CJS v Tasmania
[2008] TASSC 85
•22 December 2008
[2008] TASSC 85
CITATION: CJS v Tasmania [2008] TASSC 85
PARTIES: S, CJ
v
TASMANIA (STATE OF)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 387/2008
DELIVERED ON: 22 December 2008
DELIVERED AT: Hobart
HEARING DATE: 12 August 2008
JUDGMENT OF: Blow, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Accused unfit to plead or incapable during trial – Other matters – Tasmanian procedure – Supervision order – Application to substitute community treatment order – Appeal from discretionary refusal of application.
Criminal Justice (Mental Impairment) Act1999 (Tas), s30.
Aust Dig Criminal Law [733]
REPRESENTATION:
Counsel:
Appellant: T Jago, K Cuthbertson
Respondent: J N Perks
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 85
Number of paragraphs: 80
Serial No 85/2008
File No 387/2008
CJS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
TENNENT J
PORTER J
22 December 2008
Order of the Court
Appeal dismissed.
Serial No 85/2008
File No 387/2008
CJS v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
22 December 2008
I would dismiss this appeal, for the reasons stated by the other members of the Court.
This is an appeal from a discretionary decision of a single judge. The approach to be taken by a court of appeal in such a case appears in a well known passage in the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 – 505, where their Honours said the following:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
It has not been shown that the order made by the learned primary judge was unreasonable or plainly unjust, nor that he erred in any of the ways referred to in that passage.
File No 387/2008
CJS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
22 December 2008
On 6 December 2005, CJS ("the appellant") was made the subject of a supervision order pursuant to the Criminal Justice (Mental Impairment) Act 1999 ("the Act"), s18(2)(b).
The appellant had been charged with a number of offences which included breach of bail, breach of a restraint order, injure property and a failure to appear. When the matters came on before a magistrate, the issue of the appellant's fitness to stand trial was raised. The learned magistrate conducted an investigation under the Act and, in the course of that investigation, considered a report from a psychiatrist, Dr Ian Sale, dated 15 March 2005 and oral evidence from Dr Sale. The learned magistrate determined that the appellant was not fit to stand trial, and adjourned the matter for a special hearing pursuant to the Act, s15. As a consequence of the special hearing, the learned magistrate recorded that the appellant was not guilty of most of the offences with which he was charged, by reason of insanity pursuant to the Act, s17(d), and found others not proved. Those in the latter category were dismissed. The learned magistrate then adjourned the proceedings for the purpose of obtaining a report from Forensic Mental Health in relation to proposed orders pursuant to the Act, s18. Once that report was received and considered, the learned magistrate made the supervision order referred to above.
The order made was for an indefinite period and contained a condition that the appellant obey the written directions of the Clinical Director of Forensic Mental Health Services or a person holding an equivalent position in the Tasmanian State Service or his/her nominee as to a number of matters. These related to the appellant's place of residence, his need to attend meetings with various people about residential arrangements, his need to attend appointments for medical and psychiatric treatment, his need to take medication, and his need to attend programs related to rehabilitation, vocation and education. Since the order was made, the appellant has largely lived in supported accommodation and been fairly aggressively managed by Forensic Mental Health. The appellant has considered the possibility of buying a house and moving out of supported accommodation. That could be accommodated under the existing supervision order. There has been no suggestion of non-compliance with the order.
On 4 April 2007, as required by the Act, s37, the Forensic Tribunal ("the tribunal") conducted a review of the appellant's supervision order. The tribunal had before it reports from the appellant's case manager and a psychologist. The tribunal also heard evidence from a psychiatrist. The tribunal determined that the supervision order was no longer warranted, and issued a certificate pursuant to the Act, s37(3)(a), which allowed the appellant to apply immediately to the Court for the revocation of the supervision order. The tribunal recommended that, in lieu of the supervision order, a community treatment order pursuant to the Act, s37(4), for a period of 12 months was appropriate.
The appellant duly applied to the Court for the revocation of the supervision order. He also sought an order that, in lieu thereof, he be made the subject of a community treatment order. The matter came on for hearing. On 1 May 2008, a single judge found that he was not satisfied that the supervision order should be discharged. He did, however, indicate that it appeared that the terms of a supervision order might want some revision, and offered to hear the parties as to any suggested variations to the order. There was nothing to suggest that this offer was taken up. Instead, the appellant filed a notice of appeal.
The grounds of appeal were that the learned judge:
"1erred in exercise of his discretion in refusing the Appellant's application to revoke a Supervision Order and substitute a Community Treatment Order in that the decision did not comply with the principle in section 34 of the Criminal Justice (Mental Impairment) Act1999 having regard to all the circumstances of the case.
2erred in fact and/or in law in finding that a Supervision Order was the only satisfactory means of ensuring that the Appellant remained the subject of a compulsory treatment regime in that it was contrary to the weight of the evidence, namely the reports of Dr D Wood and Dr I Sale.
3erred in fact and/or law in finding that before he could grant the Appellant's Application he had to be positively satisfied that the proposed change was unlikely to put others at risk.
