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  • Unreported Judgment

RRK v Queensland Police Service

 

[2019] QDC 176

DISTRICT COURT OF QUEENSLAND

CITATION:

RRK v Queensland Police Service [2019] QDC 176

PARTIES:

RRK

(Appellant)

v.

Queensland Police Service

(Respondent)

FILE NO/S:

DC 167/2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Townsville

DELIVERED ON:

18 September 2019

DELIVERED AT:

Townsville

HEARING DATE:

27 September 2018, 9 November 2018, 26 April 2019

JUDGE:

Lynham DCJ

ORDERS:

  1. Leave is granted to the appellant to adduce the evidence in the affidavit of Stephanie Louise Nicholas filed on 1 May 2019.
  1. The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION – PRACTICE AND PROCEDURE – Justices Act 1886 – section 222 – where the Mental Health Act 2016 confers on the Magistrates Court the power to dismiss criminal proceedings for simple offences if the person is of unsound mind or unfit for trial – where the appellant is charged with a number of simple offences – where the appellant made application in the Magistrates Court pursuant to s 172 Mental Health Act 2016 for the charges to be dismissed on the ground that she was of unsound mind – where application was dismissed – whether the Magistrate erred in not finding the appellant was of unsound mind when the offences were committed – whether the Magistrate erred in not making a finding the appellant was unfit for trial – where the appellant sought to adduce further evidence as to her psychiatric condition – whether leave should be granted to adduce the further evidence

LEGISLATION:

Acts Interpretation Act 1954 (Qld) ss 14, 32AA

Criminal Code 1899 (Qld) ss 27, 28, 552BA

Justices Act 1886 (Qld) ss 4, 222, 223

Mental Health Act 2016 (Qld) ss 3, 6, 9, 22, 105, 107, 109, 111, 169, 171, 172, 177

Mental Health Bill 2015 (Qld) Explanatory Notes

Police Powers and Responsibilities Act 2000 (Qld) s 254

CASES:

Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269

Briginshaw v Briginshaw (1938) 60 CLR 336

Coulter v Ryan [2006] QCA 567

Dupas v The Queen (2010) 241 CLR 237

G v H (1994) 124 ALR 353

Gerlach v. Clifton Bricks Pty Ltd (2002) 76 ALJR. 828

Jago v District Court (NSW) (1989) 168 CLR 23

Kenneth Charles Rankin; Sunil Kumar; Benjamin James Sciortino [2017] QMHC 8,

Kesavarajah v R (1994) 181 CLR 230

Lucas v R (1970) 120 CLR 171

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mathews v Cabrera [2010] QCA 300

Mathews v Commissioner of Police [2011] QCA 368

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Owen v Cannavan [1995] QCA 324

Paulger v Hall [2003] 2 Qd R 294

R v Chester [1982] Qd R 252

R v LR [2005] QCA 368

R v M [2002] QCA 464

R v Michaux [1984] 2 Qd R 159

R v Presser [1958] VR 45

R v Rivett (1950) 34 Cr App R 87

R v Rodriguez [2010] NSWSC 198

R v Schafferius [1987] 1 Qd R 381

R v Spina [2012] QCA 179

R v True (1922) 16 Cr App R 164

Re M’Naghten’s Case (1843) 10 Cl & Fin 200

Re News Corporation Ltd (1987) 70 ALR 419

Re SAM [2003] QMHC 003

Repatriation Commission v Smith (1987) 74 ALR 537

Schneider v Curtis [1967] Qd R 300

Taylor v R (1978) 22 ALR 599

The Queen v Glennon (1992) 173 CLR 592

United Petroleum Pty Ltd v Sargent [2019] QCA 146

Walton v Gardiner (1993) 177 CLR 378

COUNSEL:

T. Schmitt and F. Richards for the Applicant

M. O’Brien for the Respondent

SOLICITORS:

Legal Aid Queensland for the Applicant

Queensland Police Service for the respondent

Background

[1] The appellant is charged with the following eight offences:

Offence

Offence date

Public nuisance

12 June 2017

Serious assault

20 June 2017

Public nuisance

20 June 2017

Assault or obstruct police

13 February 2018

Contravene direction

8 March 2018

Enter dwelling and commit indictable offence

17 March 2018

Assault occasioning bodily harm

17 March 2018

Common assault

17 March 2018

[2] The appellant has had a long history of mental illness. Arrangements were made by the appellant’s legal representatives for her to be assessed by a psychiatrist for the purpose of determining whether she may have been of unsound mind at the time of her offending and her fitness for trial. That assessment was undertaken by Dr Bayley, a psychiatrist. Based upon Dr Bayley’s report, on 12 June 2018 the appellant appeared in the Longreach Magistrates Court at which time an application was made on her behalf pursuant to s 177(2) Mental Health Act 2016 (“MHA”) for the eight charges to be dismissed on the basis that the appellant was of unsound mind when she committed each of the offences. The Magistrate refused the application. The appellant now appeals that order.

Grounds of appeal

[3] The appellant asserts that the Magistrate erred in refusing the application to dismiss the charges on two grounds, namely:

  1. In finding that the appellant was not of unsound mind when the offences were allegedly committed;
  2. In not making a finding that the appellant was unfit for trial.

Power of the Magistrates Court to dismiss a complaint under s 172 Mental Health Act

[4] S 172 MHA confers on the Magistrates Court the jurisdiction to deal with questions of unsoundness of mind and fitness for trial where a defendant has been charged with a simple offence. The section provides:

172  Power to dismiss complaint - unsound mind or unfitness for trial

  1. This section applies if -
  1. a complaint for a simple offence is to be heard and determined by a Magistrates Court; and
  2. the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence -
  1. was, or appears to have been, of unsound mind when the offence was allegedly committed; or
  2. is unfit for trial.
  1. The court may dismiss the complaint.

Note - See the Justices Act 1886, section 222 in relation to appeals to a District Court judge from an order made in a summary way on a complaint for an offence.”

[5] S 172 MHA mirrors s 22 MHA in conferring jurisdiction on the Magistrates Court to dismiss a complaint for a simple offence in respect to a defendant who is of unsound mind or unfit for trial:  

22  Magistrates Courts

  1. A Magistrates Court may dismiss a complaint for a simple offence if the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence was, or appears to have been, of unsound mind when the offence was allegedly committed or is unfit for trial.”

