Button v Director of Mental Health
[2005] QCA 67
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- Notable Unreported Decision
- Button v Director of Mental Health[2005] QCA 67
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Button v Director of Mental Health[2005] QCA 67
Button v Director of Mental Health[2005] QCA 67
SUPREME COURT OF QUEENSLAND
CITATION: | Button v Director of Mental Health & Anor [2005] QCA 67 |
PARTIES: | JOSEPH GARRETT BUTTON |
FILE NO/S: | Appeal No 9202 of 2004 SC No 0018 of 2003 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal from the Mental Health Court |
ORIGINATING COURT: | Mental Health Court |
DELIVERED ON: | 18 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 March 2005 |
JUDGES: | Williams JA, White and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – where appellant charged with two counts of rape and 2 counts of murder – where the Mental Health Court found that at the time of the alleged offences the appellant was not suffering from unsoundness of mind nor diminished responsibility – whether the Court erred in placing undue emphasis on the lack of self-reporting – whether the Court erred in placing undue emphasis on the lack of independent evidence of the appellant’s actions in the actual commission of the crime – whether the decision of the Court was against the weight of evidence and unreasonable having regard to the weight of evidence Criminal Code Act 1899 (Qld) s 27 and s 304A Mental Health Act 2000 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r 745 and r 765 Attorney General of Queensland v Kamali (1999) 106 A Crim R 269, applied Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 136 CLR 616, considered Fox v Percy (2003) 214 CLR 118, considered Logan v Woongarra Shire Council [1983] 2 Qd R 689, cited Victorian Stevedoring and General Contracting Co Pty v Meakes (Dignan informant) (1931) 46 CLR 73, cited |
COUNSEL: | P Richards for the appellant No appearance for the first respondent L J Clare for the second respondent |
SOLICITORS: | Queensland Aboriginal and Islander Legal Service Secretariat for the appellant No appearance for the first respondent Director of Public Prosecutions (Qld) for the second respondent |
- WILLIAMS JA: After a hearing which extended over six days the Mental Health Court on 23 September 2004 found that the appellant, Joseph Garrett Button, was not of unsound mind within the meaning of the Mental Health Act 2000 (Qld) (“the Act”), that as at 15 October 2001 when the offences with which he was charged were committed he was not deprived of any of the capacities referred to in s 27 of the Criminal Code Act 1899 (Qld) (“the Code”), and he was not then suffering from diminished responsibility as provided for in s 304A of the Code. From that decision he has appealed to this Court, seeking an order that he was “at the time of the commission of the crime suffering from a mental disease and pursuant to s 27 of the Code is not criminally responsible for his actions and a forensic order pursuant to the Mental Health Court.” The grounds of the appeal are stated as follows:
“1.That the Mental Health Court erred in placing undue emphasis on the lack of self-reporting.
- That the Mental Health Court erred in placing undue emphasis on the lack of independent evidence of the appellant's actions in the actual commission of the crime.
3.That the decision of the court was against the weight of evidence and unreasonable having regard to the weight of evidence.”
- Appeals to this Court are governed by Chapter 8 Part 2 of the Act. However it is silent as to the nature of the appeal; that was also the position under the earlier statute, the Mental Health Act 1974 (Qld). Speaking of that earlier statute this Court said in Attorney General of Queensland v Kamali (1999) 106 A Crim R 269 at 270: “Although the Act is silent as to the nature of the appeal, it is accepted that the usual position applies, that is, that it is an appeal by way of re-hearing based on the record before the Tribunal.” Counsel for the appellant and the second respondent agreed that such statement should be taken as providing the position under the Act.
- Counsel for the appellant also did not challenge the statement in Kamali at 273:
“But if the judge constituting the Tribunal is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there may be other contrary evidence in the case which the judge is disinclined to accept.”
- The appellant has been charged with the murder of a 13 year old boy, the murder of that boy's nine year old sister, and two counts of raping the girl; each of the offences was alleged to have occurred on 15 October 2001.
- There is no doubt that the appellant had a traumatic childhood (including being sexually abused) and had for at least ten years prior to the alleged offences a history of alcohol and cannabis abuse. From about 1999 the appellant was “especially disturbed” evidenced by sudden and extreme mood swings, aggressiveness and violence towards others, and behaving in a bizarre manner. Relevant history in that regard was the subject of evidence before the Mental Health Court from relatives and associates of the appellant and that evidence is summarised in the judgment of that court. There can be no dispute the appellant had a seriously disturbed personality.
