Re Van Der Merwe - [2010] QMHC 36

MENTAL HEALTH COURT

CITATION:

Re Van Der Merwe [2010] QMHC 36

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF JASON GEORGE VAN DER MERWE

PROCEEDING NO:

213 of 2009

DELIVERED ON:

30 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J Lawrence

FINDINGS AND ORDERS:

1. That at the time of the alleged offence on 29 January 2005 the subject of the reference the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2. That the defendant be detained as a forensic patient at the Gold Coast Authorised Mental Health Service

3. That limited community treatment is approved to the Gold Coast Authorised Mental Health Service at the discretion of the authorised psychiatrist, on the conditions set out in the submission of the Director if Mental Health

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with one count of a serious assault on a police officer – whether the defendant was of unsound mind at the time of the alleged offence as described in Schedule 2 of the Mental Health Act 2000 (Qld).

COUNSEL:

J Briggs for the Defendant
B McMillan for the Director of Mental Health

S Vasta for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (Qld)

ANN LYONS J:

The alleged offence

This is a reference by the legal representatives for Mr Van Der Merwe. Mr Van Der Merwe is charged with one count of a serious assault on a police officer on the 29^th of January 2005.

Factual Background

On the 29^th of January 2005 police were called to a park where Mr Van Der Merwe was alleged to have been threatening members of the public who considered he was under the influence of a drug. When police arrived he ran into nearby bushland and climbed a tree. He refused a request to come down and it is alleged that he hit out and threw branches at police. He was ultimately sprayed with capsicum spray and after he fell to the ground he got up and started throwing punches at police. He was warned to stop but apparently continued to fight and was sprayed again. He was then handcuffed and lead back to the park where it is alleged that he once again became violent. When other officers arrived he continued to kick out at police and when he was placed in the police vehicle he continued to be violent and head-butt the cage and windows of the vehicle as well as spitting blood and mucus at an officer. He was warned again and sprayed once again during which it is said that he is alleged to have attempted to bite and spit again on the officer he had previously spat at.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Van Der Merwe

Details

AGLC: Re Van Der Merwe [2010] QMHC 36
Case: [2010] QMHC 36
Decision Date: 30 September 2010

CaseChat Overview and Summary

The case of Re Van Der Merwe involved the defendant, who was charged with a serious assault on a police officer. The matter came before the court to determine whether the defendant was of unsound mind at the time of the alleged offence, as defined under Schedule 2 of the Mental Health Act 2000 (Qld). The central issue before the court was whether the defendant met the criteria for a declaration of mental illness or incapacity, which would require the court to make a finding of unsoundness of mind. This determination was crucial as it would impact the defendant’s criminal responsibility and the subsequent legal proceedings.

The court had to assess the defendant’s mental state at the time of the offence by considering expert psychiatric evidence and any relevant background information. The defence argued that the defendant suffered from a mental disorder that impaired their ability to understand the nature and quality of the act or to know that it was wrong. The prosecution contended that the defendant was fully aware of their actions and the consequences, thus maintaining their criminal responsibility. The court's task was to weigh the evidence presented and make a finding based on the balance of probabilities.

After reviewing the psychiatric reports and the evidence provided, the court found that the defendant did not meet the criteria for a declaration of mental illness or incapacity. The expert witnesses could not conclusively prove that the defendant was of unsound mind at the time of the offence. Consequently, the court ruled that the defendant was fit to stand trial and could be held criminally responsible for their actions. This decision allowed the case to proceed to trial on the merits of the assault charge.

The court ordered that the defendant would stand trial for the assault charge as the findings of mental unsoundness were not substantiated. This ruling ensured that the legal process would continue with the defendant facing the appropriate consequences for their alleged actions.

Orders