[6] The term “simple offence” carries the same meaning as that contained in the Justices Act 1886 (Qld) (“JA”): s 171 MHA. S 4 JA defines “simple offence” to mean:

“any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise.”

[7] The MHA received assent on 4 March 2016 and commenced on 5 March 2017 replacing the Mental Health Act 2000. One of the purposes for the introduction of the MHA was to address perceived deficiencies in the existing legal framework for dealing with defendants charged with relatively minor criminal offences who suffer from serious mental illness. Reflecting this purpose, the MHA identifies as one of its main objects enabling persons to be diverted from the criminal justice system if they are found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial.[1]

[8] Prior to the enactment of the MHA the Magistrates Court had no jurisdiction to dismiss charges involving a defendant who was of unsound mind when they offended or was unfit for trial. In explaining the purpose for conferring jurisdiction on the Magistrates Court to dismiss certain charges committed by a defendant who was of unsound mind or unfit for trial, the Mental Health Bill 2015 Explanatory Notes[2] state:

Magistrates Courts

The Bill rectifies a deficiency in the current legal framework in Queensland, by expressly enabling magistrates to discharge persons who appear to have been of unsound mind at the time of an alleged offence or are unfit for trial. This only applies to proceedings that magistrates may determine. Magistrates may also order that a person be examined in an authorised mental health service to decide if a treatment authority should be made for the person or to make recommendations about the person’s voluntary treatment and care.

Magistrates will also be able to refer indictable offences to the Mental Health Court where it appears there may be grounds for the Court to make a forensic order or treatment support order for the person.”

[9] The second reading speech of the responsible Minister also explained the purpose in conferring jurisdiction on the Magistrates Court to deal with defendants who are of unsound mind or unfit for trial:

“The bill includes significant improvements from the Mental Health Act 2000. I am pleased that the bill addresses a deficiency in the legal system in relation to actions that magistrates may take where a person appears of unsound mind at the time of an alleged offence or is unfit for trial. The bill provides that magistrates may dismiss charges in these circumstances. These provisions apply to persons with a mental illness, an intellectual disability or another mental condition. I would like to acknowledge the advocacy of Mr John and Mrs Collein Avery who are present today. They have sought improvements in the legal system in this state to prevent vulnerable individuals from being unfairly found guilty of minor offences. This bill responds directly to these concerns by giving magistrates a clear power to dismiss a charge if a person is not fit for trial.”[3]

[10] To facilitate that purpose, the MHA has brought about two substantive changes to the 2000 Act relevant to this appeal. First, it has more narrowly defined the types of offences which can now be referred to the Mental Health Court (“MHC”)[4] to offences defined as “serious offences”[5] and “associated offences.”[6] Secondly, it now confers on the Magistrates Court jurisdiction to determine issues of unsoundness of mind and fitness for trial involving defendants charged with less serious offences defined as “simple offences”: s 172 MHA.[7] Accordingly, to address what were identified as deficiencies in the 2000 Act, where a defendant comes before the Magistrates Court charged with a “simple offence”, s 172 MHA now confers on a Magistrate the power to dismiss a charge when satisfied that the defendant was of unsound mind when they offended or is unfit for trial.

Reasonably satisfied

[11] The degree of satisfaction required to exercise the power to dismiss a charge under s 172 MHA is expressed to be “reasonably satisfied, on the balance of probabilities”. The term “reasonably satisfied” is not defined in the MHA itself. It was however defined in the 2000 Act rather unhelpfully to mean “satisfied on grounds that are reasonable in the circumstances”. That definition was not imported into the MHA. It should be noted however that the 2000 Act did not contain any provision similar to s 172 MHA nor did it otherwise confer on the Magistrates Court any power to dismiss a charge similar to that contained in s 172 MHA. Moreover, the exercise of the powers which were qualified by the term “reasonably satisfied” in the 2000 Act were what could be considered perfunctory in nature. In my view the definition of “reasonably satisfied” in the 2000 Act is of no assistance when defining the term where it is used in the MHA.

[12] Although not defined in the MHA, the term “reasonably satisfied” is one that is commonly used to prescribe the exercise of a power contained in a statute and it is an expression which is said to have a settled meaning in a curial context.[8] In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 362, in explaining the requirement that a decision maker be reasonably satisfied, observed:

“It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

[13] The Briginshaw approach was considered by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, where the plurality again emphasised that:[9]

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.” (citations omitted) 

[14] Whilst the reasonable satisfaction required to make one of the findings under s 172 MHA is expressed to be on the civil standard of on the balance of probabilities, as was explained by the High Court in G v H (1994) 124 ALR 353 at 362:[10] 

“It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that  “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'’. Thus, if there is an issue of “importance and gravity”’, to use the words of the trial judge, due regard must be had to its important and grave nature.”

[15] Although in a different statutory context, Keane JA in R v LR [2005] QCA 368 observed at [44] in respect to the term “reasonably satisfied” as contained in s 254 Police Powers and Responsibilities Act 2000 (Qld) that:

“If a person is to decide that he or she is "reasonably satisfied" as to something it means that there must have been evidence available to him or her which can objectively be seen to support the decision that has been reached. A person may still be “reasonably satisfied” about a matter despite it being possible for another person to reach a different view based on the same material. As North J said in a slightly different context in Doyle v City of Glasgow Life Insurance Co, “reasonable persons may reasonably take different views”. It is only if there is no evidence that could reasonably be seen to support a particular conclusion that it is possible to conclude that the original decision-maker was not “reasonably satisfied”. (citations omitted)

[16] It is of course trite to observe that the degree of satisfaction required where the exercise of a power is dependent on a decision-maker being “reasonably satisfied” does not entail a higher or different standard than on the balance of probabilities. Nevertheless, as was emphasised in Briginshaw and has been in later decisions, the cogency of the evidence which will be required to establish, as well as the gravity of the consequences flowing from, a particular finding will be important and relevant considerations for a decision-maker when determining whether a particular finding has been established on the balance of probabilities.

