Re Musk

[2005] QMHC 53

MENTAL HEALTH COURT

CITATION:

Re Musk [2005] QMHC 53

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF DARCY HARTNETT MUSK

PROCEEDING NO:

No 0211 of 2004

DELIVERED ON:

17 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

The defendant was of unsound mind as defined in the Mental Health Act 2000 (Qld), Schedule 2, at the time of the alleged offences.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with possession of a dangerous drug and serious assault – where psychiatric opinion to the effect that the defendant was of unsound mind – whether the defendant, at the time of the alleged offences, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not to do the act pursuant to the Criminal Code, s 27 - whether the defendant was of unsound mind – whether a forensic order required

Mental Health Act 2000 (Qld), s 288(3), Schedule 2

COUNSEL:

S Ryan for the defendant
J Tate for the Director of Mental Health

S Vasta 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]      HOLMES J:  Mr Musk is charged with possession of a dangerous drug and serious assault on 23 June 2004.  There is a unanimity of psychiatric opinion to the effect that he was not of sound mind at the time those offences were allegedly committed.  Accordingly, I make the finding that he was of unsound mind within the meaning of the Mental Health Act 2000 , Schedule 2, at the time those offences were allegedly committed.

[2]      The more difficult question is as to whether a forensic order ought to be imposed.  It seems that Mr Musk's treatment had been managed satisfactorily on an Involuntary Treatment Order and it is clear that both Dr Fama who reported on 23 August 2005, and Dr Miles who reported on 30 August 2005, assumed that the Involuntary Treatment Order would remain in place.  It was, however, revoked; and another matter of minor concern is that Mr Musk has not appeared today as he was expected to do.

[3]      It is a balancing exercise.  It is clear that his condition continues to require management and medication.  On the other hand, the offences themselves were not of great seriousness and they do not suggest that the community needs protection from Mr Musk.  The one criterion which does tend towards the making of an order is that of his treatment needs. 

[4] On balance, I consider that a forensic order is not warranted. It would be obviously desirable that Mr Musk continue with the treatment he has been getting. But, having regard to the other factors prescribed by s 288(3), it does not seem to me that the situation as a whole calls for the making of a forensic order and I will make none.