Re Oliver
[2012] QMHC 13
•6 June 2012
MENTAL HEALTH COURT
CITATION:
Re Oliver [2012] QMHC 13
PARTIES:
IN RE OLIVER
PROCEEDING NO:
No 0235 of 2011
DELIVERED ON:
6 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
4 June 2012
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr LawrenceFINDINGS AND ORDERS:
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COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental Health
S Vasta for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
ANN LYONS J:
The finding by the Mental Health Court
On 16 March 2012 the Mental Health Court (MHC) found Mr Ryan Oliver of unsound mind in relation to a charge of unlawful stalking uses/threatens violence between 20 July 2010 and 1 December 2011.
A Forensic Order (FO) was also made by the MHC on 16 March 2012, which approved limited community treatment (LCT) to commence immediately and required him to comply with the requirements of the authorised psychiatrist in relation to taking medication and other treatment. The FO also required that he abstain from alcohol and drugs and that he not drive a car unless approved by the treating psychiatrist. He was also required to be subject to random testing. The FO also contained a non-contact requirement in relation to Ms Huff.
Pursuant to s 281 of the Mental Health Act 2000 (Qld) the proceedings against Mr Oliver were therefore discontinued:
“281 Proceedings discontinued—unsound mind
(1) If the Mental Health Court decides a person charged with an offence was of unsound mind when the alleged offence was committed—
(a) proceedings against the person for the offence are discontinued; and
(b) further proceedings must not be taken against the person for the act or omission constituting the offence.
(2) Subsection (1) is subject to the person exercising the person’s right under part 8 to elect to be brought to trial for the alleged offence.”
A further charge in relation to breach of the Bail Act 1980 (Qld) did not result in a finding of unsoundness of mind and that charge was ordered to continue according to law.
The Mention in the Maryborough Magistrate’s Court
On 5 April 2012 the Director of Pubic Prosecutions forwarded a letter to the Registrar of the Maryborough Magistrates Court advising that the Maryborough Magistrates Court was the presiding court in relation to the charges and that a finding had been made that Mr Oliver was of unsound mind in relation to two of the charges. The court was also advised that a FO had been made.
The matter came before the Maryborough Magistrates Court on 30 April 2012 and Mr Oliver was fined in relation to the charge of breaching his bail obligations. The Magistrate, however, adjourned the stalking charge for a further three months and indicated to Mr Oliver that his Supreme Court bail obligations were still in place. Those bail conditions include conditions which require him to report to police and contain a prohibition against contacting his parents.
Issues raised by Legal Aid Queensland
Legal Aid Queensland (LAQ) has requested that the matter be mentioned in order to clarify the current position in relation to Mr Oliver and to raise concerns in relation to the current practice of the Office of the Director of Public Prosecutions (DPP) in relation to matters where there has been of finding of unsoundness of mind.
Counsel for LAQ advised the Court that Mr Oliver and his legal representatives in Maryborough are confused as to where the matter stands. Mr Oliver has been told by the Magistrate that he is required to comply with his bail conditions. LAQ submits that it is of significant concern that Mr Oliver is required to simultaneously follow two potentially conflicting obligations, namely his FO and his bail conditions.
LAQ raised particular concerns about the following paragraph in the letter to the Registrar of the Magistrate’s Court, which is in the following terms:
“Do not formally discontinue the prosecution by nolle prosequi or ‘NETO’. By operation of s281 of the Mental Health Act 2000 (Qld) such a discontinuance is automatic and a ‘NETO’ could invalidate any Forensic Orders made by the Mental Health Court. It is suggested that the decision of the Mental Health Court simply be tendered. I have enclosed a copy of the Decision of the Mental Health Court for your records.
The Mental Health Act 2000 allows for an appeal period of 28 days, during which any of the parties can commence an appeal against the decision to the Court of Appeal. I will notify you if such an appeal is instituted.”
The particular concerns raised by LAQ are set out in the written submission by Counsel from LAQ, as follows;
“1. By its letter, the DPP is seeking to interfere with the decision of the MHC.
2. The DPP wrote the letter without telling Mr Oliver, Carswell and Co or LAQ. Such denied natural justice to Mr Oliver, and embarrassed and confused him and his legal representatives. I note that Mr Oliver is a paranoid schizophrenic.
3. The “letter” is, at the least, a submission. Litigants are not permitted to make secret submissions to courts.
4. The letter in fact commands the Magistrates’ Court to refrain from doing something. It is not the role or the place of a litigant to tell a court what it can and cannot do.
5. The contents of the letter are unclear, and likely to have been misleading to the recipient. “Estopped from proceeding” is not equivalent to “discontinued”.
“Estopped from proceeding” may connote that the proceedings have only been convey temporarily estopped; not permanently estopped.