[17] An order dismissing a charge under s 172 MHA will have the same consequence as an order permanently staying a criminal proceeding. It has long been held that ordering a permanent stay of a criminal proceeding as an abuse of process is a “drastic remedy” to be confined to a case that is “exceptional”[11] or “extreme”[12] because there is a “legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”[13] and that “a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an “irremovable cloud of suspicion” and leaving the potential if not the likelihood of engendering within the community ‘a festering sense of injustice’, if not cynicism”.[14] The discretion conferred under s 172 MHA to dismiss a charge is a broad one. This is made clear from the terms of the section itself which predicates the exercise of the discretion to dismiss a charge on the court being “reasonably satisfied, on the balance of probabilities”. The power to permanently stay a criminal proceeding as an abuse of process is not, in my view, analogous to the power to dismiss a charge under s 172 MHA and it would be erroneous to interpret the section as permitting the court to dismiss a charge only in exceptional or extreme circumstances. Such a restrictive interpretation would be inconsistent with the terms of the section itself as well as the purpose for which s 172 MHA has been enacted.

[18] Nevertheless what the principles relating to the granting of a permanent stay do draw attention to is the public interest in those who have been charged with criminal offences being prosecuted as well as the potential for confidence in the administration of justice being undermined where a defendant is able to avoid prosecution when charges are not proceeded with. The practical effect of dismissing a charge under s 172 MHA is that a defendant will be immune from further prosecution. There may also be other consequences. For example a victim of an offence may be deprived of an order for compensation or providing a victim impact statement.[15] Whilst it might be accepted that the dismissal of charges under s 172 MHA will often involve relatively minor offences, the public interest in a defendant charged with a simple offence being prosecuted and punished for their offending should not, because of that, be regarded as less important than where the defendant is charged with a serious offence. For that reason, reasonable satisfaction on the balance of probabilities that a defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial will necessarily require a court to consider the consequences which will flow from the court exercising the power dismissing a charge under s 172 MHA. 

[19] However, a more relevant consideration to the exercise of the discretion contained in s 172 MHA relates to the cogency of the evidence required to reasonably satisfy a court on the balance of probabilities either that a defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial. The approach developed by the MHC is that a finding that a defendant was of unsound mind when they offended or is unfit for trial should ordinarily be made “only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding”[16], although it will not be necessary that such a finding be made only in the clearest of cases.[17] As explained below, although the procedure in the MHC for determining questions of unsoundness of mind or fitness for trial is more rigorous than that which s 172 MHA contemplates, nevertheless it would be expected that the power to dismiss a charge under s 172 MHA would also be exercised only where there was clear and convincing evidence that a defendant was of unsound mind when they offended or is not fit for trial. 

Unsoundness of Mind – simple offences

[20] Turning then to what a court must be reasonably satisfied of in order to exercise the discretion conferred under s 172 MHA to dismiss a charge. The first limb of s 172(1)(b) MHA is plain in its terms, requiring the court to be reasonably satisfied, on the balance of probabilities, that a defendant “was, or appears to have been, of unsound mind” when they are alleged to have committed the offence. S 109 MHA defines the term “unsound mind” to mean:

109 Meaning of unsound mind

  1. Unsound mind means -
  1. a state of mental disease or natural mental infirmity described in the Criminal Code, section 27(1); or
  2. a state of mind described in the Criminal Code, section 28(1) for which the Criminal Code, section 27(1) applies to a person.
  1. However, unsound mind does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”

[21] It will be obvious from this definition that the term “unsound mind” is defined by reference to s 27(1) Criminal Code 1899 (Qld). That section provides:

 27 Insanity

  1. (1)
    A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.”

[22] The first question which arises is does the definition of “unsound mind” contained in s 109 MHA also apply to s 172 MHA? In my view the short answer is yes. S 109 MHA is contained in Chapter 5 of the Act. Chapter 5 contains the procedures for the referral to the MHC of persons who are charged with serious offences.[18] S 172 MHA on the other hand is contained in Chapter 6 of the Act. Chapter 6 sets out “the powers for Magistrates Courts, the District Court and the Supreme Court to deal with cases where there is a concern about the mental state of a person charged with an offence, including by making a reference to the Mental Health Court”.[19] That the definition of “unsound mind” in s 109 also applies to Chapter 6 MHA, including s 172, is made clear in my view by s 9 MHA. S 9 states that “the dictionary in schedule 3 defines particular words used in this Act”. The term “unsound mind” is defined in schedule 3 to mean “see section 109”. As a basic tenet of statutory interpretation, “a definition in or applying to an Act applies to the entire Act”.[20] In light of the clear and express words of s 9 MHA that the meaning of particular words used in the Act are defined in schedule 3, and given that the term “unsound mind” is defined in schedule 3 by reference to s 109 MHA, there is no basis for concluding that the term “unsound mind” in s 172 MHA is to be given a different meaning to that contained in s 109.  

[23] For completeness, it should also be noted that under the repealed Mental Health Act 2000, “unsound mind” was defined to mean “the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.” A comparison between that definition and the definition in s 109 MHA shows that the definition is identical save that the MHA now also extends the definition of “unsound mind” to include in s 109(1)(b) “a state of mind described in the Criminal Code, section 28(1) for which the Criminal Code, section 27(1) applies to a person” and thus now makes clear that it also includes a person whose mind is disordered by unintentional intoxication or stupefaction.  

[24] Accepting that the definition of “unsound mind” for purposes of s 172 MHA is the same as that contained in s 109 MHA, the discretion to dismiss a charge under s 172 will be exercisable only when a Magistrate is reasonably satisfied, on the balance of probabilities, that a defendant “was, or appears to have been” “in a state of mental disease or natural mental infirmity” as to deprive them of one of the capacities in s 27(1) Criminal Code. Two of the capacities referred to in s 27, the capacity to understand what the person is doing and the capacity to know that the person ought not do the act, are generally regarded as corresponding with the two capacities referred to in the M’Naghten Rules.[21] These are sometimes described as “the cognitive capacities”.[22] There is a third capacity referred to in s 27, the capacity to control the person’s actions, which is sometimes described as “the volitional capacity”.

