Borchert, Re [2008] QMHC 9

MENTAL HEALTH COURT CITATION: Re Borchert [2008] QMHC 9 PARTIES: REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF DOUGLAS VIVIEN BORCHERT PROCEEDING: No 167 of 2007 DELIVERED ON: 16 May 2008 DELIVERED AT: Brisbane HEARING DATE: 16 May 2008 JUDGE: Dutney J ASSISTING PSYCHIATRISTS: Dr J Lawrence Dr E McVie FINDINGS AND ORDER: 1. That the defendant is permanently unfit for trial; 2. No forensic order made. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with three offences of indecently dealing with a child under the age of 14 years and one count of attempted incest – where reporting psychiatrists agree that defendant was unsound of the mind at the time of the commission of the offences – where defendant disputes having committed offences – whether defendant unsound of the mind at the time of committing offences – whether a forensic order should be made COUNSEL: Mr J Brigss for the defendant Mr J Tate for the Director of Mental Health Ms C Kelly for the Director of Public Prosecutions (Qld) SOLICITORS: Legal Aid for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) [1] DUTNEY J: The defendant has been charged with three offences of indecently dealing with a child under the age of 14 years and one count of attempted incest. [2] The charges - two counts of indecent dealing - were alleged to have been committed on the 28 th of May 1987 and the other two charges on the 31 st of December 1987. At that time the defendant was himself approximately 17 years of age. [3] The defendant has one conviction on his record. He was convicted in the District Court in Ipswich on the 18th of August 1988 of one count of indecently dealing with a boy under the age of 14 years and one count of carnal knowledge against the order -- 1 of 3 -- 2 of nature, both offences committed on the 25 th of September 1987, so that they fall between the dates of the two pairs of offences presently before this Court. [4] The evidence is uncontroversial. The defendant suffers from an intellectual disability which, in the opinion of Doctors Beech and Fama, make him permanently unfit for trial. [5] The defendant disputes having committed the offences and accordingly, there is reasonable doubt in relation to them, but having regard to the psychiatric evidence, I am satisfied that he is permanently unfit for trial. [6] The question arises as to whether a forensic order should be made. Such an order is sought by the Director of Public Prosecutions, but is opposed by counsel for the defendant and the submission from the Director of Mental Health is contra the making of such an order. [7] Section 4 of the Mental Health Act 2000 (Qld), sets out the purpose of the Act in the following terms: "The purpose of this Act is to provide for the involuntary assessment and treatment and the protection of persons, whether adults or minors, who have mental illnesses, while at the same time (a) safeguarding their rights and freedoms; and (b) balancing their rights and freedoms with the rights and freedoms of other persons". [8] The evidence does not support any finding of mental illness on the part of the defendant; rather, his unfitness for trial is related to his intellectual disability. Whenever a person is found to be unfit for trial, whether temporarily or permanently, the question of a forensic order arises and the Court is required to have regard, by Section 288, subsection 3, to the seriousness of the offence, the person's treatment needs and the protection of the community. [9] In my view, those criteria need to be considered in the light of the purposes of the legislation. In this case, on the evidence, the defendant does not require psychiatric treatment. Dr Fama, in recommending a forensic order, adds the following: "I accept that a forensic order, with limited community treatment, would be appropriate as a means of ensuring, as far as possible, some ongoing oversight. Community mental health facilities will probably protest that mental retardation is none of their business and that in any event, there is nothing they can do to treat the patient. Unfortunately, all forensic orders must specify an authorised mental health service as the means of detention or potential detention. The appropriate management agency, Disability Services Queensland, could upon consultation, one hopes, serve more or less as a de facto authorised mental health service". [10] Having regard to the history of a previous conviction for a like offence at about the same time and the nature of the offences alleged against the defendant, there is undoubtedly some concern about the defendant's unsupervised contact with children. In that respect, it is relevant that the defendant's six children have all been placed in care of the Director of Child Safety and the current position of twins apparently born recently is not known, but it seems to me that where a person has no mental health treatment needs, the making of a forensic order for a collateral purpose contrary to the purposes of the legislation, is not a proper exercise of the -- 2 of 3 -- 3 Court's discretion and accordingly, it seems to me that while it might be appropriate for some control to be placed over the defendant, it is not a control which is justified by the terms of the Mental Health Act. I should say that my conclusion that a forensic order should not be made in this case is consistent with the advice I have received from both of the assisting psychiatrists. [11] The finding, therefore, is that the defendant is permanently unfit for trial and no forensic order will be made. -- 3 of 3 --