Re Panovic

[2006] QMHC 20

MENTAL HEALTH COURT

CITATION:

Re Panovic [2006] QMHC 20

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF PETER PANOVIC

PROCEEDING NO:

No 0056 of 2005

DELIVERED ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2006

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr J M Lawrence

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 fit for trial

3.   Proceedings against the defendant are to continue according to law

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with attempted deprivation of liberty and unlawful entry of a motor vehicle with intent – where defendant suffered and continues to suffer from chronic paranoid schizophrenia – where defendant was psychotic at time of alleged offence – where defendant had consumed alcohol and methylamphetamine at time of alleged offence – where defendant had undergone electro-convulsive therapy – whether defendant’s memory was affected so as to deprive him of the capacity to instruct counsel – whether defendant was fit for trial

Mental Health Court Act 2000 (Qld), schedule 2

Kesavarajah v The Queen (1994) 181 CLR 230, applied
R v Presser (1958) VR 45, applied
R v Podola [1960] 1 QB 325; (1959) 3 All ER 418, considered

COUNSEL:

J Farmer for the defendant
J Tate for the Director of Mental Health
C Kelly 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 Panovic is charged with attempted deprivation of liberty and unlawful entry of a vehicle with intent, those offences allegedly occurring on the 20th of August 2001.  The sole issue here was that of fitness for trial.

1. The circumstances of the alleged offending bear some examination.  It is alleged that the two female complainants had gone out to the car belonging to one of them which was parked in the street, and saw that there seemed to be someone inside.  One of them looked in the back seat.  It is alleged that Mr Panovic told her to get in the car, told her he had a gun and said that he would blow her head off, and that she should drive.  In fact he had no weapon and when the police arrived and he was asked whose car it was he mumbled incoherently, according to the charge sheet.

1. In February 2002 a finding was made that the facts were so disputed that no unsoundness or soundness finding should be made but Mr Panovic was found unfit for trial.  In June 2005 the Mental Health Review Tribunal, on review, found that he was presently fit for trial.

1. It is, I think, quite clear that at the time of that alleged offending Mr Panovic was psychotic.  He was on leave from the John Oxley Memorial Hospital but, contrary to the conditions of his leave, was at his sister's rather than his mother's.  He acknowledged on his return to the hospital that he had had alcohol and three points of methylamphetamine.

1. The evidence here was given by Dr Curtis, Dr Sundin and Dr Reddan and, I should say, all three psychiatrists agree that Mr Panovic suffered and continues to suffer from chronic paranoid schizophrenia which is presently in remission.

1. Dr Curtis and Dr Sundin considered that Mr Panovic was not fit for trial for this reason, that he had, in his accounts to them, no memory of the events and that he would thus be unable to give any coherent account to his counsel.  As Dr Sundin pointed out, that would mean that he would not be able to give counsel instructions, would not be able to challenge the prosecution version of events, and would not be able to give evidence.  Dr Sundin attributed his lack of memory to the effects of psychosis, the lapse of time, intoxication and subsequent treatment with electro-convulsive therapy. Dr Curtis particularly emphasised the interaction of amphetamines with treatment drugs and the unpredictable toxic effects of the combination. Dr Sundin accepted that the illness itself would not cause any difficulty in Mr Panovic's ability to give evidence; the problem was the inability to give a coherent explanation of the events.  She did not consider that he had any ongoing disorder of memory; rather the disorder to which she referred was a disturbance of his memory for those specific events of the 20th of August 2001.

1. Dr Reddan did not agree that electro-convulsive therapy would have obliterated Mr Panovic's memory of the events.  She took the view that electro-convulsive therapy might have disrupted his memory around the actual time of the treatment.  She pointed out too that Mr Panovic had given coherent, but not necessarily consistent, accounts of the event to doctors at the beginning of 2002.  I should say that the electro-convulsive therapy was in October 2001.  Her point from that was that if there had been any damage to memory, that should have been apparent at that time; but Mr Panovic had not at that stage complained of any memory loss.  It followed too, Dr Reddan said, that the psychosis that he was undoubtedly experiencing at the relevant time would not have obliterated his memory so as to prevent his giving those accounts.  Both Dr Wood and Dr Lawrence endorse Dr Reddan's view about the unlikelihood of ECT obliterating memory. 

1. Dr Reddan's view was that it was more likely the passage of time, ordinary forgetfulness, and, to some extent, avoidance of the issues that would explain Mr Panovic's assertions that he did not remember.

1. I accept that there are a number of factors:  the lapse of time, Mr Panovic's medical condition, his treatment for it, intoxication and the general effects of amphetamine use combined with medication which are likely to have very significantly impaired his memory for the events.  But it seems to me that the issue of fitness for trial is one which turns around current mental competence.  It is not suggested that Mr Panovic cannot communicate to counsel his position, including what memory he has of the events with all the flaws attached to that memory and its shortcomings.  It is really a position where it is not that he cannot give instructions, but that he has not satisfactory instructions to give.  It seems to me that in practical terms it is not different from the situation where a client may have an alcoholic blackout and be unable to give instructions.  I think that the position taken by Dr Sundin and Dr Curtis confuses the capacity to give instructions with the quality of the instructions to be given. 

1. There was no unequivocal opinion to the effect that Mr Panovic would suffer serious adverse consequences to his mental health and certainly the opinions of Dr Sundin, Reddan and Mr Panovic's current treating psychiatrist, Dr Baruah, would suggest that it is not probable that severe adverse consequences to his mental health are likely. 

1. Taking the view then that I do of the insufficiency of a loss of memory to amount to an incapacity in terms of the Presser Tests - and I should say here I'm indebted to Mr Farmer who has, at my request, researched the subject and has brought to my attention the case of R v Podola (1959) 3 All ER 418 which would seem consistent with that approach - I conclude that Mr Panovic is not labouring under an incapacity to make his defence and version of the facts known to the Court and to his counsel or any incapacity in making his defence such as to render him unfit for trial in the sense referred to in R v Presser (1958) VR 45 and endorsed in Kesavarajah v The Queen 181 CLR 230.

1. Having found that Mr Panovic is fit for trial I direct that the proceedings should continue according to law.