[25] When a court is required to determine whether a charge should be dismissed under s 172 MHA, the focus will be on whether the defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial. As to the first of these, having regard to the term “unsound mind” being defined in s 109 MHA to mean a state of mental disease or natural mental infirmity described in s 27(1) Criminal Code, the test to be applied in determining whether the discretion should be exercised under s 172(1)(a) may be expressed as follows: Is the court reasonably satisfied that at the time of committing the offence, the defendant was, or appears to have been, more probably than not, suffering from a mental disease or natural mental infirmity which deprived the defendant of one of the relevant capacities contained in s 27(1) Criminal Code. If the court were not so satisfied then the discretion contained in s 172 MHA could not be exercised.

Unfit for trial – simple offences

[26] The term “unfit for trial” is not defined in the MHA. In the 2000 Act the term “fit for trial” was defined in the schedule to mean “fit to plead at the person's trial, and to instruct counsel, and endure the person's trial with serious adverse consequences to the person's mental condition unlikely”. Fitness for trial is a concept which is well understood at law. Generally speaking, a person will be fit for trial if they can understand that they are on trial and what that means and they can understand the evidence led by the prosecution in support of the charge so that they can respond to the evidence.

[27] For purposes of s 172(1)(ii) MHA, in the absence of any statutory definition the question whether a defendant is unfit for trial for purposes of s 172 MHA should be decided in accordance with the criteria in R v Presser [1958] VR 45, including a defendant’s ability to:

  1. (1)
    understand the nature of the charge;
  2. (2)
    plead to the charge and to exercise the right of challenge;
  3. (3)
    understand the nature of proceedings namely that it is an inquiry as to whether the defendant committed the offence charged;
  4. (4)
    follow the course of proceedings;
  5. (5)
    understand the substantial effect of any evidence that might be given in support of the prosecution; and
  6. (6)
    to make a defence or answer the charge.

[28] The criteria propounded in Presser for determining fitness for trial have been subsequently approved by the High Court in Kesavarajah v R (1994) 181 CLR 230[23] and with respect to the 2000 Act, by the Court of Appeal in R v M [2002] QCA 464.

Cogency of the evidence required to dismiss a charge under s 172 MHA

[29] Whilst insanity is a question of fact to be determined by the decision maker[24] and it has long been accepted that medical evidence may not always be essential to establish a defence of insanity under s 27 Criminal Code[25], it would be exceptional for such a determination to be made without expert medical evidence on the point.[26] This is recognised under the MHA with respect to referrals to the MHC which must be accompanied by a psychiatric or clinical report relating to the defendant.[27] Whilst it might be accepted that the procedure for determining questions of unsoundness of mind and fitness for trial in the MHC is a more rigorous one than that required to be undertaken by the Magistrates Court under s 172 MHA, nevertheless it is difficult to envisage circumstances in which the Magistrates Court could ever dismiss a charge under s 172 MHA in the absence of evidence from a suitably qualified medical practitioner demonstrating that a defendant was, or appears to have been, suffering from a mental disease or natural mental infirmity which probably deprived him of one of the capacities contained in s 27(1) Criminal Code or is unfit for trial.

[30] Magistrates Court Practice Direction 1 of 2017 sets out the procedure in the Magistrates Court for determining whether a charge should be dismissed under s 172 MHA. The practice direction permits a determination to be made under s 172 MHA on what it refers to as a Mental Health Assessment. The term “Mental health Assessment” is not a term contained in the MHA. In the practice direction the term is defined to mean “a report prepared by a Senior Mental Health Clinician with the support of a Consultant Psychiatrist” including various Court Liaison Feedback documents.

[31] I note that a Mental Health, Fitness and Soundness Assessment Court Liaison Service Report dated 26 February 2018 had been prepared in respect to the appellant by a clinical nurse. That report assessed the appellant as being unfit for trial but made no assessment as to whether the appellant was of unsound mind when she offended. The report indicates that it had been reviewed by a psychiatrist although it is unclear as to what involvement, if any, a psychiatrist had either in assessing the appellant or in the preparation of the report. I mention this Court Liaison Service Report because, in my view, the opinion of a clinical nurse that a defendant was of unsound mind when they offended, or is unfit for trial, is not an opinion that a court should act upon when determining an application under s 172 MHA in the absence of clear evidence that the opinion being proffered by the clinical nurse has been reviewed by and concurs with that of the reviewing psychiatrist.

[32] Whilst it can be accepted that the procedure for determining questions of unsoundness of mind or fitness for trial is intended to be less rigorous in the Magistrates Court for determining applications under s 172 MHA, nevertheless that less rigorous process does not obviate the need for any determination as to a defendant’s unsoundness of mind or fitness for trial to be made by a suitably qualified expert. A clinical nurse does not, in my view, possess the expertise to be able to proffer an expert opinion as to whether a defendant was of unsound mind when they offended or is unfit for trial by reason that they would not possess the specialised knowledge based on their training, study or experience[28] to qualify them as an expert in diagnosing and determining such matters. This is implicitly borne out by the Chief Psychiatrist Practice Guidelines issued by Queensland Health to the Court Liaison Service (CLS), which states at paragraph 4.1:

 “Due to the requirements of the Magistrates Court in relation to evidence and witness testimony, CLSPs employed within the CLS at Nurse Grade 6 or Health Practitioner Level 3, or lower, may not provide advice to the Magistrates Court in relation to fitness for trial or soundness of mind.”

[33] An assessment as to whether a defendant was of unsound mind when they offended or is unfit for trial will necessarily have to be undertaken by a psychiatrist or other suitably qualified expert. Unless there is evidence that an opinion expressed by a clinical nurse in a Court Liaison Services Report that a defendant was of unsound mind or is unfit for trial is based upon an assessment and determination made by a psychiatrist or other suitably qualified expert, then it is difficult to see how a court could act on the opinion for purposes of determining an application under s 172 MHA in the absence of other evidence supporting such a finding.

[34] What the practice direction also recognises is the right of a party to challenge the contents or opinions expressed in a Mental Health Assessment. This is an important right especially given the serious consequences which will flow from a decision to dismiss a charge under s 172 MHA.

[35] The practice direction does not purport to cover the field with respect to disposing of matters under Chapter 6, Part 2 MHA. Whilst it contemplates such determinations being made in reliance upon the contents and opinions contained in a Mental Health Assessment, that does not preclude the court from receiving expert medical evidence as to a defendant’s mental health from other sources. For example, as was the case here, a defendant is at liberty to adduce their own expert medical evidence in support of an application under s 172 MHA. However, regardless of the source of the expert medical opinion concerning a defendant’s mental health, the prosecution will be entitled to challenge any such opinion which would extend to requiring an expert witness to give evidence if necessary.

