or treatment to the patient be advised of the reported history of inappropriate sexual behaviour.”

I order that a copy of the transcript and of the reports be provided to the treating team, to DCCS, and to the parties.

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Re Gunner [2012] QMHC 25

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CITATION:	Re Gunner [2012] QMHC 25
PARTIES:	REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF LANCE DOUGLAS GUNNER
PROCEEDING:	No 0055 of 2011
DELIVERED ON:	2 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2012
JUDGE:	Boddice J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr J M Lawrence
FINDINGS AND ORDER:	(1) There is a reasonable doubt, within the meaning of section 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offences; (2)The defendant is not fit for trial, and the unfitness is of a permanent nature; (3)The defendant be detained pursuant to a forensic order to the Logan Beaudesert Authorised Mental Health Service; (4)Limited community treatment be approved at the discretion of the authorised psychiatrist on the conditions set out in the draft proffered by the Director of Mental Health, subject to: (a)condition 4 reading that the patient not initiate contact, either directly or indirectly, with the complainants; (b) a further condition, number 7, being inserted to the following effect:that any person engaged to provide care and/or treatment to the patient be advised of the reported history of inappropriate sexual behaviour.
CATCHWORDS:	MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is accused of rape and sexual assault – where the defendant denies the allegations – where there is a clear dispute of fact in relation to whether these offences occurred – where the defendant has dementia – where material indicates his condition is continuing to deteriorate – where the defendant has significant difficulties in communicating with people – where the defendant has significant deficits in terms of the retention of information and his ability to put together information in a meaningful way – where there is conflicting expert psychiatric opinion on whether the defendant is fit for trial – whether the defendant is fit for trial – whether any unfitness is of a permanent nature MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where the defendant is accused of rape and sexual assault – where the defendant denies the allegations – where there is a clear dispute of fact in relation to whether these offences occurred – where the defendant has dementia – where material indicates his condition is continuing to deteriorate – where the defendant has significant difficulties in communicating with people – where the defendant has significant deficits in terms of the retention of information and his ability to put together information in a meaningful way – where there is conflicting expert psychiatric opinion on whether the defendant is fit for trial – whether the defendant is fit for trial – whether any unfitness is of a permanent nature MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – whether there is a need for a forensic order
COUNSEL:	Catherine Morgan for the defendant John Tate for the Director of Mental Health Sal Vasta for the Director of Public Prosecutions (Qld) Simon Burgess for the Director of Forensic Disability
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) Director of Forensic Disability (Qld)