Laws fail the Bryant test
14.06.1997
By; Tony KOCH
IT IS now history that Martin Bryant pleaded guilty to killing 35 innocent people at Port Arthur last year. Does anyone believe that a psychiatric examination of Bryant would have returned a result other than that he was ``of unsound mind'' at the time of the massacre?
But _ if you accept that contention _ had Bryant committed that horrific crime in Queensland, he would never have stood trial because of legislation exclusive to this state. He would never have been convicted of the crimes.
Instead, he would have been committed to a hospital which treated intellectual impairment. Under the laws, he would be eligible for release once specialists considered he was cured of his mental illness. He would be treated as a mental patient and no consideration would be given to his criminality or criminal acts.
That simple illustration shows why the State Government's move to repeal or at least amend the Mental Health Act deserves support.
Queensland is the only jurisdiction in Australia with a Mental Health Tribunal which establishes before trial whether an accused is fit to face trial or was of unsound mind at the time of the alleged offence.
The tribunal has operated for 13 years and is headed by a Supreme Court judge assisted by two specialist psychiatrists. Elsewhere, an accused person faces trial and the jury determines whether guilt was affected by unsoundness of mind at the time of the commission of the crime.
Put simply, if a person is found by the Mental Health Tribunal to be of unsound mind and is committed to a psychiatric hospital, that is the end of the matter.
The legislation sets out that ``treatment'' and ``punishment'' cannot be confused. ``Patients'' are sent to the psychiatric hospitals for treatment, not punitive detention.
Health Minister Mike Horan will carry the legislation which will see people accused of indictable offences dealt with by a court for the offence and, if the court decides, sent as part of the sentence for treatment at a psychiatric institution.
Health Department documents prepared for the Government's action cite the case of Ross Farrah, a 28-year-old paranoid schizophrenic who killed his former girlfriend, Christine Nash, at Coolum in 1995.
Farrah confessed to police that he threw the 40kg woman to the ground and kicked her in the head and face 25 times before choking her.
He had a history of violence and criminal activity and was found by the Mental Health Tribunal to have been of unsound mind at the time of the murder.
In making that finding, Justice Paul de Jersey pointed out that Farrah could be released at any time and warned against it happening because of the danger his violence posed to society. De Jersey warned in the strongest possible terms against ever releasing Farrah.
But within weeks of that information being published in The Courier-Mail, Farrah was allowed out to play indoor cricket at the Booval sports centre. He was free to wander about the centre.
HEALTH Department documents state that Farrah currently has no access to leave but he does ``leave the precinct of the John Oxley Memorial Hospital on escorted outings within the grounds of the Wolston Park Complex''. They show that he has made an application to the Patient Review Tribunal ``for discharge on the basis that he is no longer mentally ill'' and that ``he has requested ground leave in the event that his application is rejected''.
Quite clearly, Farrah is exercising his rights to apply for discharge.
The Health Department documents also state that, in relation to public concern, there is a need to emphasise that the John Oxley Memorial Hospital has admitted 800 patients since its opening.
``Of the patients who have absconded or been on leave from the hospital, several have committed suicide, one person robbed a local takeaway and there have been several domestic assaults,'' it says. ``There have, however, been no serious crimes committed by persons absconding or on leave from the John Oxley Hospital. This record compares well with similar institutions around the world.''
Horan is acting correctly in addressing the anomalies in this legislation. Public concern will not be allayed and justice will not be served until the laws are changed.
What the legislation achieves in its present form is to assume that the ``victim'' is the perpetrator of the crime. These people obviously need help and treatment.
But the true victims are those against whom the crimes were committed and the families left behind.
Ask Ron and Pat Nash, the parents of Christine, or her two young children, Wade and Tashauna, who were the victims of Farrah's violence.
Tony Koch is The Courier-Mail's chief reporter.
