King v Mental Health Tribunal & Dpp [2004] ACTSC 1 (12 January 2004)

Last Updated: 17 February 2004

MAURICE DIXON KING by his LITIGATION GUARDIAN SUSAN ANN RANDALL v MENTAL HEALTH TRIBUNAL and DIRECTOR OF PUBLIC PROSECUTIONS [2004] ACTSC 1 (12 January 2004)

Crimes Act 1900 (ACT), s 310

ON APPEAL FROM THE ACT MENTAL HEALTH TRIBUNAL

No. SCA 36 of 2003

Judge: Gray J

Supreme Court of the ACT

Date: 12 January 2004

IN THE SUPREME COURT OF THE )

) No. SCA 36 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT MENTAL HEALTH TRIBUNAL

BETWEEN: MAURICE DIXON KING

by his LITIGATION GUARDIAN SUSAN ANN RANDALL

Appellant

AND: MENTAL HEALTH TRIBUNAL

First Respondent

AND: DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

ADDENDUM

Judge: Gray J

Date: 12 January 2004

Place: Canberra

Addendum to Judgment dated 17 October 2003

1. In this matter the Mental Health Tribunal determined that Maurice Dixon King was unfit to plead. That conclusion is not in contest in these proceedings. In my reasons given on 17 October 2003 I pointed out that the task of the Mental Health Tribunal in determining the likelihood of a person being adjudged unfit to plead or becoming fit to plead was twofold. If the Tribunal were to determine that the appellant would be fit to plead within 12 months that determination needed to be supported by the evidence. On the other hand if the evidence did not support that conclusion separate consideration needed to be given to the evidence to see if a conclusion could be made the subject person is not likely to become fit to plead within 12 months after the determination is made.

2. Having regard to the additional evidence given by Dr Lucas and Dr Rosenman I do not consider that there was sufficient material before the Tribunal upon which to come to the conclusion on the balance of probabilities that Mr King would be likely to be fit to plead within 12 months.

3. I am also of the view that the only conclusion open to the Tribunal was that on the balance of probabilities Mr King is not likely to become fit to plead within 12 months. Accordingly, I quash the determination made by the Mental Health Tribunal on 2 June 2003 made pursuant to section 310 of the Crimes Act 1900 (ACT) that Maurice Dixon King is likely to become fit to plead within 12 months after that determination, and secondly, in lieu of that determination I substitute a determination that Maurice Dixon King is not fit to plead and is unlikely to become fit to plead within 12 months after 2 June 2003.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 12 January 2004

Counsel for the appellant: Mr S Whybrow

Solicitor for the appellant: pappas, j - attorney

Solicitor for the first respondent: ACT Government Solicitor

Counsel for the second respondent: Mr R Refshauge SC

Solicitor for the second respondent: ACT Director of Public Prosecutions

Date of hearing: 15 December 2003

Date of judgment: 12 January 2004