4erred in fact and/or law in finding that as a matter of fact the proposed change would put others at risk."
Powers of the Supreme Court under the Act
The Act, s30, is the source of power of the Supreme Court to vary or revoke a supervision order. The section itself contains no guidance as to the matters to which the Court should have regard in determining whether or not it is appropriate to revoke such an order. That section, however, appears in Pt4, Div5 of the Act, and Div6, containing ss32 to 35, sets out matters to which the Court should have regard in dealing with any court application under that Part. The Act, s34, requires the Court to apply, where appropriate, the principle that restrictions on the freedom and personal autonomy of a person such as the appellant should be kept to a minimum, consistent with the safety of the community. Section 35(1) requires the Court, in addition to the principle set out in s34, to have regard to:
- the nature of the person's mental impairment or other condition or disability;
-whether the person is, or would be if released, likely to endanger another person or other persons generally;
-whether there are adequate resources available for the treatment and support of the person in the community;
- whether the person is likely to comply with the conditions of a supervision order; and
- any other matter that the court thinks is relevant.
The Act, s35(2), provides that a court may not "significantly reduce the degree of supervision to which a defendant is subject" unless it has considered reports of the Chief Forensic Psychiatrist or his nominee, and one other psychiatrist, both of whom have recently examined the person as to "the condition of the defendant" and "the possible effects of the proposed action on the behaviour of the defendant ...". The Act, s36, permits a person who unsuccessfully applies for revocation to appeal that decision to this Court. This Court may affirm or quash the decision against which the appeal is brought or substitute any other decision or order as it thinks proper.
Reasons of the judge at first instance
The learned judge canvassed the various reports of psychiatrists and psychologists, which were before him, and the submissions of the appellant's counsel. His Honour said that he was dubious about discharging the supervision order as there was no doubt that the appellant needed the support of a compulsory treatment order. He indicated that he had two major concerns about the course proposed by the appellant. He expressed these in the following terms:
"● Firstly, the term of a community treatment order is not indefinite. It remains in force for one year unless renewed pursuant to the Mental Health Act 1996, s44(2), which provides:
'44 (2) A community treatment order may be renewed from time to time by 2 approved medical practitioners who, within a month before the end of the term for which the order was granted or last renewed, have each separately examined the patient.'
On the material before me, there is no doubt that the applicant should be subject to a lifelong mandatory treatment regime. In the circumstances, I can see no reason for replacing the supervision order with a community treatment order for twelve months which will terminate unless it is renewed annually, or in any of the other circumstances detailed in the Mental Health Act, s44(4), one of which provides that the order terminates if the applicant remains in an approved hospital as a patient for three months.
·Secondly, I am not persuaded that the applicant should be completely released from supervision and control as to his place of residence. Some control in this regard may be necessary in order to enforce his mandatory treatment. This control could be achieved via a community treatment order. The Act, s31C(2)(c), provides that a community treatment order may require the subject of the order to comply with specified requirements. However, a community treatment order containing a requirement as place of residence would be subject to the inadequacy I have already mentioned. It would have to be renewed annually and would not be indefinite.
Notwithstanding these deficiencies, it seems to be that I should grant the applicant's application if I am satisfied that the proposed change is unlikely to put others at risk. I am handicapped in making this assessment by the limited information that is before me on the circumstances that underpin the charges that gave rise to the imposition of the supervision order."
His Honour went on to detail just what information he did have and then said:
"In the light of this information, I conclude that at the time of the relevant charges the applicant was a real danger to other members of the community and that if he does not take medication as currently required, it is likely that he will once again become such a danger. As I am also of the view that the supervision order is the only satisfactory means of ensuring that the applicant remains the subject of a compulsory treatment regime, I am not persuaded that it should be discharged."
Supervision order/Community treatment order
A supervision order is an order releasing the person to whom it applies under the supervision of the Chief Forensic Psychiatrist, and on such conditions as to supervision and otherwise as the Court considers appropriate. Conditions which may be included relate to the taking of medication, submission to medical treatment and generally a condition requiring a person to comply with any directions given by the Chief Forensic Psychiatrist. A supervision order may be for an indefinite period. If a person the subject of a supervision order wishes to have the order revoked or varied, he or she must apply to the Supreme Court. If the Supreme Court refuses such an application, a further application of the same nature may not be made for six months, or such other period as the Court might determine.
A community treatment order is an order which requires a person to take medication or submit to the administration of medical treatment as specified, requires the person to attend as an outpatient at a specified treatment centre at specified intervals, or requires the person to comply with other specified requirements or other requirements decided by a specified medical practitioner or other person. A community treatment order is for a term which is not to exceed one year. Under a community treatment order a patient may be admitted to an approved hospital as an involuntary patient if the patient fails to comply with the requirements of the order.
Pursuant to the Mental Health Act 1996, s44, a community treatment order may be reviewed from time to time by two medical practitioners, both of whom have examined the patient within a month before the end of the term of the order. Further, a community treatment order ceases to have effect if one of the medical practitioners who extended the order, or the Mental Health Tribunal, discharges it, or it is simply not renewed.