- The appellant was arrested on a stealing charge on 5 October 2001 and placed in the Rockhampton Watch-house. His behaviour thereafter was abusive, threatening and destructive, and included two attempts at suicide. After release on bail he returned to the family home at Murgon and on 9 October 2001 he was detained there under the Act. After assessment by a local medical practitioner he was transferred to the Acute Psychiatric Unit at Toowoomba Hospital. He was seen at that Hospital by psychiatrists; the admitting doctor made a provisional diagnosis of schizophreniform psychosis and raised also the possibility of schizophrenia and an anti-social personality disorder. The appellant was admitted for further assessment but the following morning he absconded from the Hospital and made his way back to Rockhampton.
- On 14 October 2001 the deceased children and their mother met the appellant for the first time at the home of a mutual friend. The appellant talked to the children about didgeridoos in the course of that day.
- The following day, 15 October, the children, their mother and the appellant again met. Later in the morning the appellant and the boy Russell set off to collect wood for didgeridoos. Around lunchtime the appellant telephoned the children's mother and informed her that Russell had rung the school and left a message for his sister Kimberley to go straight home after school rather than going to the friend's home as was the original plan. It would appear that no phone call was made to the school. Kimberley went to the friend's place and was there met by the appellant; she then rang her mother and said she was going with the appellant and her brother to find wood for a didgeridoo.
- As the children had not arrived home by 7.00pm the police were notified they were missing. Some time later the appellant rode his bicycle down the street in which the children lived. Their mother spoke to him and asked where the children were. He replied: “Sister, I wouldn't hurt your kids. I love them like my own kids. I wouldn't hurt your kids . . . I'll find your kids. I'll ride all night if I have to. I'll have them back before dawn.”
- Early the following morning the appellant set off from Rockhampton saying he was on his way to Murgon. However his partner brought him back to their home in Rockhampton. Amongst other things he said to his partner: “We will have to go to Murgon police, they know me and they know I would not hurt kids.” Subsequently they set out for Murgon. Along the way he made a telephone call from a service station and was overhead saying: “Somebody was raped. I need my solicitor. My mother's not taking my calls . . . I need to get out of the State”.
- Around 11.30 am that day the bodies of the children were found. Later that evening the appellant and his partner were stopped by police near Murgon and he was apprehended.
- Police recorded conversations with the appellant at the Murgon Watch-house on 16 and 17 October. Then on 17 October 2001 the appellant was transferred from the Murgon Watch-house to the John Oxley Memorial Hospital where he remained for two days. He was examined by, amongst others, Dr William Kingswell, a psychiatrist. The appellant denied emphatically that he murdered the children. Amongst other things he described hearing voices telling him to kill his father and uncles; he said he could converse with the voices. He was assessed by the doctors at that hospital as not suffering a mental illness, and he was returned to custody. Whilst in the Arthur Gorrie Correctional Centre he was examined by visiting psychiatrists on 29 October and 31 December 2001. On the latter date he was assessed as suffering a psychotic depression and transferred to John Oxley Memorial Hospital. He remained there until 22 February 2002. There he was examined by a number of psychiatrists, and in particular by Dr Kingswell; that doctor assessed him as not being psychotic but having a depressed mood. The doctor noted that the voices and visions of demons were not the sort of hallucinations associated with schizophrenia, although they were consistent with those associated with post traumatic stress disorder.
- Another psychiatrist, Dr McVie, also assessed the appellant on 15 February 2002; she then became his treating psychiatrist. The appellant gave her a detailed account of his movement on 15 October, denying going into the bushland with the children and denying involvement in their murders. In her report of 4 February 2002 Dr McVie recorded that the appellant “did not display any evidence of formal thought disorder.” Because of “the degree of his agitation and distress” she placed him on anti-psychotic medication. The report also noted that the nursing staff reported "little evidence to suggest psychosis.”
- The appellant was returned to custody from 25 February until 5 June 2002. During that period results of DNA testing became available establishing a match between his DNA profile and sperm located in the vagina of the deceased girl. It was noted that the appellant “seemed to become more depressed after that”. Since then he has claimed amnesia with respect to his movements on 15 October 2001.
