Re KMM
[2002] QMHC 16
•2 September 2002
MENTAL HEALTH COURT
CITATION: | Re KMM [2002] QMHC 016 |
PARTIES: | REFERENCE BY THE DISTRICT COURT IN RESPECT OF KMM |
PROCEEDING NO: | 0156/2002 |
DELIVERED ON: | 2 September 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 May 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr D A Grant |
FINDINGS AND ORDERS: | The Court will hear evidence and receive submissions only on the defendant’s current fitness for trial |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with attempted murder or alternatively grievous bodily harm – where defendant’s mental condition at time of alleged offence referred to Mental Health Tribunal – where Mental Health Tribunal found defendant not suffering from unsoundness of mind and fit for trial – where defendant charged with lesser offences arising out of same facts and pleaded guilty – where sentencing judge referred matter of the defendant’s mental condition to the Mental Health Court – whether Mental Health Court has jurisdiction to determine reference Criminal Code 1899 (Qld), s 27 Re RBD [2002] QMHC 002, No 134 of 2002, 28 June 2002, referred to Re O, Mental Health Tribunal, 11 December 1992, unreported, followed |
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: KMM (aka KMR) suffers from epilepsy with a temporal lobe focus.
She was charged with attempted murder or alternatively doing grievous bodily harm on 12 October 2000. The matter of her mental condition was referred to the Mental Health Tribunal by the Director of Mental Health under s 28D of the Mental Health Act 1974 (Qld). On 26 February 2001 the Tribunal found pursuant to s 33(1) of that Act that she was not suffering from unsoundness of mind at the time the alleged offence was committed and that she was fit for trial. It ordered that proceedings be continued according to law against her in respect of the charges. The findings and order made by the Mental Health Tribunal are to be taken as decisions and an order made by the Mental Health Court: s 580(1) Mental Health Act 2000 (Qld).
An indictment was subsequently presented charging her with a lesser offence arising out of the same facts, namely unlawful wounding with intent to maim or disable or to do some grievous bodily harm. She was arraigned on that indictment before Wall DCJ in the District Court at Townsville on 7 December 2001, when she pleaded guilty. His Honour commenced to receive submissions on sentence, but adjourned the proceedings so that a presentence report could be obtained.
The sentence proceedings were resumed on 14 March 2002 when a presentence report prepared by a community correctional officer was placed before His Honour. Attached to it were various reports including a report by Professor Basil James, psychiatrist, dated 4 March 2002 and a report by Mr Robert J Zemaitis, psychologist, dated 11 February 2002. Professor James was of the opinion that it was very likely she was undergoing significant changes of brain activity at the time of the alleged offence and that she was not in control of her actions at the time. Further, he doubted that when he saw her (on 1 February 2002) she was capable of adequately instructing her counsel.
On 21 March 2002 Wall DCJ ordered that a plea of not guilty be entered and referred the matter of the defendant’s mental condition relating to the offence to the Mental Health Court. On 27 May 2002 the Mental Health Court heard argument on whether it has jurisdiction to decide the reference.
The Mental Health Court’s jurisdiction is defined in s 383 of the Mental Health Act 2000 as follows –
“Jurisdiction
(1) The Mental Health Court has the following jurisdiction -
(a) deciding appeals against decisions of the tribunal*;
* This is a reference to the Mental Health Review Tribunal established under s 436 of the current Act, not the Mental Health Tribunal established under the repealed legislation.
(b) deciding references of the mental condition of persons;
(c) investigating the detention of defendants in authorised mental health services.
[ … ]
(4) The court’s jurisdiction is not limited, by implication, by a provision of this or another Act.”
On the hearing of a reference the Mental Health Court must decide whether the person was of unsound mind when the alleged offence was committed, and if it decides that the person was not of unsound mind, whether he or she is fit for trial: ss 267, 270 Mental Health Act 2000.
References may be made by –
(i) the Supreme or District Court under s 62;
(ii)the Director of Mental Health under s 240 (where an involuntary defendant is charged with an indictable offence);
(iii)the Attorney-General under s 247 (where an involuntary defendant’s mental condition relating to an indictable offence has been referred to him by the Director of Mental Health under s 240);
(iv)the person or the person’s legal representative, the Attorney-General, the Director of Public Prosecutions or (if the person is receiving treatment for mental illness) the Director of Mental Health under s 257 (where there is reasonable cause to believe a person alleged to have committed an indictable offence is mentally ill or was so when the alleged offence was committed or has an intellectual disability).