The evidence
The following reports were before the learned judge:
(a)Dr Ian Sale, psychiatrist, dated 15 March 2005 and 10 August 2007.
(b)Ms Lizanne Goodwin, the appellant's case manager with Community Forensic Mental Health, dated 2 April 2007.
(c )Dr Georgina O'Donnell, Senior Clinical Psychologist with the Forensic Mental Health Service, dated 28 February 2007.
(d)Dr Debra Wood, Psychiatrist and Clinical Director, Tasmanian Forensic Mental Health Service, dated 3 March 2008.
(e)One pursuant to the Act, s33, as to the victim's views.
Dr O'Donnell concluded in her report that the appellant required assertive case management by mental health services to ensure that he remained medication compliant. She noted that he was receiving, at that time, a high level of residential, social and occupational support through a collaborative team approach by various entities. She was of the view that without a treatment order of some kind being in place, the appellant was likely to become noncompliant and possibly itinerant. She noted that he had the financial means to facilitate travel and that, while his offending profile did not indicate that he required specialist forensic intervention in the long term, given the current level of his delusional symptomatology and previous offending behaviour which occurred when he was psychotic, it would be desirable that his supervision order be continued.
In her report written a little over a year later, Dr Wood agreed that the appellant required assertive case management, and that he was likely to become noncompliant with a medication regime in the absence of mandatory treatment. She did not, however, agree that the appellant might possibly become itinerant in the absence of an order because she indicated that, prior to becoming unwell, the appellant had demonstrated some stability as far as residence was concerned. She was also not convinced that, if the supervision order were revoked, the appellant would leave the State. Where Dr Wood and Dr O'Donnell disagreed was in relation to the issue of whether a supervision order was the only means by which treatment could be maintained.
Dr Wood was of the view that the appellant could be adequately treated under the mandate of a community treatment order. She said at 8 of her report:
"aThis would mandate mental health treatment, including case management and medication treatment. Medication would be a continuation of long-acting depot (injectable) medication, or a strictly supervised oral regime of clozapine. The latter would only be countenanced if Mr S was, at the time of initiation, in a supported residential service, and only be continued in a less supervised environment if Mr S demonstrated a marked improvement, if staff could be assured he would continue it, and with frequent monitoring of blood levels.
bNotwithstanding the absence of a need for specialist forensic service management (as above), the Community Forensic Mental Health Service would continue to manage Mr S even if his Supervision Order were revoked. There is no maximum timeframe to this continued management, and Mr S would only be transferred to an alternative service if the CFMHS could be assured, as much as one can be, that this was both safe and appropriate.
cThe other conditions of the Supervision Order such as that Mr S comply with a specified place of residence seem redundant under the circumstances (and unenforceable if not).
dThe distinguishing aspects of the Supervision Order (as opposed to a Community Treatment Order) are that:
iShould Mr S require inpatient treatment then he would be admitted to the Wilfred Lopes Centre as opposed to a civil mental health service; and
iiThe Supervision Order - by implication - could mandate that Mr S remain in Tasmania.
eIn relation to 48(d)(i): Mr S is capable of being managed in a civil mental health service inpatient unit; if not, then his transfer to the Wilfred Lopes Centre could be secured pursuant to s72B of the Mental Health Act.
fRegarding 48(d)(ii), I refer you to paragraphs 47(d)(ii)-(iii). As to the likelihood of Mr S leaving Tasmania and unintentionally or intentionally defaulting on treatment, I am unwilling to hazard a guess, and will leave the weighing up of this matter to the Court."
Dr Wood's report noted that, while there were indications of aggression or violence when CJS was not being medicated, there was no evidence of that while he was.
Dr Sale concluded that the appellant would require medication on a life-long basis. He said that, as the appellant had no insight, and his reasoning was distorted by delusions, a medication regime would need to be supported by some form of compulsory treatment order and medication administered by way of depot injection. He said there was no realistic prospect that the appellant could be treated on a voluntary basis, or with oral medications. Dr Sale said at 3 of his report:
"These requirements could be met through a community treatment order. My only misgiving about such an arrangement would be that this would probably involve a change in treatment personnel, and a risk that a different team might allow a community treatment order to lapse. However, that is more an issue of service arrangements rather than treatment. The essential feature is that without continuing treatment and case management, Mr S's situation would almost certainly deteriorate."
The offending which resulted in the supervision order being imposed in the first place was, overall, relatively minor. The appellant damaged a number of cars belonging to neighbours in the area in which he lived. This damage all occurred on the one day. He also breached a restraint order which prevented him from approaching a number of these neighbours. There was little information put before the Court about precisely what the scope of the appellant's behaviour was. The Court did have a report which contained comments from a number of the neighbours who, it appears, had been the subject of the appellant's behaviour. One of those persons said:
"I find it so hard to comprehend that you would let CJS out and free from his 24 hour supervision. After him destroying many cars and lives in my neighbourhood. I am one of the only remaining locals who felt safe living here. ... Many have moved for fear of him one day returning. … I get to look forward to another confrontation with him involving him threatening me with the shovel, another incident when he may try to run me off the road in his car. How can you assure me or anyone involved that CJS will take his medication?"