[36] Of course, whilst a court is not bound to accept the opinions of medical witnesses, where there is unanimity in medical opinion as to a defendant’s mental state and where there is no other evidence which displaces or casts doubt on that medical opinion, then in those circumstances that evidence should not be rejected.[29] The practice direction accords with this principle by permitting a Magistrate to dismiss a charge based upon a Mental Health Assessment which is not disputed, although that does not absolve a Magistrate from the need to be reasonably satisfied, on the balance of probabilities, that the undisputed assessment provides sufficiently clear and cogent evidence permitting a finding that the defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial. 

The application before the Magistrate

[37] Application was made on behalf of the appellant pursuant to s 172 MHA seeking an order that the charges preferred against the appellant be dismissed on the ground that she was of unsound mind at the time of her offending. The application was supported by a Mental Health, Fitness and Soundness Assessment dated 26 February 2018 prepared by a clinical nurse as well as a report provided by Dr Bayley, a psychiatrist, who had examined the appellant for purposes of assessing her mental state at the time of her offending and her fitness for trail.

[38] Dr Bayley confirmed in her report that for purposes of preparing her report she had been provided with a copy of the police QP9 documents relating to the appellant’s charges, the appellant’s criminal history as well as the Court Liaison Service report prepared by the clinical nurse. Dr Bayley conducted a 90 minute consultation with the appellant prior to preparing her report. She expressed the opinion that the appellant suffered from a mental disease and natural infirmity of schizophrenia with co-morbid post-traumatic stress disorder, dissociative disorder and somatic symptom disorder. Dr Bayley expressed the opinion that it was possible the appellant had an acquired brain injury although this would need to be further investigated. Most relevant to the present application, when asked to express an opinion as to whether the appellant was of unsound mind when she offended, Dr Bayley opined:

“It is my opinion that [the appellant], based upon her presentation during my assessment and the information in the material provided, was likely to have been of unsound mind at the time of all the alleged offences. I believe that it was likely that she was suffering from an untreated psychotic illness (schizophrenia) at the time of these offences, that caused her to be deprived of the capacity to understand that she ought not do the acts and the capacity to control her actions. I have no evidence before me that this deprivation of her capacities was due to intentional intoxication.  

[39] As to fitness for trial, Dr Bayley opined:

“I believe [the appellant] may be temporarily unfit for trial due to her current level of psychotic disorganisation of thought. If she receives appropriate mental health treatment she may be fit for trial at a later date. She appeared to have a basic understanding of the Court process and the underlying cognition appeared to be relatively intact. However she was quite disorganised in thought and regressed in behaviour and would need significant support from her Counsel to currently be fit for trial.”  

[40] In the course of submissions the appellant’s legal representative made clear that the basis of the application related only to whether the appellant was of unsound mind when she offended. It was expressly conceded on behalf of the appellant that the application did not rely upon the appellant being unfit for trial. It was submitted that having regard to the opinion expressed by Dr Bayley the court would be satisfied the appellant was of unsound mind when she offended and that the charges should be dismissed pursuant to s 172 MHA.

[41] The appellant’s application was opposed by the prosecution. A number of concerns regarding Dr Bayley’s report were raised by the prosecution. In the course of submissions the Magistrate expressed concerns that Dr Bayley’s report had assessed the appellant’s offending globally and that it appeared that Dr Bayley may not have been aware as to the appellant’s circumstances at the time of her offending. The Magistrate noted that a previous application had been made on behalf of the applicant to have the charges dismissed which was refused by a different Magistrate. In her reasons for dismissing the application, the Magistrate noted that the appellant had a lengthy criminal history which included offences of violence for which she had received sentences of imprisonment. The Magistrate dismissed the application finding that she was not satisfied, on the balance of probabilities that the appellant was of unsound mind when she committed the offences. The effect of the Magistrate’s findings was that the application under s 177 MHA was refused.     

Whether an appeal can be brought against the Magistrate’s order?

[42] The appeal is brought under s 222 Justice Act 1886 (Qld) (“JA”). Section 222(1) JA provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

[43]  S 4 JA defines “order” for purposes of s 222 in the following terms:

"order" includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence.

[44] An issue raised on this appeal is whether the order of the Magistrate refusing the appellant’s application to dismiss the charges is an order capable of being appealed under s 222 JA. I invited further submissions from the parties on this point. What is an “order” for purposes of s 4 JA capable of being appealed under s 222 has been the subject of judicial consideration. In Schneider v Curtis [1967] Qd R 300, which involved an appeal against a ruling by a Magistrate that the appellant had a case to answer, in dismissing the appeal, Gibbs J explained at 304-305:

“The question we have to decide is whether an appeal under s. 222 of the Justices Acts lies in the present case. That section gives a right of appeal not from any order but only from “any order made…. upon a complaint for an offence or breach of duty.” The section does not give a right of appeal from any order made in proceedings commenced by a complaint but only from “an order made upon a complaint.” These words (which are similar to the words of the definition of “order” originally contained in s. 4 of The Justices Act of 1886, whose effect was discussed by Griffith C.J. in Castlemaine Brewery and Quinlan Gray & Co. Brisbane Limited v. Callings Ex parte Ceilings (1896) 6Q.L.J.273, at p. 275) in my opinion refer to an order disposing of the complaint itself and do not include an order upon an application made during the course of the proceedings instituted by the complaint.”

[45] The reasoning of Gibbs J in Schneider has continued to be followed as authority for the proposition that s 222 JA confers a right of appeal to the District Court only in respect to an order which disposes of a complaint. Thus in in Owen v Cannavan [1995] QCA 324 the Court of Appeal, following the reasoning of Gibbs J in Schneider, dismissed an application for leave to appeal an order made by a Magistrate refusing to remit summary proceedings from the Magistrates Court at Brisbane to the Magistrates Court at Gympie, the court concluding at 3-4:

“The Full Court in Schneider, after reviewing the authorities, concluded that an appeal under s 222 of The Justices Act lay only from an order disposing of a complaint, for example, by dismissing it or entering a conviction and imposing a penalty and did not lie from an order made during the course of the proceedings.