- Apart from the psychiatrists already referred to there was evidence before the Mental Health Court from Dr Fama, Dr Reddan, and Dr Curtis. Dr Fama examined the appellant on three occasions between 7 April 2003 and 14 April 2004. On each occasion the appellant “insisted that he could not remember anything about the alleged offences or the victims”; in consequence as Dr Fama said, he was “unable to obtain any evidence about his mental state at the time”. Dr Fama concluded there was “no evidence of deprivation or substantial impairment of any of the capacities at the relevant time.” But Dr Fama did conclude that at the time of the alleged offences the appellant “was then in prodromal phase of a late onset paranoid schizophrenia, marked by emotional instability, pre-occupation with his sexual abuse and odd spiritual ideas including those demons being present in his life.” Whilst Dr Fama was of the opinion that the appellant was not deprived of any relevant capacity at the time of the alleged offences, he was of the view that the appellant “was not fit for trial by reason of his inability to absorb and understand information about the trial process or to instruct counsel in his defence.”
- Dr Reddan examined the appellant on 29 May and 13 June 2003. She noted that the appellant “claimed no recollection of the alleged offences”. Ultimately she concluded that “whatever the diagnosis, she was not persuaded of deprivation or impairment of any of the capacities.” In particular Dr Reddan did not think “there was sufficient evidence to support a diagnosis of schizophrenia”.
- Before referring to the findings of the learned trial judge constituting the Mental Health Court with respect to the evidence of Dr Curtis, it should be noted that in an earlier paragraph of the reasons she said: “The defendant has been examined by various psychiatrists since the alleged offences, but none of them has been able to talk to him about his mental state at the relevant time.”
- Because the submissions by counsel for the appellant essentially involved the proposition that the learned judge constituting the Mental Health Court erred in not accepting and acting on the evidence of Dr Curtis it is desirable to set out what was said in the reasons for judgment about his evidence:
“Dr Ian Curtis, psychiatrist, examined the defendant at the Woodford Correctional Centre on 15 November 2002. He comprehensively considered the history supplied by the defendant's family and the behaviour of the defendant in the Murgon Watch-house before his admission to the Toowoomba Hospital. He noted the longitudinal history, what he regarded as a substrate borderline personality disorder, and the deterioration of the defendant's mental condition in the three months before the offences. In his opinion the defendant suffers from schizophrenia of an undifferentiated type. Dr Curtis agreed with others that the defendant's experiences of demons were pseudo-hallucinations; he said they were the defendant's way of describing satanic and evil influences. Dr Curtis went on to opine that the defendant was suffering from two contrary delusions - one about the transmission of evil and destructiveness through his family and the other about his task to rid the world of demons and injustice. He postulated that at the time of the offences the defendant was experiencing an intense internal struggle between these delusions, which deprived him of the capacity of control. With respect to Dr Curtis, this can be no more than hypothesis, given that the defendant has not spoken about his mental processes at the time and given the absence of any supporting collateral evidence of immediate temporal relevance. I reject this hypothesis.”
- Most of what is written above is taken from the reasons for judgment of the Mental Health Court. The judgment is lengthy and carefully reasoned. What is set out above is no more than a précis based on findings and observations at first instance and designed to give an overview of the voluminous evidence relevant to the appellant's mental state. Counsel for the appellant did not challenge any primary finding made by the learned judge. The only error identified by counsel, and which was said to lead to conclusions against the weight of the evidence, was placing undue emphasis on both the lack of self-reporting and the lack of independent evidence as to the appellant's actions at the time of the commission of the crime.
- In my view it cannot be said that there was no evidence supporting the ultimate finding made by the Mental Health Court that the appellant was not of unsound mind within s 27 of the Code or suffering from diminished responsibility. In particular the evidence of Dr McVie, Dr Kingswell, Dr Fama and Dr Reddan provided a more than ample basis for the findings made. Unless there is merit in the appellant's contention that the learned judge placed undue emphasis on the lack of self-reporting or the lack of independent evidence as to the appellant's actions at the time of the commission of the offences the situation is essentially the same as that confronting the court in Kamali referred to above. Unless there be such error the finding of the learned judge that the appellant was neither of unsound mind nor of diminished responsibility could not be set aside notwithstanding the evidence of Dr Curtis to the contrary.
- It was recognised by all of the psychiatrists who provided evidence that the lack of self-reporting and the lack of independent evidence of the appellant's actions at the time of the commission of the offence were relevant considerations. Even Dr Curtis conceded as much; in the course of his cross-examination the following statements were made:
“. . . I mean, it's not sufficient even if Peter Fama and I are correct in saying that there's a process of schizophrenia going on, that really isn't sufficient because the presence of the schizophrenia may have no connection whatsoever with the crime. So, you know, that's - that's open to you to challenge that, and, I mean, I have a big problem in my contribution here because of the lack of information about the day which Dr Kingswell has said is insurmountable, it's an insurmountable problem, so that I'm actually attempting to contribute an opinion that's based on what a very experienced colleague says is an insurmountable problem . . .
