Re RWC
[2002] QMHC 13
•5 September 2002
MENTAL HEALTH COURT
CITATION: | Re RWC [2002] QMHC 013 |
PARTIES: | REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF RWC |
PROCEEDING NO: | 0001/2002 |
DELIVERED ON: | 5 September 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 September 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr J M Lawrence Dr J F Wood |
FINDINGS AND ORDERS: | The Court is obliged to undertake an examination of the documentary and oral evidence put before it to form its own view as to whether there is a reasonable doubt that the defendant committed the offence. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder of police officer – where defendant claims to have no memory of the offence – where prosecution challenges the genuineness of his memory loss – determination of preliminary question – whether Court is prevented from making a decision on the issues of unsoundness of mind and diminished responsibility by force of s 268 Mental Health Act 2000 – interpretation of s 268 Mental Health Act 2000 – whether it is sufficient for the defendant merely to deny his guilt or whether the Court must examine the evidence and form its own view as to whether there is a reasonable doubt the offence was committed – interpretation of “reasonable doubt” Re B, Mental Health Tribunal, 19 March 1997, unreported, applied Doney v The Queen (1990) 171 CLR 207, referred to |
COUNSEL: | D Ross QC and D O’Gorman for the defendant |
SOLICITORS: | Howden Saggers for the defendant |
WILSON J: RWC (“the defendant”) has been charged with murder by shooting of a police officer on 21 July 2000. His solicitors wrote to the secretary of the former Mental Health Tribunal in February 2002 a letter in which they said as follows -
“[The defendant] has told the psychiatrists that he has no memory of the shooting. We acknowledge that there is some evidence that a .303 bullet was found near the scene, that a .303 case was found in [the defendant’s] curtilage near the scene and that [the defendant] owned a .303.
Of the swabs of [the defendant’s] hands, we have no information however, we acknowledge that there is strong circumstantial evidence to link [the defendant] with the firing of that single shot. If [the defendant] did fire the shot:
(a) Was the firing accidental?
(b) Was it aimed at Police Officer Watt?
(c) Was there any intention that the bullet strike Police Officer Watt?
(d) Did [the defendant] have the capacity to form the relevant intent?
(e) Is there diminished responsibility?
It is submitted that 3(e) is the only matter relevant to the Tribunal investigation.”
With the passage of time the matter has now come before the Mental Health Court and is to be dealt with under the Mental Health Act 2000 (Qld). I have received written submissions and heard oral argument on the preliminary question of whether this Court ought to proceed to determine a reference with respect to the defendant’s mental condition in the light of sections 268 and 269 of the Mental Health Act 2000. Section 268 of the Act provides –
“(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (“the disputed offence”);
(2)However, the Court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.”
And section 269 provides –
“(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the Court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.
(2)Without limiting subsection (1) a substantially material fact may be -
a) something that happened before, at the same time as, or after the alleged offence was committed; or
b) something about the person’s past or present medical or psychiatric treatment.”
Under the previous legislation, the Mental Health Act 1974 (Qld), section 33(2) as amended provided that the Mental Health Tribunal should not proceed where -
“… the facts of or connected with the alleged offence or of the involvement therein of the person in question are so in dispute that it would be unsafe to make a determination …”
In Re B, Mental Health Tribunal, 19 March 1997, unreported, Justice Dowsett held that -
“The Tribunal should proceed unless there was a factual dispute as to the person’s guilt other than in connection with soundness of mind or diminished responsibility.”
I note that the section had been amended to overcome the effect of the decision in R v House [1986] 2 Qd R 415 and that in R v Schafferius [1987] 1 Qd R 381 that “facts” could only be a reference to facts relevant to the Tribunal’s function of determining the question of soundness of mind. Facts concerning the person’s involvement in the alleged offence might be relevant but not necessarily so.
The present legislation, however, deals both in section 268 with a factual dispute as to guilt other than in connection with soundness of mind or diminished responsibility and in section 269 with a factual dispute as to the person’s mental condition which may be connected with the offence or may be something in his or her medical or psychiatric history.
Under section 268 the Court must not proceed if it is satisfied there is reasonable doubt the person committed the offence.
This Court has a duty to inquire into matters before it (section 383(2)(a)) but if the facts of an offence are not in dispute, it must determine the person’s mental state at the time of the alleged offence and at the time of the hearing. Generally, in matters before this Court, no party bears the onus of proof and subject to section 268 a matter is to be decided on the balance of probabilities (section 405).
I have received submissions on the meaning of section 268. First of all, Mr Meredith for the Director of Public Prosecutions submitted that to be sufficiently disputed, all that is required is that there be a defence raised either by representatives for the accused or on the papers which, if not disproved beyond reasonable doubt, would result in an acquittal. His submission went on that this is not a question of the strength or otherwise of the prosecution case, but merely whether or not there is a defence raised.
In this case the patient says he has no memory of the incident. The prosecution disputes that. Its case, as I understand it, is that he is faking the loss of memory. Of course, there is the further question: if the loss of memory is genuine, what is its cause?
The patient was presented by Mr Ross QC and Mr O’Gorman. Mr Ross QC submitted that the appropriate test is really that in Doney v The Queen (1990) 171 CLR 207 which is the test applied when a Judge is asked not to submit a case to the jury. That test was explained further by King CJ of the South Australian Supreme Court in Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323.
King CJ said at page 327 –
“If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction.”
Mr Tate of counsel appeared on behalf of the Director of Mental Health and made submissions in an endeavour to assist the Court. Essentially his submission was that pursuant to section 268 the Court ought not to proceed where the facts are so in dispute that it would be unsafe for it to make a determination under section 267. He went on, “the same would apply where there’s a clear legal defence to the charge.” That submission, it would seem, picks up the wording of the former legislation.
The legislation with which I am dealing is expressed in terms of whether this Court is satisfied that there is reasonable doubt. It does not direct the Court to proceed if the jury could be satisfied beyond reasonable doubt. Rather it says to this Court, “This Court must not proceed if it has a reasonable doubt.”
The Doney test, it seems to me, is a reflection of the adversarial nature of a criminal trial, but these proceedings are not adversarial in nature.
I formed the view that it is not sufficient for the defendant merely to deny his guilt. In my view this Court is obliged to undertake an examination of such evidence as is put before it, whether it be in documentary or oral form, and it is obliged to form its own view as to whether there is a reasonable doubt that the offence was committed. By reasonable doubt I take it the legislature meant one not based on speculation or that is otherwise fanciful.
In the present case questions of whether the act was a willed act, whether there was an accidental shooting, have been raised. If on the material that is put before me more than one inference is reasonably open on the evidence I would be left in reasonable doubt that accused committed the offence.
I am going to ask counsel to take me through the evidence, to lead any oral evidence that they wish and to make submissions to me on the inferences that are open on these matters. I do not regard it as necessary at this stage to rule on the meaning of section 269.
I make one further observation. I do not regard this as an impermissible usurpation of the role of the jury; rather it is fulfilling the obligation imposed on this Court by the Mental Health Act 2000. The Act itself does provide some safeguards for the patient in this regard. There is section 316 about the inadmissibility of evidence from these proceedings in other proceedings and there is also section 311 which allows the patient to elect to proceed to trial despite a decision of the Mental Health Court. This provides a safety net against what Justice Dowsett described as -
“A miscarriage of justice if a person not guilty of an alleged offence for reasons other than unsoundness of mind and diminished responsibility were to be dealt with pursuant to the Mental Health Act as if he were guilty.”
Those observations were made in Re B and of course his Honour was referring to the previous legislation, but I regard what he said as equally apposite under the present legislation.
1
2