It had been submitted in Schneider at the close of the complainant's case that the respondent had no case to answer. The magistrate ruled to the contrary and the proceedings were adjourned for the respondent to appeal pursuant to s 222. The Full Court had regard to the definition of “order” in s 4 and to the terms of s 222. As a matter of construction it confined the application of s 222 to an order "made upon complaint" and held that the section did not give a right of appeal from a decision or ruling made on an incidental application during the hearing of the complaint, even if that decision or ruling came within the definition of "order" because there was no order made "upon a complaint", that concept being held to be referrable to the determination of a complaint. The court referred, in support of its construction, to the prospect of the constant interruption of proceedings so interlocutory orders could be the subject of appeal.”

[46] The reasoning of Gibbs J in Schneider has been upheld in subsequent decisions of the Court of Appeal.[30] In Paulger v Hall [2003] 2 Qd R 294, Holmes J (as the Chief Justice then was) held at 300-301 that Schneider was “authority for the proposition that no appeal lies under s 222 JA from a ruling made on an incidental application during the hearing of the complaint” because the words “any order made… upon a complaint… refer to an order “disposing of the complaint itself’”.” In so concluding, her Honour referred both to the construction question addressed in Schneider as well as policy grounds which prohibit the bringing of appeals under s 222 JA against interlocutory rulings. As her Honour observed “Such appeals may lead to fragmentation of the criminal process, may in the long run prove to have been pointless, and are capable of being misused to exhaust the resources of a less well-heeled opponent.”[31] Her Honour also observed that an appellant may in an appeal against a final judgment properly raise the issue of the correctness of an interlocutory order “which affected the final result”.[32]

[47] Here the question therefore is whether the order of the Magistrate refusing the appellant’s application under s 172 MHA is an “order” for purposes of s 222 JA capable of being appealed. That question is to be answered by reference to the reasoning of Gibbs J in Schneider and the subsequent decisions referred to which I am of course bound to follow. As those authorities make clear, an appeal to the District Court under s 222 JA is competent only where the order appealed disposes of the complaint itself.

[48] The appellant contends that s 222 JA should be interpreted as permitting an appeal against an order of a Magistrate dismissing an application under s 172 MHA. The appellant points to one of the principal objects of the MHA as enabling persons who are of unsound mind or unfit for trial to be diverted from the criminal justice system and that it would run contrary to the objects of the Act were a defendant not allowed to appeal an order refusing an application under s 172 MHA where there is evidence that they may have been of unsound mind when they offended or are unfit for trial. To interpret s 222 JA as precluding an appeal by a defendant against an order refusing to dismiss a charge under s 172 MHA would then necessitate a defendant having to either plead guilty or proceed to trial in order for the complaint to be finalised and thus permit an appeal against the order. This it is submitted, defeats the more simplified process contemplated under the MHA for dealing with applications under s 172 MHA. It is further argued that precluding an appeal would be an absurdity in circumstances where there is clear evidence that a defendant is unfit for trial and therefore may not be capable of providing instructions to their legal representative necessitating their withdrawal from representing the defendant.

[49]  In my view an order made under s 172 MHA refusing a defendant’s  application to dismiss a charge is obviously not a final determination of the charge and therefore does not dispose of a complaint. It is more properly characterised as an interlocutory order by reason that a refusal of an application to dismiss a charge is not determinative of the charge. Where a defendant’s application to dismiss a charge is refused, the result will be that the charge is to be heard and determined by the court in the ordinary way. A defendant, even if unsuccessful in having a charge dismissed under s 172 MHA, will not be precluded from relying upon the same evidence to raise a defence under s 27 Criminal Code if the evidence is capable of supporting such a defence. As to the capacity of a defendant to give instructions if there is evidence that the defendant is not fit for trial, a court will have determined a defendant’s fitness for trial as part of any application under s 172 MHA if the evidence raises that. If it is determined that a defendant is fit for trial, noting the degree of satisfaction imposed under s 172 MHA to find otherwise, it is difficult to imagine circumstances where on the same evidence a defendant would not be competent to provide instructions.

[50]  In any event, the reasoning of Gibbs J in Schneider is clear. If an order does not dispose of a complainant itself then it is not an order capable of being appealed under s 222 JA. Having regard to the interlocutory nature of an order made under s 172 MHA refusing a defendant’s application to dismiss a charge, the authorities make clear that no appeal under s 222 JA lies from such an order. The appellant is therefore precluded from appealing the order of the Magistrate refusing her application. 

[51] For completeness, s 172 MHA contains the following note:

   “Note - 

See the Justices Act 1886, section 222 in relation to appeals to a District Court judge from an order made in a summary way on a complaint for an offence.”

[52] A note such as that contained in s 172 MHA is to be regarded as part of the Act[33] and may permissibly be used as an aid to interpreting the section.[34]  

[53] The reference in the note contained in s 172 MHA to s 222 JA in relation to appeals to the District Court from an order made in a summary way on a complaint for an offence does not, in my view, alter my conclusion that the appellant’s appeal against the order of the Magistrate is incompetent. The note does not have any bearing on the construction of the term “order” for purposes of s 222 JA as explained by Gibbs J in Schneider. An appeal under s 222 JA from an order made under s 172 JA is only available where the order appealed against disposes of a complaint. In respect to s 172 MHA, had the Magistrate acceded to the appellant’s application and dismissed the charges, then in those circumstances the effect of that order would have been to dispose of the complaint and thereby have permitted the respondent to appeal the making of that order under s 222 JA. The note does not confer a right of appeal where an appeal is not permitted. Therefore my conclusion that the appellant’s appeal is incompetent by reason that the order sought to be appealed is interlocutory in nature and did not dispose of the complaint itself is not altered by the inclusion of the note in s 172 MHA.     

[54] Having concluded that the order of the Magistrate refusing the appellant’s application to dismiss the charges was not a final order, I find that the appellant’s appeal is incompetent and on that basis the appeal must be dismissed.

The appeal grounds

[55] If I am wrong in my conclusion as to the appellant’s appeal being incompetent as it is not an appeal against a final order, I turn then to the appellant’s substantive appeal. As noted at [3] above, the appellant appeals the dismissal of her application on two grounds. The second ground is that the Magistrate erred in not making a finding that the appellant was unfit for trial. The Magistrate’s reasons for dismissing the application confirm that no finding was made as to the appellant’s fitness for trial. This is perhaps unsurprising given that the appellant’s legal representative expressly disavowed relying upon fitness for trial as a basis for the application. Nevertheless, it may be accepted that where there is evidence which calls into question a defendant’s fitness to plead, this is a matter which a court will still be required to determine even if not relied upon by a defendant.