. . . the other thing that I think is important, at least to consider, is whether or not the defendant did have abnormal mental content, whether we understand it or not, and that abnormal mental content, at least to the extent - and I acknowledge, as colleagues have said, that we've not been given enough information here by the defendant himself because of his manner and his mannerisms and for whatever other reasons - but on what we've got to go on the abnormal mental content that I'm at least postulating to you again has almost eloquent echoes in it of the crime scene detail, the Murgon disturbances and the implied disturbances that Dr Peter Fama and I have tried to identify . . .” (my emphasis)
- Evidence from other psychiatrists also supports the conclusion that the lack of self reporting was significant. Dr McVie said in evidence:
“I don’t have an understanding of what actually happened in terms of his thinking at the time of the alleged offences, because he's never actually discussed that . . . so it is difficult to relate any mental disorder with his involvement in the alleged offences.”
“When we got up to the next step and he realised that I was going to ask him about the more serious alleged offences, the murder and the rape, he immediately stopped talking and, after a couple of minutes, started describing the demons again. And to me it was a very clear attempt to avoid talking any further along those lines.”
“I mean, I'm not sure exactly because he won't talk about what he did on the 15th of October. He won't talk about why he did it. He's aware that there's evidence. I can recall, after his admission to John Oxley Memorial Hospital, at that point, there was some doubt about the evidence and he certainly was very vocal in his dispute of the facts and gave me an incredibly detailed description of his whereabouts on that date and what he did and where he went. And about a month later, when I saw him in gaol and at that time the DNA evidence had been presented, and he told me - I asked him, “Do you know about the DNA evidence?” and he says, “Yes” and I said, “Well, what is it?” and he said, “It's positive” and I said, “Well, what does that mean?” and he said, “Well, I suppose I did it.” And that was the last time he ever talked to me about anything to do with those particular offences and he certainly appeared to become more depressed after that.”
“I suppose the main reason that I don’t feel I can give a final diagnosis is I don’t believe that the patient has given me enough information to be a hundred per cent confident that I know exactly what he's thinking, exactly what he's feeling, and exactly what he's experiencing and certainly with a lot of people one does get that level of information.”
- It is more difficult to quote specific passages relevant to that issue from the oral evidence of Dr Kingswell. However, it is clear that that doctor thought it was extraordinary that the appellant was able to give an account of events on the day (exculpating himself) to the police immediately after, and also to doctors some two days later, but otherwise have no specific recollection of relevant events. As the doctor said in evidence: “How could you have relatively clear memories for most of your activities that day and none at all for the most horrific of events, I can't really understand how that would happen. I can't speculate as to what mechanism might cause that . . . but whether you could go through an enormously complicated day of kidding around with children and drinking and then commit this terrible offence and be only without memory for that particular event seems extraordinary to me.”
- In the first of his written reports Dr Fama noted that the applicant was “inaccessible to any meaningful discussion about the nature of the crimes alleged.” He maintained he could not remember anything about those matters. Then in his second report he said: “The fact is that Joe is now unable or unwilling to reveal anything of his state of mind, such as he might recollect, at the time of the offences - and the ancillary evidence overall points to a rationality (though with some oddities of behaviour) before and after these events.” In dealing with the question whether there was evidence to support a defence under s 27 of the Code Dr Fama noted: “There is no direct information available from the patient about his mental health at the time of the offences.” As the doctor said in oral evidence: “He often says he can't remember what happened. Now, whether that is authentic or not, doesn't really matter from this viewpoint. If he says he can't remember, his experiences then they cannot be analysed and they cannot be taken into account.” The doctor made it clear that in determining whether the appellant was deprived of one of the capacities it was necessary to consider “the history of the facts and circumstances of the offences themselves on that particular day”. Then in answer to another question the doctor referred to the fact that there was “no evidence in fact of this man's mental experience at the time of the offences. There's simply nothing one way or another.” Then again under cross-examination by counsel for the second respondent Dr Fama referred to the fact that the doctors “still don’t have sufficient information to reach a conclusion about his mental state in relation to the offences on that particular day” because the appellant himself gives no history of symptoms. As the doctor notes: “On the contrary, his behaviour on that day was understandable in everyday terms . . . they were terrible crimes, but they are not necessarily mad.” Finally Dr Fama said:
“I don’t think we can make a conclusion from the amnesia. The only conclusion that we can make from it is that he is unable to give any account, any account at all of his mental experiences on the day of the alleged offences and, in the light of that, and in the light of the information we have from others, my only conclusion is that there is no defence that can be sustained.”
