Re Van Dijk

[2005] QMHC 50

MENTAL HEALTH COURT

CITATION:

Re Van Dijk [2005] QMHC 50

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF DIRK CORNELIUS VAN DIJK

PROCEEDING NO:

0217 of 2004

DELIVERED ON:

18 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

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 offence.

2.   The defendant was of diminished responsibility at the time of the alleged offence.

3.   The defendant is permanently unfit for trial.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder – where defendant suffering from dementia – where, owing to lack of evidence, examining psychiatrists could not reach conclusions regarding unsoundness of mind – whether the defendant, at the time of the alleged offences, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not to do the act pursuant to the Criminal Code, s 27 – whether the defendant of unsound mind – whether the defendant of diminished responsibility – whether the defendant is fit for trial – whether any unfitness of a permanent nature

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

C Reid for the defendant
J Tate for the Director of Mental Health

S Vasta for the Director of Public Prosecutions

SOLICITORS:

Patrick Murphy for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

[1]      :HOLMES J  Dr Van Dijk is charged with murder allegedly committed on 24 August, 2004.

[2]      The reporting psychiatrists, Dr Hogan and Professor Byrne, say that there simply is not enough information about his state of mind at the time the offence was allegedly committed to arrive at a finding of unsoundness, although it is clear that he does suffer from a disease of the mind in the form of dementia which may be of a cerebrovascular type or Alzheimer’s.  In those circumstances, the finding that I make is that he was not of unsound mind within the meaning of the Mental Health Act 2000, schedule 2, at the time the offence was allegedly committed.

[3]      The Act requires me to make a finding in relation to diminished responsibility.  That is not something that has been directly dealt with in the psychiatric reports but it seems evident to me from all that is said about Dr Van Dijk’s condition that he was of diminished responsibility at the time the offence was allegedly committed.

[4]      That would ordinarily lead to matters proceeding but the more important finding in this context is in relation to fitness for trial.  There is a uniformity of view that he is permanently unfit for trial.  He is 87 years of age.  He is suffering from mild to moderate dementia.  I make that finding.

[5]      The remaining question is as to whether a forensic order is necessary.  Professor Byrne had raised the possibility in context that while Dr Van Dijk is not, he considers, a threat to anyone else, he may be a threat to himself.  He suggested the possibility, no more than that, of a forensic order to ensure his care.  That means that the focus is on his treatment needs.  I am satisfied that Professor Byrne is correct in his approach; in other words, that Dr Van Dijk is not a threat to anyone but himself.  But in any event, having regard to the treatment needs as the primary concern, I adopt the views of Dr Wood and Dr Grant that a forensic order could offer no more than Mr Van Dijk’s present situation, which is placement in a nursing home with medical attention as needed.  In those circumstances, I will not make a forensic order.