[56] Despite the Magistrate not making any findings in respect to whether the appellant was fit to plead, I am not persuaded any error has been demonstrated in that failure to do so. Leaving aside the fact that it was not sought to be relied upon by the appellant in support of her application and therefore the Magistrate was not asked to make any finding concerning the appellant’s fitness for trial, the opinion expressed by Dr Bayley as to the appellant’s fitness for trial was, in my view, cast in equivocal terms. Dr Bayley expressed the opinion that the appellant “may be temporarily unfit for trial” and provided reasons for that opinion. That opinion did not, in my view, provide any basis upon which the Magistrate could have been reasonably satisfied, on the balance of probabilities, that the appellant was unfit for trial. At best it raised the possibility. Therefore, having regard to the evidence before the Magistrate, despite not expressly making a finding as to the appellant’s fitness to plead, I am not persuaded the Magistrate was in error in failing to do so.

[57] The appellant’s first ground of appeal is that the Magistrate erred in finding that the appellant was not of unsound mind when the offences were allegedly committed. The appellant contends that the Magistrate erred in a number of respects including relying upon extraneous and irrelevant considerations in refusing the application and in failing to provide adequate reasons. It is further argued that the report of Dr Bayley established to the requisite standard that the appellant was of unsound mind when she offended and that the Magistrate erred in not acting on that opinion.

[58] As explained earlier, it is settled law that a court, whilst not bound to accept an expert medical opinion, should not reject the opinion where there is no other evidence casting doubt on it. Conversely, a court is not is not bound to accept a medical opinion if there is evidence which casts doubt on the opinion. Such evidence may go to the factual basis assumed for the purpose of the medical opinion or it might relate to the behaviour of the defendant which casts doubt on the opinion expressed. Regard can also be had to the quality of the expert opinion and any qualifications or concessions made by the expert.[35]   

[59] The Magistrate’s reasons for dismissing the application must be considered in light of the concerns expressed by the Magistrate in the course of submissions. Prima facie, the opinion expressed by Dr Bayley in her report was capable of supporting a finding that the appellant was of unsound mind when she offended. However Dr Bayley’s opinion was disputed by the prosecution, and the Magistrate raised concerns as to Dr Bayley’s opinion being what she described as global in nature rather than it relating to each individual offence. The appellant’s offending occurred on five separate occasions over a 10 month period. Dr Bayley noted in her report that when interviewed the appellant could not recall the offences she is alleged to have committed on 12 June 2017, 20 June 2017, 13 February 2018 or 8 March 2018. However by contrast, the appellant does appear to have some recollection of her alleged offending on 17 March 2018.

[60] The respondent contends that the report of Dr Bayley could not be considered “a clear and definitive opinion”, that it contained qualifications by Dr Bayley and that Dr Bayley stated in her report that further clarification of the appellant’s diagnosis was required in order to get a “clear picture of her psychiatric condition”. On the other hand, having regard to the opinion expressed by Dr Bayley as to whether the appellant was of unsound mind when she offended, it might equally be argued that her opinion was clear in its terms that the appellant was. The transcript of proceedings indicates that the prosecutor who appeared on the application had only recently taken carriage of matter and had limited time to consider the contents of Dr Bayley’s report. Nevertheless objection was taken to the report and in those circumstances, given the basis of the objections, it may have been prudent to have adjourned the application in order for Dr Bayley to be called to give sworn evidence on the application. Ultimately the Magistrate was being asked to determine the application on the contents of a disputed expert report.   

[61] The other issue raised by the appellant is the adequacy of reasons given by the Magistrate for dismissing the application. The Magistrate’s reasons encompass one paragraph. The finding by the Magistrate that she was not satisfied the appellant was of unsound mind was not accompanied by any reasons for arriving at that finding or for rejecting what, on the face of it, was an unequivocal opinion expressed by Dr Bayley that the appellant was likely to have been of unsound mind when she offended. Nevertheless the Magistrate’s reasons can be informed by the concerns she expressed in the course of submissions. A relevant consideration identified by the Magistrate is that Dr Bayley did not appear to deal with the appellant’s state of mind when she is alleged to have committed a particular offence but rather adopted a broad brush approach in opining that the appellant was of unsound mind when she offended.   

[62] In my view it would have been prudent for the Magistrate to have provided more detailed reasons for finding the appellant was not of unsound mind when she offended. Simply making a finding that the appellant was not of unsound mind when she offended without articulating reasons for arriving at that finding exposes the decision to challenge on appeal. However, as I have noted already, the Magistrate’s reasons should be read in light of the concerns she expressed in the course of submissions and that despite their brevity, I am not persuaded that the Magistrate’s reasons were inadequate.

Application to adduce further evidence

[63] In the course of hearing the appeal counsel for the appellant foreshadowed an application to adduce further medical evidence concerning the appellant’s state of mind at the time of her offending to address the concerns raised by the Magistrate and the prosecutor concerning Dr Bayley’s first report. The appellant has subsequently obtained a further report from Dr Bayley and makes application to adduce that further report on this appeal. I indicated in the course of the appeal I would grant leave to the appellant to adduce the further report from Dr Bayley. My reasons for doing so are as follows. 

[64] S 223(2) JA confers on the court a discretion to allow a party to adduce “fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.” As was explained by McMurdo P in R v Spina [2012] QCA 179 at [32] and [34]:

“[32] Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen; Lawless v The Queen and R v Katsidis; ex parte A-G (Qld). New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.

  …….

