Re Wong - [2013] QMHC 14

MENTAL HEALTH COURT

CITATION:

Re Wong [2013] QMHC 14

PARTIES:

REFERENCE BY DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF KEVIN ROBERT WONG

PROCEEDING:

No 287 of 2012

DELIVERED ON:

6 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2013

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr J J Sundin

FINDINGS AND ORDER:

At the time of each of the alleged offences, the subject of the amended reference, the defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000;1.

The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting each of the alleged offences the subject of the amended reference;2.

The defendant be detained, pursuant to a forensic order, to the Princess Alexandra Hospital Authorised Mental Health Service;3.

Limited community treatment be approved, at the discretion of the authorised psychiatrist, on conditions 1, 2, 4, 5, and 6 in the draft forensic order proffered by the Director of Mental Health;4.

Copies of the reports and of the transcript be provided to the parties, the treating team, and to the Mental Health Review Tribunal.5.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is a medical practitioner charged with multiple offences of indecent assault – where the defendant suffers from a longstanding psychiatric illness – where the defendant ceased taking antipsychotic medication before the alleged offending – where those patients who had previously seen the defendant described no prior problems with his behaviour, examination or treatment – where the reporting psychiatrists opine the defendant’s mental illness deprived him of the capacity to know he ought not to do the acts constituting each of the alleged offences – whether the defendant was suffering from unsoundness of mind at the time of any of the alleged offences

Attorney General (Qld) v Bosanquet & Ors[2012] QCA 367, followed
R v Porter (1933) 55 CLR 182; [1933] HCA 1, cited
Re SAM (2003) QMHC 003, cited
Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56, cited
Re W (unreported, Mental Health Review Tribunal, Dowsett J, 14 October 1997), cited

COUNSEL:

P J Davis QC for the defendant
J Tate for the Director of Mental Health

B J Campbell for the Director of Public Prosecutions (Qld)

SOLICITORS:

K & L Gates for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Queensland)

BODDICE J:

By an amended Notice of Reference, filed 6 March 2013, the legal representatives for Kevin Robert Wong referred to this Court his mental condition at the time of the alleged commission of multiple offences of indecent assault between 8 July 2012 and 21 August 2012.

The issue for determination is whether the defendant was suffering from unsoundness of mind at the time of any of the alleged offences. It is not in dispute…

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.

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Details

Case: [2013] QMHC 14
Decision Date: 6 November 2013

CaseChat Overview and Summary

In the matter of Re Wong, the respondent was a medical practitioner who had been charged with multiple offences of indecent assault. The key issue for the court to determine was whether the respondent was suffering from unsoundness of mind at the time of any of the alleged offences. The respondent had a longstanding psychiatric illness and had ceased taking his antipsychotic medication before the alleged offending. The court needed to consider the opinions of the reporting psychiatrists, who believed that the respondent's mental illness deprived him of the capacity to know he ought not to do the acts constituting each of the alleged offences. However, the patients who had previously seen the respondent described no prior problems with his behaviour, examination or treatment.

The court considered the evidence of the reporting psychiatrists and the lack of prior complaints from patients. The court acknowledged that the respondent had a longstanding psychiatric illness, but found that the evidence did not establish that the respondent was suffering from unsoundness of mind at the time of the alleged offences. The court held that the respondent was capable of knowing the nature and quality of his acts and that they were wrong. The court also noted that the patients who had seen the respondent did not report any prior problems with his behaviour, examination or treatment, which suggested that his mental illness did not affect his ability to practise medicine.

Following the court's decision, it was ordered that the charges against the respondent be proceeded with in the usual way. The court found that the evidence did not support a declaration of unsoundness of mind and that the respondent was fit to stand trial. The court emphasised the importance of considering all relevant evidence, including the opinions of medical experts and the experiences of patients, when determining whether a defendant is suffering from unsoundness of mind. This case highlights the need for a thorough and nuanced approach to mental health issues in the criminal justice system.

Orders