There were other descriptions of behaviour which suggested that the appellant had driven his car at both people and their cars.
Discussion
In considering the application, the learned judge was required to comply with the Act, Pt4, Div6. While his Honour made no reference at all in his reasons to any of the sections in that Division, it must be inferred he had regard to them because of the matters he canvassed.
Dealing firstly with the Act, s33, this required the Attorney-General to provide a report to the Court as to the views of the victims of the "defendant's conduct". The Act is not specific about just which conduct is to be had regard to, although it can be assumed it refers to the conduct which gave rise to the charges against the appellant. The offending occurred in or around June 2005. It occurred in the confines of the neighbourhood in which the appellant was then living. He has not lived there, at least, since the supervision order was made in December 2005. The Office of the Director of Public Prosecutions wrote to each victim of the offending to ascertain their views for the required report. The responses were attached to the report put before the Court.
In relation to those responses, counsel for the appellant made a very valid point. The tenor of the responses was a fear engendered by an un-medicated appellant and an assumption that, were the supervision order revoked, any medication regime would cease. The victims were not told that a compulsory treatment regime could be, and was proposed to be, continued under the umbrella of a community treatment order. Had they been given that information, their views may not have been as they were. However, those victims did provide some information to the Court about the nature of the appellant's conduct towards them. There can be no doubt, having regard to that information, that his Honour was entitled to conclude that, at the time the supervision order was made, the appellant was a danger to the community and likely to be so again if he did not take medication. There was, however, no evidence at all to suggest that, while medicated, the appellant was a danger to anyone. In fact, the various reports before the Court suggested otherwise.
There remained to be considered the matters referred to in the Act, s35, and the principle set out in s34. If those sections are read together, the Court is required to apply the principle, "where appropriate", that "restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community." In addition to applying that principle, it is to have regard to certain matters. Clearly if a court, by reference to the matters set out in s35(1), considers it is not appropriate to apply that principle, for example it concludes by reference to the s35(1) factors that a less restrictive order is not consistent with the safety of the community, then it is entitled to make an order disregarding the first part of the principle. Despite the wording which has resulted, in particular, in grounds 3 and 4 of the notice of appeal, it is quite clear that his Honour took the view that, un-medicated, the appellant was a potential danger to the community and that a community treatment order, because of the deficiencies he identified, was not capable of producing a long term situation which would protect the community.
With respect, not only was that approach open to him on a proper interpretation of the Act, it was also open to him on the evidence.
There was no dispute on the evidence that the appellant suffered from a significant mental illness, and that that illness required the appellant to be medicated, probably for the rest of his life. There was also no real dispute that the medication needed to be the subject of a compulsory treatment regime because the appellant was likely to become non-compliant otherwise. It was open to the learned judge to find the appellant could be a danger to the community if un-medicated. There was no evidence the appellant's illness was cured by the medication, only that his symptoms and the behavioural manifestations of the illness were modified by medication. Absent the medication, the clear inference was there was a potential for danger to re-emerge.
By virtue of the provisions of both the Act and the Mental Health Act, a compulsory medication regime and a residential condition could be maintained under either a community treatment order or a supervision order. That regime has been maintained in the community for nearly three years. There was no evidence to suggest the appellant had not complied with the order as it stood or that, as a consequence, any member of the community had been placed in danger. There would seem, in those circumstances, to be no argument that there are, in the terms of s35(1)(c), adequate resources in the community for the treatment and support of the appellant.
The submission of counsel for the appellant was to the effect that the principle set out in s34 should, in those circumstances, had proper regard been paid to it, have resulted in the supervision order being revoked and a community treatment order being made. Counsel submitted that the appellant had never been convicted of any offence. Instead, he had been found not guilty by reason of insanity and hence not liable to suffer any form of imprisonment. All he was to be subject to were orders which ensured he was treated for his illness and the community was protected.
The differences between the two types of orders which were identified were the manner in which the orders could be removed and the duration of the orders. The learned judge did not identify the first difference as being of any significance, although counsel for the appellant submitted that the fact that the appellant, under a supervision order, would be required to apply to the Court to have it revoked represented a restriction on his freedom and personal autonomy not present in relation to a community treatment order. As to the second difference, the learned judge noted that a community treatment order, unless renewed or discharged, only lasted for 12 months. He perceived that there was a risk that, due to do some administrative difficulty with the order, it might not be renewed at the end of the 12 months, with possibly predictable results.
Counsel for the appellant submitted that the report of Dr Wood should have alleviated any concern that the learned judge had in relation to that issue. While certainly the report of Dr Wood expressed the view that the community mental health service would continue its intensive role in the management of the appellant no matter what the order was, certainly Dr Sale expressed some concern about the matter, although he acknowledged it was an administrative, rather than treatment, issue.
