Re Zischke - [2013] QMHC 13

MENTAL HEALTH COURT

CITATION:

Re Zischke [2013] QMHC 13

PARTIES:

REFERENCE BY DEFENDANT’S LEGAL RESPRESENTATIVE IN RESPECT OF TREVOR ERNIE ZISCHKE

PROCEEDING:

No 0239 of 2012

DELIVERED ON:

22 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2013

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr A S Davison

FINDINGS AND ORDER:

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

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

3.     The defendant be detained, pursuant to a forensic order, in the Park High Secure Program Authorised Mental Health Service.

4.     There be no approved limited community treatment at this time.

5.     A correctional officer escort the defendant to the Park High Secure Program Authorised Mental Health Service.

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

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with the murder of his wife – where the defendant reported suicidal ideation and suicide attempts in the weeks preceding the alleged offence – where the reporting psychiatrists opine the defendant was suffering a major depressive episode at the time of the alleged offence – where each of the reporting psychiatrists opine the major depressive episode completely deprived the defendant of the capacity to know he ought not to do the act of killing his wife – whether the defendant retained the capacity to reason about the wrongness of the act of killing his wife – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence – whether a Forensic Order should be made – whether Limited Community Treatment should be approved

Criminal Code 1899 (Qld), s 27

DAR v DPP (Qld) & Anor[2008] QCA 309
Re HW [2008] QMHC 14
R v Porter (1933) 55 CLR 182
R v Stapleton (1952) 86 CLR 358
R v Schafferius [1987] 1 Qd R 381

COUNSEL:

S L Kissick for the defendant
K A Parrott for the Director of Mental Health

S P Vasta for the Director of Public Prosecutions (Qld)

SOLICITORS:

McMillan, Kelly & Thomas for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Queensland)

By reference, filed 15 October 2010, the legal representatives for Trevor Ernie Zischke referred to this Court his mental condition at the time of an offence of murder, alleged to have been committed on 9 May 2012. The issue for determination is whether the defendant was suffering from unsoundness of mind or, alternatively, diminished responsibility at the time of the alleged…

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 Zischke

Details

AGLC: Re Zischke [2013] QMHC 13
Case: [2013] QMHC 13
Decision Date: 22 October 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Re Zischke was heard where the defendant, Zischke, was charged with the murder of his wife. The court was tasked with determining whether Zischke was suffering from unsoundness of mind at the time of the alleged offence, as defined in the Mental Health Act 2000 (Qld). This determination was crucial as it would impact the criminal proceedings against him and the potential imposition of a Forensic Order.

The court had to decide if Zischke was capable of understanding the wrongfulness of his actions due to a major depressive episode, as suggested by the reporting psychiatrists. The key issue was whether his mental state deprived him of the capacity to reason about the wrongness of killing his wife. The court examined the opinions of the psychiatrists and the statutory definition of unsoundness of mind to reach its decision.

The court found that Zischke was indeed suffering from unsoundness of mind at the time of the alleged offence, based on the evidence provided by the psychiatrists and the statutory definition. Consequently, the court discontinued the criminal proceedings against him and ordered that he be detained in the Park High Secure Program Authorised Mental Health Service under a forensic order. The court also decided against approving limited community treatment at that time and directed that a correctional officer escort Zischke to the designated mental health service. Additionally, the court ordered that copies of the reports and the transcript be provided to the relevant parties and the Mental Health Review Tribunal.

Orders

Orders of the court

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

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

3. The defendant be detained, pursuant to a forensic order, in the Park High Secure Program Authorised Mental Health Service.

4. There be no approved limited community treatment at this time.

5. A correctional officer escort the defendant to the Park High Secure Program Authorised Mental Health Service.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re Zischke [2013] QMHC 13
PARTIES:	REFERENCE BY DEFENDANT’S LEGAL RESPRESENTATIVE IN RESPECT OF TREVOR ERNIE ZISCHKE
PROCEEDING:	No 0239 of 2012
DELIVERED ON:	22 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2013
JUDGE:	Boddice J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr A S Davison
FINDINGS AND ORDER:	1. *At the time of the commission of the alleged offence, the subject of the reference, the defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act* 2000. 2. The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offence the subject of the reference. 3. The defendant be detained, pursuant to a forensic order, in the Park High Secure Program Authorised Mental Health Service. 4. There be no approved limited community treatment at this time. 5. A correctional officer escort the defendant to the Park High Secure Program Authorised Mental Health Service. 6. Copies of the reports, and of the transcript, be provided to the parties, to the treating team, and the Mental Health Review Tribunal.**
CATCHWORDS:	MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with the murder of his wife – where the defendant reported suicidal ideation and suicide attempts in the weeks preceding the alleged offence – where the reporting psychiatrists opine the defendant was suffering a major depressive episode at the time of the alleged offence – where each of the reporting psychiatrists opine the major depressive episode completely deprived the defendant of the capacity to know he ought not to do the act of killing his wife – whether the defendant retained the capacity to reason about the wrongness of the act of killing his wife – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence – whether a Forensic Order should be made – whether Limited Community Treatment should be approved Criminal Code 1899 (Qld), s 27 DAR v DPP (Qld) & Anor[2008] QCA 309 Re HW [2008] QMHC 14 R v Porter (1933) 55 CLR 182 R v Stapleton (1952) 86 CLR 358 R v Schafferius [1987] 1 Qd R 381
COUNSEL:	S L Kissick for the defendant K A Parrott for the Director of Mental Health S P Vasta for the Director of Public Prosecutions (Qld)
SOLICITORS:	McMillan, Kelly & Thomas for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Queensland)