Re Malt

[2009] QMHC 29

MENTAL HEALTH COURT

CITATION:

Re Malt [2009] QMHC 29

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF AARON JAMES MALT

PROCEEDING:

No 218 of 2008

DELIVERED ON:

9 March 2009 [Ex tempore]

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2009

JUDGE:

Dutney J

ASSISTING
 PSYCHIATRISTS:

Dr F Varghese
Dr E McVie

FINDINGS AND ORDER:

1.    I order that the charges proceed according to law but find that the defendant is presently unfit for trial and that such unfitness is of a temporary nature only. The matter will go before the Mental Health Review Tribunal in due course after the new treatment regime has been implemented and either at that stage it will become more apparent whether he has become fit for trial in the intervening period or, alternatively, that his unfitness may extend for a longer period than is presently anticipated.

2.    The defendant be detained in The Park High Security Program Authorised Mental Health Service.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two counts of attempted murder – where material dispute of fact in commission of offence and defendant’s version – whether or not the defendant is currently fit for trial – where there is differing opinion among treating psychiatrists

COUNSEL:

Mr J Briggs for the Defendant
Mr J Tate for the Director of Mental Health
Mr  S Vasta for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

1. DUTNEY J:  The defendant is charged with two counts of attempted murder allegedly committed on the 15th of November 2007.

1. There is a material dispute of fact in relation to the commission of the offence and the version to which the defendant currently adheres is one which affords him a defence.  Accordingly, it is not appropriate to consider the issue of unsoundness of mind in this particular case.  The live question is whether or not the defendant is currently fit for trial.

1. Three reports have been obtained, one from a Dr Tie who initially dealt with the defendant on his admission to The Park High Secure Inpatient Service, one from Dr Reddan who saw the defendant in January this year and one from Dr Morris who is his currently treating psychiatrist.

1. At the request of the assisting psychiatrists, Dr Morris gave evidence by telephone in these proceedings.  The concern which arose was the apparent incongruity of the defendant being a high secure patient at The Park and yet being fit for trial.

1. There is a difference of opinion between Dr Reddan and Dr Morris as to whether or not at the times they respectively saw the defendant he needed secure inpatient treatment; Dr Reddan being of a contrary view.  Dr Morris, however, says that the defendant presently requires high secure inpatient treatment, largely as a result of set of fixed delusional beliefs which have not responded to treatment during the period of hospitalisation and a further treatment regime is now proposed for him.  He has been in The Park since June of last year.

1. The difficulty arises because all three doctors say that the defendant is fit for trial at present.  The advice I have received is that the conclusion that he is fit for trial does not marry with the actual evidence upon which that conclusion is based.

1. Dr Morris in his oral evidence indicated that the delusional belief system under which the defendant is presently operating would infect his instructions to counsel and his understanding of the trial but notwithstanding he is capable of instructing counsel and of challenging jurors and so on.

1. It seems to me, having listened to the advice that I have received, that an ability to challenge jurors and give instructions which is infected by a delusional belief that both he and those around him are at risk from the triad is an artificial form of instruction and an artificial right of challenging jurors.  If counsel cannot be given rational instructions, then the fact that the some instructions can be given does not seem to me to render the defendant presently fit for trial.

1. The options with which I was faced seem to be either adjourning the matter and obtaining a further report or finding that the defendant is presently unfit for trial.

1. I am inclined to find that the defendant is presently unfit for trial, that unfitness being temporary.  The effect of that is that the matter will go before the Mental Health Review Tribunal in due course after the new treatment regime has been implemented and either at that stage it will become more apparent whether he has become fit for trial in the intervening period or, alternatively, that his unfitness may extend for a longer period than is presently anticipated.

1. Accordingly, I order that the charges proceed according to law but find that the defendant is presently unfit for trial and that such unfitness is of a temporary nature only.

1. The terms of the forensic order will be that the defendant be detained in The Park High Security Program Authorised Mental Health Service.