Wall DCJ referred the matter of the defendant’s mental condition to the Mental Health Court under s 62 of the current Act. Sections 61 and 62 provide -
“61 Application of div 2
This division applies if -
(a)at the trial of a person charged with an indictable offence, the person pleads guilty and it is alleged or appears the person is mentally ill or was, or may have been, mentally ill when the alleged offence was committed; or
(b)on the appearance for sentence of a person who has pleaded guilty to a charge of an indictable offence before a court and has been committed by the court for sentence, it is alleged or appears the person is mentally ill, or was, or may have been, mentally ill when the alleged offence was committed.
62 Supreme or District Court may order plea of not guilty
(1) The Supreme or District Court before which the person appears may order a plea of not guilty be entered for the person for -
(a) the indictable offence the person is charged with; and
(b) [ … ]
(2) On the making of the order, the court must -
(a) adjourn the trial; and
(b)refer the matter of the person’s mental condition relating to the offence to the Mental Health Court; and
(c)remand the person in custody or grant the person bail under the Bail Act 1980.
(3) [ … ].”
Under the repealed legislation, a decision of the Mental Health Tribunal on a reference into a person’s mental condition was final and conclusive, subject to a right (in the person or the Attorney-General) to appeal to the Court of Appeal (Mental Health Act 1974 s 43A) and subject to the right of the person to proceed to trial notwithstanding a finding of unsoundness of mind (s 43C). The current legislation does not contain any express provision that the decision of the Mental Health Court on a reference is final and conclusive, but that this is so is clear from the consequences of such a decision. If it finds the person was of unsound mind, or that he or she is permanently unfit for trial, proceedings against him or her for the offence are discontinued and further proceedings must not be taken for the act or omission constituting the offence (ss 281, 283). If it finds him or her unfit for trial but not permanently so, proceedings for the offence are stayed until the Mental Health Review Tribunal decides, on a review, that he or she is fit for trial (s 280). The current Act affords rights of appeal and a right in the person to proceed to trial similar to those in the repealed legislation (ss 334, 310).
The issue of unsoundness of mind is fixed in time at the commission of the alleged offence. Fitness for trial, on the other hand, is an ongoing issue: a person’s mental condition may alter with corresponding alteration in his or her fitness for trial.
This Court has previously held that there is no jurisdictional impediment to its determining a fresh reference in relation to fitness for trial: Re RBD [2002] QMHC 002, No 134 of 2002, 28 June 2002. I respectfully adopt the observation of Derrington J in Re O, Mental Health Tribunal, 11 December 1992, unreported, that the undertaking of a further reference with respect to fitness for trial is a continuation of the proceedings according to law.
The real issue in the present case is whether this Court can decide a reference made under s 62 insofar as it relates to unsoundness of mind in the face of the earlier determination by the Mental Health Tribunal.
Under whichever of ss 62, 240, 247 or 257 a reference is made and by whomever it is made, it is a reference into the person’s mental condition in relation to the offence charged. And under whichever of those provisions the reference is made and by whomever it is made, the same consequences flow from the findings of the Court. In the defendant’s case, the Mental Health Tribunal determined that she was not suffering from unsoundness of mind at the time of the alleged offence. The question of her mental condition at the time of the alleged offence is res judicata, and this Court cannot proceed to decide the further reference made by Wall DCJ.
Section 62 is not a source of jurisdiction for this Court. Its jurisdiction is to be found in s 383. In a case such as the present where there has already been a determination of a person’s mental condition at the time of an alleged offence, the Mental Health Court must decline to deal with the reference under s 62 except in relation to current fitness for trial. It remains open to the person to bring the question of criminal responsibility before the jury by invoking s 27 of the Criminal Code.
The mere fact that the offence charged in the indictment presented against the defendant was different from that with which she was originally charged cannot give this Court jurisdiction to entertain a further reference in relation to her soundness of mind at the time of the conduct the subject of the charges. It often happens that a person is charged with a certain indictable offence (in this case, attempted murder or alternatively doing grievous bodily harm), but that when the indictment is presented in the District Court or the Supreme Court, he or she is charged with a lesser offence arising out of the same conduct (in this case, unlawful wounding with intent to maim or disable or to do some grievous bodily harm). I accept the submission of counsel for the Director of Public Prosecutions (which was supported by counsel for the Director of Mental Health) that the relevant provisions of the Mental Health Act 2000 focus on the person’s mental condition in relation to certain conduct, and not on the precise criminal charge arising from that conduct. (For example, see s 268(3).)
The Court will hear evidence and receive submissions only on the defendant’s current fitness for trial.
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