TRIBUNAL IS INNOVATIVE
16.07.1999
By: RICHARD CHESTERMAN
On Tuesday The Courier-Mail reported the distress of Robyn Clarke whose 17-year-old daughter Janaya, was fatally stabbed last year on the Gold Coast. The Queensland Mental Health Tribunal has ruled that Janaya's killer is mentally ill, unfit to stand trial, will be treated for his condition and may be released.
Justice Richard Chesterman defends the tribunal
and chief reporter Tony Koch replies
AS the judge who constitutes the Mental Health Tribunal I feel compelled to write to allay any alarm that might arise from chief reporter Tony Koch's recent article.
The Mental Health Tribunal operates in an efficient and humane way. It performs two important functions.
It removes from the criminal justice system at an early stage persons accused of crime who were insane at the time of the offence. Considerable court time and resources are saved. There are similar savings to prosecuting authorities and those who fund criminal defence.
It returns patients in need of specialist psychiatric treatment to the mental health system where they can obtain that care.
Your article appears to make three points:
1. The Queensland justice system is to be deplored because insane persons who commit murder are not brought to trial and sent to jail. Instead, their mental illness is treated in a psychiatric hospital from which they may eventually be released.
2. Only Queensland has such a system.
3. The diagnosis of schizophrenia in the case reported was made by three Queensland specialists. No similar diagnosis was made by doctors in the patient's home state of Victoria.
I address the points in turn.
The principle that a person who, by reason of mental illness, does not know what he is doing is wrong or cannot control what he does, or does not know that it is wrong, should not be punished for his actions as a criminal is scarcely new and is not confined to Queensland. One would hope that our state has no less compassion or commonsense that the citizens of Victorian England in whose time one could read in a Treatise on the law of lunacy: ``Crime is an act punished by the laws as voluntary, intentional and malicious. Insanity implies the absence of will and intention . . . practical morality condemns only those acts which are done by a person who knows that they are wrong and has the power of abstaining from them.''
It cannot be a criticism of the local criminal justice system that it aims to treat rather than imprison those who commit criminal offences when insane.
The criticism that it is the Tribunal not a jury which determines whether an accused person was insane is no more rational. The Tribunal consists of a Supreme Court judge assisted by two psychiatrists. It has the powers of a commission of inquiry and has the benefit of hearing argument from the legal representatives of the accused, the Director of Prosecutions and, where appropriate, the Director of Mental Health. The Tribunal procures reports from psychiatrists who have no sense of obligation to either Crown or defence in the expression of their opinions.
The Tribunal is no less qualified than a jury to make the appropriate determination. It can do it earlier and with less cost to the community than if the matter were sent to trial. Whether the Tribunal or a jury determines that an accused was insane the result is identical. The person is confined and treated in hospital.
Except, perhaps, to those for whom cultural cringe is a reality, it cannot be relevant to a fair assessment of the Tribunal's effectiveness and social worth that nowhere else ``in the British Commonwealth'' is there such a tribunal. In my view the legislators who created the Tribunal's jurisdiction are to be commended for their innovation and foresight.
I do not intend to comment upon evidence considered by the Tribunal in the case. It is, however, appropriate to say two things:
i) The psychiatric evidence that the accused was profoundly insane at the time of the offence was unanimous and overwhelming.
ii) The Director of Prosecutions has a right of appeal against any decision of the Tribunal he considers wrong.
Your reporter erred in asserting that a patient determined to be insane ``will be released when doctors decide he is cured''. Release from detention in a psychiatric hospital is controlled by a statutory organisation which consists of members of the community and must include a senior legal practitioner and two health professionals. Their decision is subject to appeal._ Richard Chesterman
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