Re Meek

[2006] QMHC 7

MENTAL HEALTH COURT

CITATION:

Re Meek [2006] QMHC 007

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF PETER LANCE MEEK

PROCEEDING:

No 208 of 2005

DELIVERED ON:

16 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2006

JUDGE:

ASSISTING PSYCHIATRISTS:

Philippides J

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

That the Mental Health Court has jurisdiction to hear the reference

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR CAPACITY – where defendant charged with arson – where defendant’s mental condition referred to the Mental Health Court – where Mental Health Court made no decision as to whether the defendant was of unsound mind at the time of the alleged arson being satisfied that there was a reasonable doubt as to the commission of that offence by the defendant  – where defendant found unfit for trial for trial but not permanently so – where defendant subsequently found fit for trial – where further reference made by defendant’s legal representative to Mental Health Court as to unsoundness of mind – whether Mental Health Court has jurisdiction to determine the further reference.

Mental Health Act 2000 (Qld), s 5, s 218, s 272, s 280, s 383

Re KMM [2002] QMHC 016
Re Ogle, Mental Health Tribunal, 11 December 1992
Re Purchase, Mental Health Tribunal, 20 June 1989

Re RBD [2002] QMHC 002
Re RJB [2002] QMHC 017

COUNSEL:

Ms S Ryan for the defendant
Mr J Tate for the Director of Mental Health
Mr C Cassidy 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. PHILIPPIDES J:  The matter before this Court is a second reference in respect of the defendant’s mental condition relating to the offence of arson alleged to have been committed on 25 November 2003.

1. That offence and a number of simple offences alleged to have been committed on 5 December 2003 were the subject of a previous reference to this Court which was heard on 14 September 2004.  Because there was a dispute of facts by the defendant in respect of the arson charge, the Court made no determination as to whether the defendant was of unsound mind, finding instead that there was a reasonable doubt as to the commission of the offence not arising solely from his mental condition.  The Court determined that the defendant was unfit for trial, but not permanently so, and made a forensic order and approved limited community treatment.  As to the simple offences, the Court found that the defendant was of unsound mind. 

1. In respect of the arson charge, the defendant subsequently was found fit for trial by the Mental Health Review Tribunal and proceedings were continued with a committal hearing being held on 2 August 2005.  Thereafter the defendant gave instructions to his legal representatives that he no longer disputed the facts of the alleged arson.  On 16 September 2005, a second reference was made by the defendant’s legal representative in respect of that offence.

1. It is clear that where the Court has made a decision that a defendant was not of unsound mind at the time of an alleged offence there are jurisdictional impediments to the Court hearing a fresh reference as to unsoundness of mind because the matter is res judicata (Re KMM [2002] QMHC 016; Re RJB [2002] QMHC 017). By contrast, it has been held that since the matter of a person’s fitness for trial is an ongoing issue, not one fixed in time, there is no jurisdictional impediment to the Court determining a fresh application in relation to fitness for trial (Re RBD [2002] QMHC 002). Moreover, it has been held that the undertaking of a further reference with respect to fitness for trial is a continuation of the proceedings according to law (Re Ogle, Mental Health Tribunal, 11 December 1992).

1. This case is not within the category where a second reference is precluded in respect of the issue of unsoundness of mind because the Court has already determined the matter so that res judicata arises.  Rather, the question that arises in the present case is whether the Court may consider a fresh reference with respect to that issue, where the Court has not previously determined it.

1. The decision of Re Purchase, Mental Health Tribunal, 20 June 1989, suggests that the Court lacks jurisdiction to consider a second reference in circumstances such as the present.  In that case, which concerned the previous legislative scheme, the Mental Health Tribunal held that it was not competent to hear a second reference in respect of charges which had been the subject of a previous reference.  On the hearing of the first reference the Tribunal had refrained from deciding the issue of unsoundness of mind because it was of the opinion that the facts relating to the alleged offences were so in dispute that it would be unsafe to make a decision.  The Tribunal found the defendant fit for trial and ordered that “the proceedings be continued according to law against the defendant in respect of the charges”.  On the hearing of the second reference the Tribunal considered that that order having been made, the Tribunal was functis officio.  Additionally, it was determined that proceedings by way of a fresh reference were not proceedings according to law in respect of the charge, but were proceedings of a different character, that is, in respect of a person’s mental condition.

1. It is to be observed that in the present case, the Court’s finding on 14 September 2004 of temporary unfitness for trial had the consequence that the proceedings were stayed under s 280 of the Mental Health Act 2000 (Qld) and no order was made by the Court that the proceedings be continued according to law (as would have been the case upon a finding of fitness for trial: see s 272). But in my view nothing turns on that. By operation of s 218, the stayed proceedings continued according to law once the defendant was found fit for trial by the Mental Health Review Tribunal. On that basis the present case is not dissimilar to that considered in Re Purchase.

1. I am however unable to come to the same conclusion as that of the Tribunal in Re Purchase. In my view the fact that as a result of a finding in respect of fitness for trial, proceedings are continued according to law (either by the Court’s order under s 272 or by virtue of s 218 as a consequence of the Mental Health Review Tribunal’s decision) does not preclude the Court determining a second reference in respect of unsoundness of mind, where that issue has not previously been determined by it.

1. In cases such as the present, the issue of unsoundness of mind is an issue that remains to be determined according to law in the proceedings and one not yet the subject of a decision by the Court. In those circumstances, a second reference seeking a decision as to that issue, although it may result in the proceedings being discontinued, is nevertheless one which is part of the continuation of the proceedings according to law. A contrary view requires the words “proceedings … for the offence be continued according to law” to be construed as meaning that after a reference is considered by the Court the proceedings can only “continue” in the appropriate criminal court. There is nothing in the Act which necessitates such a construction and indeed such an approach would not promote the purpose of the Act, which in part is achieved by providing a specialist Court to decide, among other things, the state of mind of persons charged with criminal offences (s 5). Nor is there anything in s 383 of the Act which confines the jurisdiction of the Court in respect of references so as to preclude a second reference where no decision has already been made by the Court as to soundness of mind.

1. Accordingly, I find that the Court has jurisdiction to hear the reference.