Cottier, Re [2010] QMHC 45

MENTAL HEALTH COURT CITATION: Re Cottier [2010] QMHC 45 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF JAMIE CRAIG COTTIER PROCEEDING: No 187 of 2009 DELIVERED ON: 10 December 2010 DELIVERED AT: Brisbane HEARING DATE: 10 December 2010 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J Chalk Dr E N McVie FINDINGS AND ORDER: 1. That in respect of the charges of possess dangerous drug and possess utensil or pipe on 5 July 2007, the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 2. That in respect of the remaining charges there is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offences; 3. That the defendant be detained as a forensic patient at the Sunshine Coast Network Authorised Mental Health Service; 4. Approval of limited community treatment on the conditions provided in the submission from the Director of Mental Health. 5. That the defendant is temporarily unfit for trial. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two counts of fraud/dishonestly obtains property from another, two counts of personation, stealing, possess dangerous drug, and possess utensil or pipe – where opinion of expert psychiatrists differed as to whether defendant was permanently unfit for trial in relation to the charges of possess dangerous drug and possess utensil or pipe – whether defendant is fit for trial – whether unfitness was of a permanent nature Mental Health Act 2000 (Qld), Schedule 2, s 268 COUNSEL: D Shepherd for the Defendant J Tate for the Director of Mental Health S Vasta for the Director of Public Prosecutions (Qld) -- 1 of 3 -- 2 SOLICITORS: Legal Aid Queensland for the Defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) PHILIPPIDES J: [1] Jamie Craig Cottier is charged with stealing on 1 January 2007, fraud/dishonestly obtains property from another, personation on 22 January 2007, a further count of personation on 24 January 2007, together with a count of fraud/dishonestly obtains property from another on the same date. There are also two charges in relation to 5 July 2007 being possess dangerous drug and possess utensil or pipe. [2] There is a dispute in relation to the circumstances concerning all charges (bar the drug charges) such that a reasonable doubt arises as to the commission of the alleged offences. In relation to the two drug charges, in respect of which there is no reasonable doubt, the material does not support a finding of unsoundness of mind and I find that the defendant was not of unsound mind at the relevant time. [3] The issue that then arises is fitness for trial. The Court has reports from Drs Bourke, Arthur and Aboud. Dr Bourke and Dr Arthur were inclined to the view that there was because of the longevity of the defendant's symptoms primarily and because he appears to be treatment resistant, permanent unfitness for trial. Dr Aboud in his report was inclined to the view that the unfitness ought to be seen presently as a temporary unfitness. [4] Dr Aboud indicated he found the matter of fitness for trial a difficult one. He expressed some support for permanent unfitness, but he also continued to express reservations in relation to a concluded opinion that permanent unfitness can be confidently found at this stage. [5] I note in particular the very pertinent questions that were asked of him by the assisting psychiatrists which really go to highlight uncertainties relating to the appropriateness of the defendant’s medication regime and also the role of illicit substances in the continuation of the defendant's symptoms. Those matters raise issues which in my view cannot be dismissed as merely speculative. On the material before the Court, I cannot be satisfied that the defendant, who undoubtedly is presently unfit for trial, should be seen as permanently unfit. I note the considerable benefit that I have had from the input of both the assisting psychiatrists on that matter. [6] In the circumstances, I find that the defendant is unfit for trial, but that the unfitness is of a temporary nature. A forensic order is mandated in those circumstances. It is appropriate, therefore, to order that the defendant be detained in the Sunshine Coast Network Authorised Mental Health Service. [7] I note the useful advice of the assisting psychiatrists in terms of what limited community treatment is currently appropriate. Their advice, which I accept, is that currently escorted on and off the grounds of the hospital leave should be approved subject to the discretion of the authorised psychiatrist on the conditions contained in the submission that was provided today from the Director of Mental Health, with the addition of condition 4 of the previous submission amended to refer to the -- 2 of 3 -- 3 patient abstaining rather than refraining from using alcohol and illicit drugs and also requiring cooperation in testing for the detection of those substances. [8] In addition to escorted on and off the grounds of the hospital leave, there is also to be leave supervised by a responsible adult approved by the treating psychiatrist at the discretion of the treating psychiatrist. [9] I direct a copy of the transcript to be provided to the treating team. I also note the remarks made by Dr McVie and Dr Chalk about the recommendations and suggestions concerning the treatment regime that is perhaps indicated in this case. -- 3 of 3 --