With respect, it was for his Honour to exercise his discretion having regard to the evidence before him. He had the evidence of Dr Wood, but he also had the reservation of Dr Sale. The fact that a community treatment order expired after 12 months, that, in effect, positive steps were required to be taken annually thereafter to keep it and any conditions in place, and that an unintended system failure might result in those positive steps perhaps not being taken, was a matter he was entitled to consider in the context of the long term safety of the community. In those circumstances he was, in my view, entitled to form the view that a supervision order was the only satisfactory [my emphasis] method of ensuring the appellant remained the subject of a compulsory treatment regime. Further I agree with the approach that he took.
The submissions of counsel for the appellant appeared to focus on the words "restrictions on the defendant's freedom and personal autonomy should be kept to the minimum" in s34 and did not keep in mind the whole of the principle when read in conjunction with s35. Even if, on a detailed examination of the words used by the learned judge, grounds 3 and 4 could be made out, grounds 1 and 2 are not, and the appeal should fail.
I would dismiss the appeal.
File No 387/2008
CJS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
22 December 2008
Introduction
In 2005 the appellant faced a number of charges in a court of petty sessions in Hobart. There were eight counts of injuring property, contrary to the Police Offences Act 1935, s37(1), one count of breaching a restraint orders, contrary to the Justices Act 1959, s106I(1), and two charges of contravening a bail notice by failing to appear. The injury to property charges all related to damage to motor vehicles.
In August 2005, a magistrate found that the appellant was not fit to stand trial within the meaning of the Criminal Justice (Mental Impairment) Act 1999 ("the Act"), s14(1). Following the conduct of a special hearing under that Act, on 28 October 2005 the appellant was found not guilty by reason of insanity in relation to all matters, with the exception of the breach of restraint order and one count of injury to property. Those two matters were dismissed.
On 6 December 2005, pursuant to the Act, s18(2)(b), the appellant was made the subject of a supervision order. A condition of that order was that the appellant obey the written directions of the Clinical Director of Forensic Mental Health Services as to a number of matters, including place of residence and treatment regimes.
On 4 April 2007, the Forensic Tribunal carried out a review of the supervision order, pursuant to the Act, s37. The Tribunal determined that the supervision order was no longer warranted and, pursuant to s37(3)(a) issued the appellant with a certificate to that effect. Upon the receipt of the certificate, (and in any event by virtue of s30(1)), the appellant was entitled to apply to the Supreme Court for revocation of the order. Included in the certificate, by virtue of the Act, s37(4), was a recommendation that should the order be discharged, the appellant be placed on a community treatment order for a period of 12 months.
Application was duly made to the Supreme Court for the revocation of the supervision order and in lieu, the making of a community treatment order. In reasons dated 1 May 2008, the primary judge said that he was not persuaded that the order should be discharged. His Honour expressed the view that the terms of the supervision order may warrant revision, and gave the parties the opportunity to be heard as to any suggested variations. This invitation was not taken up by the appellant.
The appellant brings this appeal pursuant to the Act, s36, which provides a right of appeal to the Court of Criminal Appeal from a "decision" of the Supreme Court. In s36, "decision" is defined as including "a determination, a declaration and a finding". Notwithstanding that no actual order dismissing the application for revocation appears to have been made and formalised, it would seem that the appeal is competent by virtue of the fact that the primary judge's reasons can be taken as including a "determination" or "finding". That determination or finding is expressed in the words, "… I am not persuaded that [the supervision order] should be discharged".
The issues
It is accepted that the appeal to this Court is not an appeal by way of rehearing. In any event, it is also accepted that this case involved the exercise of a discretion on the part of the primary judge. That being so, the well established rules as to appellate intervention in such cases apply, and the appellant needs to demonstrate error on the part of the primary judge. The appellant has alleged four particular errors. The amended notice of appeal complains that the primary judge:
"1erred in exercise of his discretion in refusing the Appellant's application to revoke a Supervision Order and substitute a Community Treatment Order in that the decision did not comply with the principle in section 34 of the Criminal Justice (Mental Impairment) Act1999 having regard to all the circumstances of the case.
2erred in fact and/or in law in finding that a Supervision Order was the only satisfactory means of ensuring that the Appellant remained the subject of a compulsory treatment regime in that it was contrary to the weight of the evidence, namely the reports of Dr D Wood and Dr I Sale.
3erred in fact and/or law in finding that before he could grant the Appellant's Application he had to be positively satisfied that the proposed change was unlikely to put others at risk.
4erred in fact and/or law in finding that as a matter of fact the proposed change would put others at risk."
Supervision orders and community treatment orders
The Act, s18(2)(b) enables a court to make a restriction order, to release the defendant and make a supervision order, to make a continuing care order, to release the defendant and make a community treatment order, or to release the defendant conditionally or unconditionally. Provision for supervision orders is made in the Act, s29A. The relevant features of such an order are that:
· it is an order releasing the person to whom it applies under the supervision of the Chief Forensic Psychiatrist and on such conditions as to the supervision of that person and such other conditions as the court considers appropriate (s29A(1));
· it may only be varied or revoked by order of the Supreme Court (s30);
· it renders the person liable to apprehension and removal to a secure mental health unit in the event of belief on reasonable grounds that there has been a contravention of the order or that there has been, or is likely to be, a serious deterioration in the person's mental health, and that as a consequence there is a risk that the defendant will harm himself or another person (s31).