- In her first report Dr Reddan referred on a number of occasions to the fact that the appellant did not discuss the events of the day in question when speaking to her. It is clear from her reports that that was a factor in her reasoning in reaching the conclusion that there was no evidence that the appellant was deprived of one of the relevant capacities on 15 October 2001. In her oral evidence she referred to the fact that, with the majority of psychotic individuals who commit a serious violent offence, one can see a link between some aspect of the psychosis and the violent behaviour. That link was absent here because of the absence of self-reporting on the critical events.
- It is against the background of evidence such as that that this court must evaluate the effect of two sentences in the reasons for judgment under appeal, namely:
“The defendant has been examined by various psychiatrists since the alleged offences, but none of them has been able to talk to him about his mental state at the relevant time.”
“With respect to Dr Curtis this can be no more than hypothesis, given that the defendant has not spoken about his mental processes at the time and given the absence of any supporting collateral evidence of immediate temporal relevance.”
- In the light of the passages from the evidence I have referred to those two observations by her Honour were entirely justified. Indeed, as already noted, Dr Curtis himself recognised some limiting effect because of those considerations. Against that background it cannot be said that her Honour placed "undue emphasis" on the considerations alleged in grounds 1 and 2 in the Notice of Appeal.
- I have already referred to the strong body of expert opinion on which the conclusion reached by the learned judge was based. It is only necessary to add that there was a strong body of evidence suggesting that the offences amounted to a planned and organised crime. Dr Fama was influenced to some extent by his evaluation of the facts expressed in the following way:
“Instead, what evidence there is points to a planned, predatory attack in which the children were taken to an isolated site, tied up, one raped twice, and both murdered using rope from their home - followed by the offender's attempts both to flee and to offer plausible exculpatory stories.”
- As Dr Reddan put it in her report: “. . . his attempts to cover up his behaviour, offer rational alternative explanations and reassure others and then later, his seeking to flee suggest that he had an awareness of his circumstances and understood the nature of his own actions.”
- If further elaboration of those matters is needed the following brief summary would suffice. The appellant arranged events on the afternoon in question so that Kimberley went to where he was rather than to where her mother was, he took rope with him when he went with the children into the bush, he gave Russell alcohol to drink so that he was rendered incapable of defending his sister, after killing the children he threw them over a cliff and covered them with rocks, he returned to the vicinity of the children's home and participated in the search for them and finally he sought to flee the area.
- Counsel for the appellant also submitted to this court that the opinion of Dr Curtis should be preferred to that of the other psychiatrists because he referred in greater detail in his written report to background evidence relevant to the appellant's mental state, in particular evidence from the appellant's relatives. That is partly due to the fact that the report of Dr Curtis was one of the last prepared; by then the appellant's legal representatives had collated material for use before the Mental Health Court. However, it is clear from a reading of the reports of the other psychiatrists that they all had, to a significant extent, access to the most critical information as to the appellant's background. In so far as that was not available at the time reports were prepared, counsel for the appellant alluded to it when cross-examining those psychiatrists in the Mental Health Court. Before this court counsel for the appellant was compelled to make the submission that the psychiatrists, having expressed an opinion, were not prepared to alter it in the light of additional information put to them in the course of cross-examination. That submission is without foundation. A reading of the record shows that the doctors gave a reasoned response to questions based on additional information put before them whilst in the witness box.
- It is also clear from a reading of the reasons for judgment of the Mental Health Court that her Honour took into account, and placed weight on, the background evidence from the appellant's relatives. But at the end of the day that evidence did not provide a basis for rejecting the conclusion reached by every psychiatrist other than Dr Curtis, namely that when the offences were committed on 15 October 2001 the appellant was not of unsound mind as within s 27 of the Code nor was he at that time suffering from diminished responsibility as provided for in s 304A of the Code.
- It follows that the appeal should be dismissed.
