Re NHP

[2005] QMHC 51

MENTAL HEALTH COURT

CITATION:

Re NHP [2005] QMHC 51

PARTIES:

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

PROCEEDING NO:

0229 of 2004

DELIVERED ON:

18 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1.   The defendant was not of unsound mind as defined in the Mental Health Act 2000 (Qld), Schedule 2 at the time of the alleged offences.

2.   The defendant is permanently unfit for trial.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with offences of indecent dealing with a child – where evidence that the defendant now has dementia – where psychiatric evidence that the defendant was not of unsound mind at the time of the offences – 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 of unsound mind – whether the defendant of diminished responsibility – whether the defendant is fit for trial – whether any unfitness of a permanent nature

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

W M Potts for the defendant
J Tate for the Director of Mental Health

S Vasta for the Director of Public Prosecutions

SOLICITORS:

Price and Roobottom Solicitors for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

[1]      HOLMES J:  NHP is charged with indecent treatment of a child under the age of 12 between 1 February 1993 and 30 April 1993; a similar charge between 1 February 1995 and 30 November 1995; indecent treatment of a child under the age of 16 with a circumstance of aggravation in two instances between 1 July 1996 and 30 November 1996; a similar charge between 1 November 1997 and 31 December 1997; and maintaining an unlawful sexual relationship between 1 February 1993 and 31 December 1997.

[2]      I am satisfied that he was not of unsound mind within the meaning of the Mental Health Act 2000, schedule 2, at the time those offences were allegedly committed. However there is a considerable amount of expert evidence, particularly from Professor Byrne, a specialist in geriatric psychiatry, which leads to the inevitable conclusion that he is unfit for trial and that his unfitness is of a permanent nature.

[3]      The evidence of both Professor Byrne and Dr Morris is that he suffers from dementia which may either be of an Alzheimer’s type or a vascular type.  It is more probable that it is a cerebrovascular dementia.  That means that he would not be able to instruct counsel or understand the evidence.  I am satisfied therefore that he is permanently unfit for trial.  In the circumstances of this case it would be futile to make any forensic order and I make none.