Re Smith

[2000] QCA 161

[2000] QCA 161

COURT OF APPEAL

McMURDO P
DAVIES J
FRYBERG J

[Re PETER JAMES SMITH]

CA No 347 of 1999

IN THE MATTER OF THE MENTAL HEALTH ACT 1974

and

IN THE MATTER OF 
PETER JAMES SMITH   Appellant

BRISBANE

..DATE 05/05/2000

JUDGMENT

THE PRESIDENT:  The appellant appeared before the Mental Health Tribunal on 23 September 1999.  He had been charged with one count of unlawful wounding and one count of serious assault.

Counsel for the prosecution submitted that it was clear the appellant had no defence in respect of the charge of serious assault but that he did not contest a finding that the appellant was of unsound mind at the relevant time in respect of the charge of unlawful wounding.  Counsel for the appellant, who was a very experienced barrister, stated his agreement with that submission. 

The Tribunal then formally found that the appellant was of unsound mind within the meaning of section 33 of the Mental Health Act 1974 at the time he committed the offence on 9 March 1998 and was, therefore, liable to be detained as a restricted patient under part 4 of the Act. The appellant appeals from that decision under section 43A(3)(a) Mental Health Act 1974.

The appellant committed the offence of unlawful wounding in the following circumstances which he described to his psychiatrist, Dr Edwin Young.  He kept thinking of Shane Warne who bowls a leg cutter and thought this was a message to him to cut his mother's leg, warn her, voices urged him to cut his mother's leg.

He believed Bette Midler in the movie, Hocus Pocus, was influencing his mother to be a witch.  He associated his sister Donna with Donna Bradman, Donna badman, Donna badwoman.  He thought his sister, Donna, was in league with his mother to hurt him and Donna's children.  His mother wanted him to leave the house, he believed, so that she could hurt Donna's children.  The voices he heard kept singing to him, "Cut her leg, warn her" and he did. 

It seems after he committed that offence he was arrested and placed in the watch-house.  That is the incident in respect of which the Mental Health Tribunal found him to be of unsound mind. 

Whilst in the watch-house he became violent.  A police officer tried to deal with him.  He spat in the complainant police officer's face saying, "Hope you die now, cunt".  The spit struck the complainant in the face and eyes.  The appellant was an intravenous drug user and had Hepatitis C.  The next day the police officer said the appellant apologised to him for spitting at him and said he had been in a bad way from drug abuse.  It should be said those are the facts alleged by the police officer in his statement.

As has been noted the appellant was examined at the request of his lawyers by a psychiatrist, Dr Edwin Young, who, while satisfied the appellant was of unsound mind in respect of the unlawful wounding offence on his mother, did not believe the appellant was deprived of any of the three capacities stipulated under section 28A of the Mental Health Act 1974 in respect of the offence involving the serious assault on a police officer although his capacities may have been diminished. Dr Young also believed the appellant was fit for trial, able to instruct counsel and able to endure his trial with serious adverse consequences to his mental state being unlikely.

It is not in dispute that the appellant suffers from paranoid schizophrenia complicated by poly substance abuse and anti-social personality traits. 

The appellant's oral submissions, handwritten grounds of appeal and his outline of argument complain that it is to him incongruous that he could be found to be of unsound mind in respect of the first offence but not in respect of the second which occurred shortly afterwards.

Whilst the appellant's confusion is perhaps understandable, the explanation when the material is looked at is obvious enough.  In respect of the first offence there is psychiatric evidence stating that he was of unsound mind.  He gave his psychiatrist a detailed account of voices telling him to act in this way, culminating in the wounding.  There was no psychiatric evidence before the Mental Health Tribunal to suggest that in respect of the second offence the appellant was of unsound mind. 

He claims that he disputes the statements of police officer.  If that is the case he will be able to contest those issues at trial.  He complains his brother falsely influenced Dr Kingswell in Dr Kingswell's report which was before the Mental Health Tribunal, but that report was not relied upon by the Tribunal.  He claims about the quality of his legal representation in the past but none of the material placed before this Court by him, which in any case is not in a sworn form, causes me to be concerned that there has been an injustice in the orders that have been made.

The appellant complains that he did not fully explain himself in respect of the serious assault charge to the psychiatrists who examined him.  Psychiatrists are experts and are experienced at taking instructions from people like the appellant suffering from mental illness.  Dr Young interviewed the appellant and gave evidence, which was not contested, that the appellant was not of unsound mind in respect of the serious assault.  As has been stated the appellant was represented by a very experienced barrister.

The appellant also complains that he has a serious mental illness and because legal representation has not been provided to him he has been forced to appear for himself.  As there is no merit in his appeal he has not been disadvantaged by the refusal of legal aid and he has adequately articulated all his concerns to this Court. 

There seems to me to be no substance in the complaints made by the appellant.  I would dismiss the appeal.

DAVIES JA:  I agree.

FRYBERG J:  I agree.  The evidence below was all one way and the decision reached by the Tribunal was the only one open to it.

THE PRESIDENT:  The order is the appeal is dismissed.

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