Re Noller

[2005] QMHC 31

MENTAL HEALTH COURT

CITATION:

Re Noller [2005] MHC 031

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF GERALD ROUS ALLEN NOLLER

PROCEEDING NO:

No 0227 of 2004

DELIVERED ON:

20 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 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 indecent treatment of a child under the age of 12 – where evidence of defendant’s dementia – where psychiatric opinion differed as to whether, in relation to s 27 of the Criminal Code, the defendant’s capacities were impaired or deprived – 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 is fit for trial – whether any unfitness of a permanent nature

Criminal Code (Qld), s 27

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

R Anderson for the defendant
J Tate for the Director of Mental Health

C Kelly for the Director of Public Prosecutions

SOLICITORS:

Corser, Sheldon and Gordon Solicitors for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

1. HOLMES J:  Mr Noller is charged with indecent treatment of a child under the age of twelve on a date between 10 September 2003 and 16 April 2004 and another two charges of the same offence between 1 October 2003 and 16 April 2004.

1. He has been examined and reported on by two psychiatrists, Dr Fama and Dr Colls.  Both agree that he was probably demented at the time of the offences.  The divergence is this:  Dr Fama thinks the history is insufficient to show that he was deprived of the relevant capacities as opposed to those capacities being impaired.  Dr Colls thinks it is likely he was deprived of the capacity to know he ought not do the acts in question.

1. In the circumstances, given that divergence, and given the uncertainty of history, the appropriate finding is that he was not of unsound mind within the meaning of the Mental Health Act 2000, schedule 2, at the time the offences were allegedly committed.

1. On the other hand, the evidence is uniform as to his unfitness for trial.  Essentially, the view of the psychiatrists and psychologist who examined him, Mr Chittenden, is that his memory deficits are such that he could not effectively take part in a trial or instruct counsel.

1. In those circumstances, I find that he is permanently unfit for trial.  It does not seem that a forensic order is warranted.  He has now had a leg amputated and is very significantly disabled and cared for in a nursing home.  I will make no forensic order.