Re LGD

[2004] QMHC 8

MENTAL HEALTH COURT

CITATION:

Re LGD [2004] QMHC 008

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF LGD

PROCEEDING NO:

0217 of 2003

DELIVERED ON:

22 July 2004

DELIVERED AT:

Brisbane

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr D A Grant
Dr J F Wood

FINDINGS:

That the defendant is permanently unfit for trial.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant is charged with 10 counts of incest – where the alleged events occurred over 50 years ago – where the defendant suffers from vascular dementia and

R v Presser [1958] V.R.45

COUNSEL:

Q Cregan for the defendant
J Tate for the Director of Mental Health
P Feeney for the Director of Public Prosecutions

SOLICITORS:

Alex Nelson Lawyers for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions

1. WILSON J:  LGD has been charged with 10 counts of incest over various dates between 30 November 1948 and 1 March 1956.  The complainant is his younger sister.  She became pregnant to him, and had a child who was adopted. 

1. It is only in comparatively recent times that this matter has come to the attention of the police and the defendant has been charged.  That is not to underestimate the ongoing distress and trauma which these offences have no doubt caused to the complainant. 

1. However, many years have passed - more than 50 years.  The defendant was born on 14 September 1935, so that he is now aged more than 68.  Eleven years ago he had a very serious stroke; as a result he is suffering from vascular dementia. 

1. There is no evidence to suggest that at the times of the offences he was suffering from unsoundness of mind.  However, there is evidence which satisfies me that he is unfit for trial and that the unfitness is of a permanent nature.

1. A finding of unfitness for trial is not one made lightly, and certainly a finding of permanent unfitness is one that the Court takes very seriously.  The tests for fitness for trial are those contained in R v Presser [1958] V.R.45. They go to a defendant's ability to understand the nature of the charge, his ability to plead to the charge and to exercise the right of challenge, his ability to understand the nature of the proceedings, his ability to follow the course of the proceedings, his ability to understand the substantial effect of any evidence that may be given in support of the prosecution and his ability to make a defence or answer the charge.

1. Further, this Court must be satisfied that he could endure a trial without serious adverse consequences to his mental health being likely before it may find him fit for trial. 

1. Applying those tests to this case I am quite satisfied, as I have said, that he is unfit for trial, and permanently so.

1. He is being cared for by his wife, who is also of advanced years.  She has health problems and has had a pacemaker fitted. 

1. I have regard to the seriousness of the offences, but I cannot see that the protection of the community is a live issue.  The defendant is so disabled that further offending is quite unlikely.

1. His treatment needs would not, it seems to me, be advanced by his being detained in an authorised mental health service with or without limited community treatment.  They are being met by his general practitioner.  The needs that he has are more in the nature of aged care services than psychiatric services.    Accordingly, I do not make a forensic order. 

1. I authorise the release of the reports of Dr Kippax and Dr Fama to his treating general practitioner, Dr Maggie Mackay.  I also direct that a transcript of this morning's proceedings be prepared and that a copy of that be made available to Dr Mackay.