- WHITE J: I have read the reasons for decision of Williams JA and agree with his Honour that the grounds of appeal have not been made out. Mr P Richards of counsel who appeared for the appellant laid particular emphasis on the evidence of the appellant’s family about the appellant’s disturbed conduct in the months and weeks prior to 15 October 2001, the day the offences were committed. Mr Richards submitted that only Dr Curtis had given this important evidence the necessary weight. The careful and detailed reasons of the Mental Health Court demonstrate that the learned Judge constituting the Court did so as did the other psychiatrists, as well as Dr Curtis.
- Ultimately, as Williams JA has pointed out, the Court was entitled to be persuaded by the opinion evidence of all the other psychiatrists apart from Dr Curtis as to the state of the appellant’s mind when the offences were committed.
- This appeal was conducted on the basis that it was by way of re-hearing on the record as had been the approach to appeals under the Mental Health Act 1974 (Qld) in respect of appeals from the Mental Health Tribunal, the forerunner of the present Mental Health Court (see Kamili at 270).
- Douglas J has set out the provisions in the Uniform Civil Procedure Rules 1999 (Qld) which apply the relevant rules to appeals from a body such as the Mental Health Court. His Honour suggests that the appellate jurisdiction from that Court may, in future cases, need further consideration. It is of some interest to note that appeals to the Mental Health Court from decisions of the Mental Health Review Tribunal established under s 333(2) of the Mental Health Act are described to be:
“... by way of re-hearing, unaffected by the Tribunal’s decision, on the material before the Tribunal and any further evidence the court allows.”
- Immediately following are the provisions in Part 2 of Chapter 8 concerning appeals against decisions of the Mental Health Court on references. Section 336 mirrors the provisions in s 333(1) relating to appeals from the Mental Health Review Tribunal in that:
“The procedure for the appeal is to be in accordance with court rules applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with the direction of the Court of Appeal.”
What does not follow is a description of the nature of the appeal paralleling
s 333(2). As Douglas J has observed, it may be that the deliberate omission of such a provision might suggest that an appeal under Chapter 8 Part 2 of the Mental Health Act 2000 (Qld) to this Court is an appeal in the strict sense: Victorian Stevedoring and General Contracting Co Pty v Meakes (Dignan informant) (1931) 46 CLR 73 per Dixon J at 107 and ff and Evatt J at 112-3; Logan v Woongarra Shire Council [1983] 2 Qd R 689 per G N Williams J with whom Matthews and Kelly JJ agreed at 691. There would be no different outcome if the narrower approach were taken here.
- I agree with the orders proposed by Williams JA.
- DOUGLAS J: I have had the advantage of reading the reasons for judgment of Williams JA and agree with them and with the orders his Honour proposes. The nature of the appellate jurisdiction from the Mental Health Court may, however, in future cases, need further consideration.
- The essentially factual issues argued in this appeal, and the parties’ adoption of the approach in Kamali (1999) 106 A Crim R 269 at 270 that the appeal should be treated as one by way of rehearing based on the record before the tribunal, make it unnecessary to decide what the nature of an appeal from the Mental Health Court to this Court is. The Mental Health Act 2000 (Qld) provides little guidance. Section 334 sets out who may appeal. Section 335 provides how to start an appeal while s 336 provides for hearing procedures in these terms:
“The procedure for the appeal is to be in accordance with court rules applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with directions of the Court of Appeal.”
- Rule 745(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) applies Part 1 of Chapter 18 of those Rules to an appeal to the Court of Appeal from a decision of “another body from which an appeal lies to the Court of Appeal” such as, here, the Mental Health Court. Rule 765(1) provides that an appeal to the Court of Appeal under Chapter 18 of the Rules is an appeal by way of rehearing. Rule 745(2) provides, however, that r 765 applies only to an appeal from the Supreme Court constituted by a single judge. As this is not an appeal from the Supreme Court but from the Mental Health Court r 765 does not apply to it.
- Rule 766, however, which does apply to this appeal, gives the Court of Appeal the power to draw inferences of fact and receive further evidence on special grounds, both of which are characteristic of an appeal by way of rehearing (See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 136 CLR 616 at 619).
- Those provisions suggest that it is appropriate to deal with this case as an appeal by way of rehearing.
- As the only likely way to characterise the appeal otherwise is as an appeal in the strict sense, where the question is narrower, whether the judgment complained of was right when given on the material which the lower court had before it the issue assumes no practical significance here (See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd at 619 and Fox v Percy (2003) 214 CLR 118, 124 at [20]).