Re NGW

[2005] QMHC 1

MENTAL HEALTH COURT

CITATION: 

Re NGW [2005] QMHC 001

PARTIES:

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

PROCEEDING NO:

94 of 2004

DELIVERED ON:

18 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr J F Wood
Dr D A Grant

ORDER:

1.  That the defendant was not of unsound mind at the time of any of the alleged offences,

2.  That the defendant is unfit for trial, and

3. That the unfitness is of a permanent nature.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with indecent dealing and carnal knowledge offences – where the offences were committed between 1966 and 1969 – where the defendant was first charged in 2002 – where Crown case strong – where the defendant is now 84 and suffering from progressive dementia – where defendant is unfit for trial and permanently so

Mental Health Act 2000 (Qld), ss 268, 269

Kesavarajah v. R (1994) 181 CLR 230, cited
R v. M [2002] QCA 464, applied
R v. Presser [1958] VR 45, applied

COUNSEL:

A Glynn for the defendant
J Tate for the Director of Mental Health
S P Vasta for the Director of Public Prosecutions

SOLICITORS:

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

1. Wilson J:  NGW is facing a number of charges, (1) that on a date unknown between 30 November 1966 and 1st March 1967 he unlawfully and indecently dealt with a boy under the age of 14, (2) that on a date unknown between 28 February 1967 and 1 June 1967 he unlawfully and indecently dealt with the same boy being under the age of 16, (3) that on a date unknown between 31 August 1967 and 1 December 1967 he unlawfully and indecently dealt with the same boy who was under the age of 16, (4) that on a date unknown between 31 August 1967 and 1 December 1967 he had carnal knowledge of the same boy against the order of nature, (5) that on a date unknown between 28 February 1968 and 1 June 1968 he unlawfully and indecently dealt with the same boy who was under 16, (6) that on a date unknown between 31 August 1968 and 1 December 1968 he unlawfully and indecently dealt with the same boy who was under 16, (7) that on a date unknown between 31 October 1968 and 1 March 1969 he had carnal knowledge of the same boy against the order of nature. 

1. These are very serious charges.  The offending behaviour is alleged to have occurred in the late 1960s, but it was not until December 2002 that the defendant was charged with these offences.  The criminal proceedings have proceeded through the committal stage to the presentation of an indictment in the District Court.  Further prosecution of the proceedings has been stayed pending the determination of a reference to this Court made by the defendant's legal representatives in relation to his mental state at the time and his fitness for trial. 

1. On the material before the Court there is no dispute of fact within section 268 or 269 of the Mental Health Act. Further there is nothing before the Court upon which there could be a finding of unsoundness of mind at the time of any of the alleged offences. The issue before the Court is that of the defendant's fitness for trial.

1. The defendant is now aged 84.  About 10 years ago he suffered a stroke.  He is suffering from dementia of mixed type, both Alzheimer's and vascular.  There is a body of expert opinion before the Court which is all to the same effect, namely that he is not fit for trial, that his condition is a progressive one, and accordingly that there is no prospect of his becoming fit for trial.

1. The expression "fit for trial" is defined in the schedule to the Mental Health Act as, "fit to plead at the person's trial, and to instruct counsel, and endure the person's trial with serious adverse consequences to the person's mental condition unlikely". The question of fitness to plead and to instruct counsel is determined by reference to the tests in R v. Presser [1958] VR 45.

1. Those tests which I am about to set out were approved by the High Court in Kesavarajah v. R (1994) 181 CLR 230 at 243 and specifically with respect to the current Queensland mental health legislation by the Queensland Court of Appeal in R v. M [2002] QCA 464.

1. This is what the High Court said in Kesavarajah,

"In Reg v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice.  Those standards which are based on the well-known explanation by Alderson B to the jury in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135 require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge."

I am satisfied on the material before the Court that this defendant is now incapable of satisfying those tests. 

1. This is a most unfortunate case in that the Crown case is apparently a very strong one and the alleged behaviour of the defendant has had devastating effects upon the complainant.  A victim impact statement is before the Court and I have taken due cognisance of its contents.  Nevertheless the conduct did occur more than 35 years ago and with the passage of time the defendant has become unfit for trial. 

1. It is a fundamental principle of our justice system that anyone charged with an offence is entitled to a fair trial, and if that person is unfit for trial there cannot be a fair trial.  Accordingly I have no option but to find the defendant unfit for trial and permanently so. 

1. So the orders of the Court will be (1) that the defendant was not of unsound mind at the time of any of the alleged offences, (2) that the defendant is unfit for trial, and

(3) that the unfitness is of a permanent nature. 

1. The outstanding question is whether the Court ought to make a forensic order.  There are three factors considered:  the seriousness of the offences (and I have already said how serious these offences were), the defendant's treatment needs, and the protection of the community. 

1. Having regard to the defendant's age and his frail mental and physical condition, there is very, very little risk of re-offending and so the protection of the community does not loom large.

1. He is presently living in a retirement village with his wife.  He is attended by his general practitioner.  His needs are not for psychiatric treatment.  They are for the supervision and care of a general practitioner and perhaps in time a geriatrician.

1. A forensic order is by its nature for detention in an authorised mental health service for involuntary treatment and care.  In the circumstances of this case, nothing would be achieved by the making of such an order and, accordingly, I expressly decline to make one.