Brosnan, Re [2006] QMHC 27

MENTAL HEALTH COURT CITATION: Re Brosnan [2006] QMHC 27 PARTIES: REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF DARREN PAUL BROSNAN PROCEEDING NO: No 0031 of 2005 DELIVERED ON: 10 February 2006 DELIVERED AT: Brisbane HEARING DATE: 10 February 2006 JUDGE: ASSISTING PSYCHIATRISTS: Holmes J Dr J F Wood Dr J Lawrence FINDINGS AND ORDER: 1. The defendant was not of unsound mind as defined in the Mental Health Act 2000 (Qld), Schedule 2 at the time of the alleged offences. 2. The defendant is fit for trial and the charges are to continue according to law. 3. The reports in this matter, together with a transcript of my remarks are to be made available to Mr Brosnan’s legal representatives for use in any subsequent criminal proceedings. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two counts of stalking and one count of committing an indecent act – whether defendant unsound of mind – whether defendant fit for trial Evidence Act 1977 (Qld), s 21A(1B) COUNSEL: C Morgan for the defendant J Tate for the Director of Mental Health C Kelly for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health The Director of Public Prosecutions [1] HOLMES J: Mr Brosnan is charged with stalking between the 1st of June 2004 and the 11th of August 2004, with an indecent act on the 11th of August 2004, and with stalking on the 18th of August 2004. -- 1 of 4 -- 2 [2] The allegations, in essence, are that he went repeatedly to a grocery store every day, it seems, for a couple of months and hung around the store staring at a shop assistant. On one occasion, the 10th of August, he went to the extent of following that worker home, driving behind her car. Although she took a relatively complicated route she found him still in pursuit. It is said, then, that on the 11th of August, the following day, he was seen masturbating in long grass in an area of public parkland near a neighbour’s house. The police officers apprehended him near the scene. [3] The issues here are both unsoundness and fitness for trial. Dr Colls and Dr Beech have both reported. Dr Colls in the first instance in his report pointed to Mr Brosnan having a mild mental retardation and an adjustment disorder. Here he said, because of some difficulty in establishing that the events leading to an adjustment disorder and the disorder itself were contemporaneous with the alleged offences, he placed less focus on that aspect and more on the mental infirmity. [4] Dr Colls in his report considered that the capacity of which Mr Brosnan was deprived was that of control; but I think it is fair to say that he did shift ground here to say that while that capacity would have been impaired, it was really the capacity to know that he ought not do the act which was the one of which he was deprived but, I think, he also said in response to a question from Dr Lawrence that Mr Brosnan was deprived of the capacity to understand what he was doing. [5] Like Dr Wood and Dr Lawrence, I prefer Dr Beech’s analysis. Dr Beech has said that while Mr Brosnan’s capacities were undoubtedly impaired at the relevant time, particularly the capacity to know he ought not do the act, there are a number of features which would suggest that he was not completely deprived of that capacity. [6] Dr Beech points out that his functioning has actually been quite good; that he has some independent living skills and has lived in a flat for a period of time with flatmates. He can drive. And he gave some examples of interchanges between himself and Mr Brosnan which would suggest a capacity of understanding and responsiveness. In particular, Dr Beech pointed to the fact that Mr Brosnan has previously encountered authority in the context of indecent exposure and admissions to hospital in relation to behaviours including exhibitionism and stalking. It is not as if he has lived in a vacuum in relation to an appreciation of what he can and can not do. [7] Dr Beech concluded that he was not, as I say, deprived of the capacity to know he ought not do the act. The behaviours, he said, sounded like controlled behaviours; and he pointed out that Mr Brosnan hadn’t acted on his sexual urges when he was at home or when he was admitted to hospital. [8] I find that analysis compelling. The context of the offending and Mr Brosnan’s background, as well as the level of his intellectual capacity which is not profoundly impaired, suggests to me that he would not have been completely deprived of any of the three capacities. Certainly they would have been impaired. [9] I find, therefore, that he was not of unsound mind at the time the offences were allegedly committed. -- 2 of 4 -- 3 [10] That leads to the question of fitness for trial. I agree with Mr Vasta that this is probably the more difficult area. Doctor Beech has expressed his views in that regard as to Mr Brosnan’s ability to understand the nature of the charge, to plead to the charge, to understand the nature of proceedings, to follow the course of the proceedings, and to understand the effect of the evidence and to make a defence or answer the charge, and in each case, gives an affirmative answer. He says that the major concern may be in cross-examination, which could cause difficulty. If Mr Brosnan becomes flustered he needs simple straightforward questioning and some assurance that he has understood the question. [11] Dr Colls, I should say, did not think he was fit for trial. But that was a departure from Doctor Colls’s actual report, in which he thought he was fit for trial. What had made the difference was the report of Dr Wells, a psychological report. In explaining what about that report was fundamental in his change of view, Dr Colls pointed, essentially to the fact that Mr Brosnan had been rather vague with Dr Wells, as opposed to being able to answer better with him. That did not really explain to me his change in view, I must say; that did not seem to me a significant reason for a reversal of view. [12] It is clear from Dr Wells’s report that there are some problems in verbal functioning. I agree with Dr Beech, though, that it is probably what he describes as the adaptive functioning, that is more significant in the trial context. [13] Mr Vasta has pointed out that Mr Brosnan can be treated as a special witness under section 21(A) of the Evidence Act 1977 (Qld). That is correct. Section 21(A)(1B) provides that a person charged may be a special witness. In terms of what Dr Beech was recommending, that means that the Court could give directions about rest breaks, ensuring that questions are kept simple and time limited, even that the number of questions is limited. [14] So it does seem that any difficulties Mr Brosnan encountered in cross-examination, if that were to occur, could be largely met by a procedure such as that. I am not entirely convinced, in any event, that difficulties under cross-examination amount to a lack of an ability to meet one of the Presser requirements. [15] I am satisfied that Mr Brosnan can understand the nature of the charge and plead to it, and exercise the right of challenge as that is done in Queensland courts; that he does understand the nature of the proceedings; that he can follow the course of it; that he will understand the substantial effect of any evidence – albeit with some assistance and explanation from his counsel, but I think that is not a matter of great difficulty; and that he can make a defence or answer the charge. [16] Having said all that, I note two things: One, it is a matter of consensus that Mr Brosnan’s capacities to understand what he was doing to know that he ought not do the acts were substantially impaired, particularly, the capacity to know that he ought not do the acts. Secondly, Mr Vasta seemed to be making a tacit concession that he would qualify as a special witness, and so far as I have seen from the psychological report, it does seem abundantly clear that, were there to be a trial, he would meet the criteria for a special witness. [17] But, having reached the conclusions that I have, I direct that the charges proceed according to law. -- 3 of 4 -- 4 [18] I will order that the reports in this matter, together with a transcript of my remarks be made available to Mr Brosnan’s legal representatives for use in any subsequent criminal proceedings. -- 4 of 4 --