Community treatment orders are provided for in the Act, s31C. The relevant features are that:
· it is subject to the Mental Health Act 1996, s44 of which also provides that the order remains in force, subject to that Act, for a term not exceeding a year. Section 44(2) enables a renewal of such an order from time to time by two approved medical practitioners who, within a month before the end of the term for which the order was granted or last renewed have each separately examined the patient;
· it requires the person to take or submit to the administration of medical treatment as specified or as decided by a specified medical practitioner, or requires the person to attend as an outpatient at a specified treatment centre, or to comply with other specified requirements decided by the specified medical practitioner (s31C(2));
· it only operates for the term, not exceeding one year, as specified in the order (s31C(1)).
The order in respect of the appellant
The supervision order requires the appellant to obey the directions of the Clinical Director of Forensic Mental Health Services in relation to a number of matters. The matters the subject of directions are, as the order reads:
"1Your place of residence.
2You must live at a specified address if directed and not change that place of residence without approval and in any other case notify the Director or delegate of any change of address before or within 2 days of the change.
3You must attend any meetings or attend upon any organisations, public or private, or individuals to facilitate appropriate residential arrangements from time to time.
4You must attend all appointments made for you with medical, Mental Health Practitioners or allied health practitioners including psychiatrists, psychologists, General Practitioners or others and attend nominated places for there [sic] purposes
5You are to accept treatment to all medication including but not limited to anti-pychotic [sic] and mood stabilising medication, as prescribed
6Receive and co-operate with home visits, from the Director or Delegate 3
7You must attend rehabilitational, vocational, educational and other therapeutic programs as directed."
The expert evidence
The primary judge had before him a number of psychiatric and psychological reports. Dr Sale provided two reports to the appellant's solicitors, one dated 15 March 2005, the second dated 10 August 2007. The first report notes that the appellant suffers from a paranoid illness characterised by complex delusions that permeate to all areas of his life. The conclusion was that:
"Mr S suffers from a chronic paranoid psychosis. This is likely to be a delusional disorder but the possibility of Paranoid Schizophrenia cannot be excluded on the information available. Although he is receiving treatment, he remains unwell. He is suspicious and his thinking is distorted by a complex paranoid delusional system."
Dr Sale reviewed the appellant the day before the second report. In that report Dr Sale said:
"This man suffers from a chronic paranoid psychosis. This illness has been present for several years and has had a drastic effect upon his life and personal function. His illness has become chronic, and his delusional belief systems are both complex and entrenched. They are likely to remain with him for the rest of his life. It is unclear whether Mr S also suffers other psychotic symptoms such as perceptual disturbance or ideas of reference.
Mr S will require medication on a life-long basis. As he has no insight, and his reasoning is distorted by his delusions, this would need to be supported by some form of compulsory treatment order, and the medication would need to be administered as a depot injection. There is no realistic prospect that Mr S could be treated on a voluntary basis, or with oral medications.
These requirements could be met through a community treatment order. My only misgiving about such an arrangement would be that this would probably involve a change in treatment personnel, and a risk that a different team might allow a community treatment order to lapse. However, that is more an issue of service arrangements rather than treatment. The essential feature is that without continuing treatment and case management, Mr S's situation would almost certainly deteriorate."
The primary judge also had a report from Dr O'Donnell, a clinical psychologist, dated 28 February 2007. The relevant parts of that report, including parts specifically referred to by the primary judge are:
"Psychosocial History
Mr S's delusional mental state precluded him from providing an accurate history. He continues to have an entrenched delusional system characterized by a complex system of beliefs that his family have tortured him physically and emotionally since childhood, and that they also influence a network of others including corrupt police and politicians. He believes that they have had contracts out to kill him.
…
Mental State Examination: 28 February 2007
Mr S presented as floridly delusional, with predominant grandiose, paranoid, persecutory and somatic themes. …
Given that he is currently driven by his delusional system, he may get into altercations with others who do not share his perceptions (which may become physically aggressive if verbal exchanges are hostile). Mr S may also react to perceived threats/vendettas, but there is no indication that this is imminent.
…
Recommendations
Mr S continues to require assertive case management by Mental Health Services to ensure that he remains medication compliant. He is currently receiving a high level of residential, social and occupational support through a collaborative team approach … with which he is reportedly satisfied. Mr S then expressed he would prefer not to have the Order 'hanging over his head', and that he would like to move interstate as he has 'itchy feet'.
Without a treatment order of some kind being in place, Mr S is likely to become non-compliant and possibly itinerant. He has financial means to facilitate travel. Mr S's offending profile does not indicate that he requires specialist forensic intervention in the longer term. However, given the current level of his delusional symptomatology, and the previous offending behaviour that has occurred when Mr S has been psychotic, it would be desirable for his Supervision Order to continue at present."
