10.0 - References to the Mental Health Court in all Circumstances
Chapter 7 Part 6 of the Mental Health Act 2000 (Qld) regulates inquiries on references to the Mental Health Court regardless of whether the defendant is currently the subject of an ITO or FO or not.
Under section 264 the Registrar must, within seven days of the reference being made, give written notice of the reference to the parties to the proceeding. Section 266 requires the Registrar to give the parties seven days notice of the details of the hearing and their right to representation. Section 265 requires each party to give the Registrar a copy of any expert's report the party has in their possession relating to the matters to be decided by the Court. Note that a reference may be withdrawn at any time by the person who made it by application to the Mental Health Court under section 261.
Under section 267 the Mental Health Court decides:
- Whether the person was of unsound mind when the alleged offence was committed (as per the three capacities under section 27 of the Criminal Code Act 1899 (Qld));
- If the charge is murder, and the person was not of unsound mind, the Court may decide whether the person was of diminished responsibility when the alleged offence was committed and may amend the charge to manslaughter;
- Under sections 270 and 271, where the Court finds that person was not of unsound mind at the time of the alleged offence, the Court must then decide whether the person is fit for trial, and, whether the unfitness is of a permanent or temporary nature.
The consequences of the Court deciding that a defendant was of unsound mind or unfit for trial are that the accused may not be legally responsible for the offences. However, the defendant may be confined securely, at 'Her Majesties Pleasure': section 647 Criminal Code Act 1899 (Qld). The Act may subject a person to continuing criminal sanction, even if the person was made the subject of a finding of unsoundness of mind or unfitness for trial where:
If the Mental Health Court decides that a person was of unsound mind at the relevant time for a specific alleged offence, or is unfit for trial, and that the unfitness is of a permanent nature, the person may be made subject to a non-contact order pursuant to section 318B of the Act. Such an order prevents a defendant from making contact with certain persons associated with the reference for up to two years. It is an offence to break such an order, and the maximum penalty for doing so is 40 penalty units or a years imprisonment.
Where there is a finding of temporary unfitness under section 270, section 280 asserts that proceedings must be stayed, either until upon a review pursuant to section 212 of the Act the Mental Health Review Tribunal decides that the person is fit for trial or until a certain time has elapsed after the Mental Health Court's decision (see section on the 'process for ongoing review of fitness for trial'). The defendant remains indirectly subject to the charges during this time.
The future responsibility for that person's treatment and supervision then usually passes entirely to the mental health system where an authorised mental health service will detain and treat the person under a Forensic Order as authorised by the Court.
Disputes as to Facts
Lawyers must note that the Mental Health Court cannot deal with factually contentious cases in some cases. This includes circumstances where there is a reasonable doubt the person committed the offence (see section 268), or, where the dispute is about a significant material fact on which an expert bases their opinion, and to make a decision based upon that opinion would be unsafe: See section 269.
Thus, when the reference is made, the Court will not determine the issues the subject of the reference unless there is an indication from the defence that the client's instructions are that they do not dispute the facts. This normally becomes an issue in the report from the medico-legal experts. It is not uncommon for the client to relate a set of factual circumstances to the expert that are dissimilar to the allegations contained in the police brief. In these circumstances, the Court will want clear indication as to the client's instructions in relation to this.
Lawyers must exercise caution. Whether a dispute of fact ought to disqualify the Mental Health Court from determining the question of unsoundness of mind or not is determined by the nature of the matter in contention. For instance, a defendant might claim to one Doctor that he consumed amphetamines two hours before the alleged offence; but to another deny that he consumed the drugs at all. These circumstances may provoke a dispute of fact substantially material to the opinions of both Doctors and so prevent the Mental Health Court from making a decision on the question of unsoundness of mind.
On the other hand, a defendant might not inform police that he heard voices at the time of the alleged offence, but so inform Doctors at a later time. One such Doctor mat opine that the defendant manufactured a story to attempt to devise a finding of unsoundness of mind; but another Doctor may opine that the defendant's early failure of recollection may have resulted from illness which abated upon treatment, allowing for accurate recollection. In contrast to the previous example, this merely exposes a difference of medical opinion, and not a factual dispute.
In cases where there is no dispute as to such facts, the Mental Health Court must decide whether the person is fit for trial. Under section 272, if the Court finds the person is fit for trial, the matter proceeds according to law. In this case the Court may, under section 273, remand the person, grant bail, or detain the person in an authorised mental health service, pending their Court hearing.