6. Note that the letter misconceives the powers and functions of a Magistrate. A Magistrate can’t enter a nolle prosequi, nor can he or she “Neto” charges. Faced with the decision of the MHC, he was only empowered to formally strike out the charges in his court.
7. The letter caused the Magistrate to do something that he was not lawfully required to do, and which was not desirable for him to do: indicating that Mr Oliver remain under the charge for three more months, and on bail conditions that if breached may have resulted in him being placed in custody. I note that I am instructed that Mr Oliver has been assaulted in custody at least once before.
8. The bail obligations may be inconsistent with Mr Oliver’s FO obligations, or even contradict those, thereby restricting the effect of the FO and its capacity to treat Mr Oliver and its capacity to protect others from his condition.
Concluding, the DPP’s letter was secretive, inappropriate and potentially dangerous.
All that is required to convey the MHC’s decision on unsoundness to the lower court is a letter from the MHC Registry to the chief executive for justice attaching the MHC’s decision: pursuant to s 286 (1) (c) MHA. That causes the chief executive to notify the lower court Registry of the MHC’s decision.
At the Magistrates’ Court mention, the Magistrate can then strike out the charges.
If perchance the defendant wishes to invoke his right to trial – an extremely rare event indeed – then s 281 [2] MHA applies. In that case, the DPP can present an ex officio indictment.
The DPP ought to forthwith provide details of any other matters in which this form of letter has been sent, so that checks can be made that other defendants are not subject to the same unlawful obligations, unbeknown to us or their legal representatives.”
Counsel for the DPP attended the mention and advised the Court that the letter sent to the Registrar on 5 April 2012 was in fact sent by the DPP, pursuant to a delegation from the Chief Executive of the Department of Justice, to fulfil the requirements of s 286(2) to advise the Magistrates Court in Maryborough of the outcome of the reference.
I note that s 286 of the Mental Health Act provides:
“286 Notices of decisions and orders
(1)The registrar must give a copy of the Mental Health Court’s decision on a reference and if relevant, the order to continue proceedings against the person for the offence, to the following persons—
(a) the parties to the proceeding for the reference;
(b) the Attorney-General;
(c) the chief executive for justice;
(d) if an involuntary treatment or forensic order is in force for the person—the tribunal;
(e) if the person the subject of the reference is an involuntary patient—the administrator of the patient’s treating health service;
(f) if the person the subject of the reference is in other lawful custody—the person’s custodian.
(2) The chief executive for justice must give written notice of the decision and order to—
(a) the registrar of the court in which the proceedings for the offence are to continue or would have continued; and
(b) if the person is a child—the chief executive for young people.”
The Requirements of s 286
I accept that the purpose of the letter was to fulfil the statutory obligations of the Chief Executive of the Department of Justice pursuant to the requirements of s 286(2) of the Act. The letter sent by the DPP in those circumstances was sent in the capacity of the DPP as a delegate of the Chief Executive and not in the as a party to the proceedings before the MHC. In those circumstances a copy of the letter is not required to be given to the other parties to the reference, although it would be helpful if such a practice did occur. It would also be helpful if the letter indicated that the letter was written in that capacity and for the purposes of s 286(2). I do not consider that there has been a breach of the principles of natural justice in that regard.
A difficulty arises however because the same letter seeks to advise the Registrar of the Court that the DPP does not intend to enter a nolle prosequi nor is there any intention ‘not to offer any evidence’ (NETO). That information, however, is unfortunately conveyed as a direction to the Registrar rather than information as to the intention of the DPP in relation to the matter. Such decisions, of course, are necessarily decisions which are made by the DPP and not by the Registrar or a Magistrate.
The final paragraph also advised that the MHC decision may be appealed within 28 days. At the time the letter was sent to the Registrar the appeal period had clearly not expired. In the circumstances the Magistrate considered it appropriate to adjourn the proceedings for a further three months and to indicate that bail was continued.
It would seem that some of the confusion in this case has come from a lack of clarity in the letter from the DPP to the Registrar. As the charges had been discontinued by operation of s 281 of the Mental Health Act there were no proceedings on foot and bail conditions were no longer operative. The letter seemed to imply that there was some uncertainty in this regard when clearly that is not the case given the clear words of s 281.
The letter should be redrafted to make it clear that the proceedings were in fact discontinued by operation of law pursuant to the decision of the MHC on 16 March 2012.
Any other information that the DPP wishes to communicate in relation to administrative arrangements that should follow as a result of the discontinuation should be conveyed in a separate letter and not as part of a letter which is written pursuant to a delegation.
It is important that this matter be mentioned as soon as possible in Maryborough so that the charges are struck out in accordance with the decision of the MHC and it is made clear that the bail conditions no longer operate and that Mr Oliver is now required to comply with the conditions of his FO.
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