Lastly, there was a report from Dr Wood of the Wilfred Lopes Centre provided to the office of the Director of Public Prosecutions, dated 3 March 2008. The relevant parts of that report are as follows:
"44Mr S does not consider that he has a mental illness, and would very likely cease medication treatment were it not mandated. This would almost certainly result in a recrudescence of his symptoms, and if these continued untreated, a return to irritability, belligerence, and physical threat related to unchecked psychotic beliefs.
…
48In my opinion Mr S could be adequately treated under the mandate of a Community Treatment Order (under the Mental Health Act).
aThis would mandate mental health treatment, including case management and medication treatment. Medication would be a continuation of long-acting depot (injectable) medication, or a strictly supervised oral regime of clozapine. The latter would only be countenanced if Mr S was, at the time of initiation, in a supported residential service, and only be continued in a less supervised environment if Mr S demonstrated a marked improvement, if staff could be assured he would continue it, and with frequent monitoring of blood levels.
bNotwithstanding the absence of a need for specialist forensic service management (as above), the Community Forensic Mental Health Service would continue to manage Mr S even if his Supervision Order were revoked. There is no maximum timeframe to this continued management, and Mr S would only be transferred to an alternative service if the CFMHS could be assured, as much as one can be, that this was both safe and appropriate.
cThe other conditions of the Supervision Order such as that Mr S comply with a specified place of residence seem redundant under the circumstances (and unenforceable if not).
dThe distinguishing aspects of the Supervision Order (as opposed to a Community Treatment Order) are that:
iShould Mr S require inpatient treatment then he would be admitted to the Wilfred Lopes Centre as opposed to a civil mental health service; and
iiThe Supervision Order - by implication - could mandate that Mr S remain in Tasmania.
eIn relation to 48(d)(i): Mr S is capable of being managed in a civil mental health service inpatient unit; if not, then his transfer to the Wilfred Lopes Centre could be secured pursuant to s72B of the Mental Health Act.
fRegarding 48(d)(ii), I refer you to paragraphs 47(d)(ii)-(iii). As to the likelihood of Mr S leaving Tasmania and unintentionally or intentionally defaulting on treatment, I am unwilling to hazard a guess, and will leave the weighing up of this matter to the Court."
The primary judge's determination
The primary judge concluded that the case management imposed on the appellant by the supervision order had benefited him insofar as it had moderated the intensity of his delusions. His Honour went on to say that, by reference to the reports of Drs Sale, O'Donnell and Wood, he was dubious about discharging the supervision order as there was no doubt that the appellant needed the support of a compulsory treatment order.
His Honour expressed two major concerns about the proposed course of a community treatment order. His Honour's reasons continued as follows:
"● Firstly, the term of a community treatment order is not indefinite. It remains in force for one year unless renewed pursuant to the Mental Health Act 1996, s44(2), which provides:
'44 — (2) A community treatment order may be renewed from time to time by 2 approved medical practitioners who, within a month before the end of the term for which the order was granted or last renewed, have each separately examined the patient.'
On the material before me, there is no doubt that the applicant should be subject to a lifelong mandatory treatment regime. In the circumstances, I can see no reason for replacing the supervision order with a community treatment order for twelve months which will terminate unless it is renewed annually, or in any of the other circumstances detailed in the Mental Health Act, s44(4), one of which provides that the order terminates if the applicant remains in an approved hospital as a patient for three months.
·Secondly, I am not persuaded that the applicant should be completely released from supervision and control as to his place of residence. Some control in this regard may be necessary in order to enforce his mandatory treatment. This control could be achieved via a community treatment order. The Act, s31C(2)(c), provides that a community treatment order may require the subject of the order to comply with specified requirements. However, a community treatment order containing a requirement as place of residence would be subject to the inadequacy I have already mentioned. It would have to be renewed annually and would not be indefinite.
Notwithstanding these deficiencies, it seems to be that I should grant the applicant's application if I am satisfied that the proposed change is unlikely to put others at risk. I am handicapped in making this assessment by the limited information that is before me on the circumstances that underpin the charges that gave rise to the imposition of the supervision order. Besides copies of the charges, the only information that I have as to these matters is that which I can glean from the reports referred to and the responses of two victims of the applicant's offences. These responses were sought and provided pursuant to the Act, s33. Save for the tendering of the applicant's record of prior convictions, the applicant did not take up the opportunity afforded to him to put further evidence before the Court in relation to these matters. As to his offending, the applicant told Dr Wood that he had lashed out at neighbours. He told Dr O'Donnell that he damaged the parked cars of neighbours who were 'out to get him'. Plainly, his behaviour was a consequence of his delusional state. One of his victims asserts that prior to the applicant damaging the victim's parked car, the applicant had on two occasions driven straight at the victim's vehicle, crossing the road to do so. This victim also asserts that a similar incident occurred in relation to another resident. The victim says that after he had had his vehicle repaired, he sold it so that the applicant would not be able to recognise his vehicle, and that as a consequence of the applicant's behaviour towards him, he sold his home and moved. The response from the other victim who responded includes the following:
'I find it so hard to comprehend that you would let [CS] [sic] out and free from his 24 hour supervision. After him destroying many cars and lives in my neighbourhood. I am one of the only remaining locals who felt safe living here. You will find you will not get many replies as the [sic] are only 2 people still living here who were involved with the incidents surrounding this man. Many have moved for fear of him one day returning.'