[34]  Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.” (citations omitted)

[65] I have noted earlier that Dr Bayley’s opinion in her first report was that the appellant was likely to have been of unsound mind when she offended. There were some aspects of Dr Bayley’s first report identified by the prosecutor and by the Magistrate upon which it was open to the Magistrate not to accept Dr Bayley’s opinion. Some of the concerns identified might have readily been clarified had Dr Bayley been called to give sworn evidence on the application and been cross-examined. Because no such application was made the Magistrate was left to determine the application on the evidence before her. I am not persuaded that on the evidence adduced on the application the Magistrate erred in finding that the appellant was not of unsound mind when she offended. As the Magistrate rightly pointed out, some of the appellant’s charges were serious and the Magistrate was clearly aware of the consequences which would follow were the appellant’s charges to be dismissed under s 172 MHA. Consistent with the Briginshaw test, the seriousness of the appellant’s offending and the consequences of allowing the application and dismissing the charges were relevant considerations for the Magistrate in determining the application. The effect of the Magistrate’s reasons in finding the appellant was not of unsound mind when she offended is that the Magistrate was not satisfied that the medical evidence before her persuasively supported that finding. Having regard to the medical evidence before the Magistrate her finding was in my view both unsurprising and well open to her.  

[66] The further report of Dr Bayley for which leave is sought to adduce on this appeal seeks to address more comprehensively whether the appellant was of unsound mind at the time of each of her alleged offending and now expresses in unequivocal terms Dr Bayley’s opinion that the appellant is unfit for trial. The contents of Dr Bayley’s further report are clearly relevant to an application under s 172 MHA and had the further report been before the Magistrate on the application it may have addressed the principal concerns raised by the Magistrate in respect to Dr Bayley’s first report. I am satisfied in these circumstances that there exists special grounds for granting leave pursuant to s 223(1) JA for the appellant to adduce the further report of Dr Bayley as new evidence on the appeal.

Disposition of the appeal

[67]    I have concluded that the appellant’s appeal is incompetent and on that basis the appeal should be dismissed. Even if I am wrong in that conclusion I am not satisfied that on the evidence before the Magistrate the appellant has made out either of the grounds of appeal relied upon and the appeal should be dismissed in any event. Whilst the further report of Dr Bayley adduced on the appeal clarifies in many respects Dr Bayley’s first report, even if I am wrong in my conclusion as to the competency of the appeal, it would not be desirable that I form my own view as to whether Dr Bayley’s further report supports a finding which should result in the appellant’s charges now being dismissed under s 172 MHA in circumstances where to make such a finding would necessarily require acceptance of the contents of Dr Bayley’s further report without the respondent being permitted to challenge the report if it so wishes. 

[68] The further report provided by Dr Bayley provides more cogent evidence that the appellant is currently unfit for trial than did her first report. The further report also provides a more compelling basis upon which a court could be reasonably satisfied, on the balance of probabilities that the appellant was of unsound mind when she offended. There is no prohibition on the appellant renewing her application to have her charges dismissed under s 172 MHA where, as here, there is further evidence not available when the first application was made which supports the application. That however is in my view an application that should be made in the Magistrates Court because it will enable the respondent to contest the further report of Dr Bayley if it wishes to do so, including requiring Dr Bayley be called to give sworn evidence and be cross-examined on her further report. 

Orders

[69] My orders are as follows:

  1. Leave is granted to the appellant to adduce the evidence in the affidavit of Stephanie Louise Nicholas filed on 1 May 2019.
  2. The appeal is dismissed.

Footnotes

[1] S 3(1)(b) MHA

[2] Mental Health Bill 2015 - Explanatory Notes p.5

[3] Explanatory Speech – 17 September 2015

[4] See In the matters of Kenneth Charles Rankin; Sunil Kumar; Benjamin James Sciortino [2017] QMHC 8, per Dalton J at [4]

[5] Defined in schedule 3 MHA to mean “an indictable offence, other than an offence that is a relevant offence under the Criminal Code, section 552BA(4)”.

[6] Defined in s 107 MHA to mean “an offence, other than an offence against a law of the Commonwealth, that the person is alleged to have committed at or about the same time as the indictable offence.”

[7] In the matters of Kenneth Charles Rankin; Sunil Kumar; Benjamin James Sciortino [2017] QMHC 8, per Dalton J at [9]

[8] Repatriation Commission v Smith (1987) 74 ALR 537 at 546

[9] At 449-450

[10] Per Deane, Dawson & Gaudron JJ

[11] Dupas v The Queen (2010) 241 CLR 237 at 250 [33]

[12] The Queen v Glennon (1992) 173 CLR 592 at 605; Dupas v The Queen  (2010) 241 CLR 237 at 250 [33]-[35]

[13] Walton v Gardiner (1993) 177 CLR 378 at 396

[14] Jago v District Court (NSW) (1989) 168 CLR 23 at 50

[15] S 6(2)(f) of the Act expressly recognises the benefits to the victim of an offence being given the opportunity to express their views on the impact of the unlawful act to decision-making entities under the Act.

[16] R v Schafferius [1987] 1 Qd R 381, per Thomas J at 383

[17] Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269 at 273

[18] S 105 MHA

[19] S 169 MHA

[20] S 32AA Acts Interpretation Act 1954 (Qld)

[21] Re M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718

[22] Re SAM [2003] QMHC 003, per Wilson J at [28]

[23] At 243

[24] R v True (1922) 16 Cr App R 164; R v Rivett (1950) 34 Cr App R 87

[25] See for example Lucas v R (1970) 120 CLR 171

[26] R v Rodriguez [2010] NSWSC 198 at [45]

[27] See for example s 111 MHA

[28] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [85]

[29] Taylor v R (1978) 22 ALR 599; R v Chester [1982] Qd R 252; R v Michaux [1984] 2 Qd R 159

[30] United Petroleum Pty Ltd v Sargent [2019] QCA 146; Mathews v Commissioner of Police [2011] QCA 368; Paulger v Hall [2003] 2 Qd R 294; Coulter v Ryan [2006] QCA 567 and Mathews v Cabrera [2010] QCA 300

[31] At 301

[32] At 301 citing Gerlach v. Clifton Bricks Pty Ltd (2002) 76 ALJR. 828 at 829

[33] S 14(4) Acts Interpretation Act 1957 (Qld)

[34] Re News Corporation Ltd (1987) 70 ALR 419

[35] R v Michaux [1984] 2 Qd R 159

Close

Editorial Notes

  • Published Case Name:

    RRK v Queensland Police Service

  • Shortened Case Name:

    RRK v Queensland Police Service

  • MNC:

    [2019] QDC 176

  • Court:

    QDC

  • Judge(s):

    Lynham DCJ

  • Date:

    18 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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