This victim also complains of the applicant having tried to run him off the road in his vehicle.
In the light of this information, I conclude that at the time of the relevant charges the applicant was a real danger to other members of the community and that if he does not to take medication as currently required, it is likely that he will once again become such a danger. As I am also of the view that the supervision order is the only satisfactory means of ensuring that the applicant remains the subject of a compulsory treatment regime, I am not persuaded that it should be discharged. However, it seems to me that the terms of the supervision order may warrant some revision so I will hear the parties as to any suggested variations to the order."
Further provisions of the Act
Apart from the provisions which create and detail supervision orders and community treatment orders, the following are the provisions of the Act which arise for consideration:
"34 — Principle on which courts are to act
A court is to apply, where appropriate, the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community when determining —
(a) which order to make under section 18(2) or 21(1) or this Part; or
(b) whether to discharge or vary such an order; or
(c) the conditions of such an order.
35 — Matters to which courts are to have regard
(1) In determining proceedings under this Part, a court must, in addition to applying the principle in section 34, have regard to —
(a) the nature of the defendant's mental impairment or other condition or disability; and
(b) whether the defendant is, or would if released be, likely to endanger another person or other persons generally; and
(c) whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d) whether the defendant is likely to comply with the conditions of a supervision order; and
(e) other matters that the court thinks relevant.
(2) A court may not discharge a restriction order, release a defendant under section 18(2) or 21(1) or this Part or significantly reduce the degree of supervision to which a defendant is subject unless the court —
(a) has considered the reports of the Chief Forensic Psychiatrist, or a psychiatrist nominated by the Chief Forensic Psychiatrist, and one other psychiatrist, each of whom has personally examined the defendant, on –
(i)the condition of the defendant; and
(ii)the possible effects of the proposed action on the behaviour of the defendant; and
(b) has considered the report on the attitudes of victims, if any, and next of kin prepared under this Part; and
(c) is satisfied that the defendant's next of kin and the victims, if any, of the offence with which the defendant was charged have been given reasonable notice of the proceedings.
(3) Notice need not be given under subsection (2)(c) to a person whose whereabouts have not, after reasonable inquiry, been ascertained."
The Mental Health Act 1996, s44
This section reads as follows:
"44 — Term and renewal of community treatment order
(1) A community treatment order remains in operation, subject to this Act, for a term, not exceeding a year, stated in the order.
(2) A community treatment order may be renewed from time to time by 2 approved medical practitioners who, within a month before the end of the term for which the order was granted or last renewed, have each separately examined the patient.
(3) If the person to whom a community treatment order relates is admitted to an approved hospital as a voluntary patient, the order is suspended while the person remains a patient in the hospital and reactivates on the discharge of the person from the hospital unless it has otherwise ceased to have effect under this section.
(3A) If the person to whom a community treatment order relates is admitted to an approved hospital as an involuntary patient otherwise than on an authorisation for temporary admission, the order is suspended while the person remains a patient in the hospital and reactivates on the discharge of the person from the hospital unless it has otherwise ceased to have effect under this section.
(3B) If the person to whom a community treatment order relates is admitted as an involuntary patient to an approved hospital on an authorisation for temporary admission, the order is suspended while the person remains a patient in the hospital under that authorisation and reactivates on the discharge of the person from the hospital unless it has otherwise ceased to have effect under this section.
(3C) While a community treatment order is suspended it is of no effect.
(4) A community treatment order ceases to have effect if —
(a)one of the approved medical practitioners who made the order discharges the order; or
(b)the Mental Health Tribunal, on review of the order, discharges the order; or
(c)the community treatment order is not renewed or further renewed, at the end of the term for which the order was made or last renewed; or
(d)the patient remains in an approved hospital as a patient for 3 months; or
(e)the authorisation for temporary admission ends under section 44C(e) because the period of 14 days referred to in that section elapses."
The grounds of appeal
Did the primary judge fail to comply with the principle in the Act, s34?
I have set out s34 above. It mandates a court to apply, where appropriate, the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community when determining (inter alia) whether to discharge an order made under s18(2). The appellant submitted that it was evident from the determination that proper regard was not had to this principle.
First, as indeed the primary judge acknowledged, any concerns about control as to the appellant's place of residence could have been addressed by an appropriate requirement under s31C(2)(c). All this then being equal, it was submitted that the primary judge, by refusing the revocation of the supervision order in favour of the community treatment order, took a course which was more restrictive of the defendant's freedom and personal autonomy.
The identified restriction on the defendant's freedom and personal autonomy created by the supervision order as distinct from the community treatment order, was said only to arise from the way in which the orders can be revoked or varied. Only the Supreme Court is empowered to vary or revoke a supervision order. A community treatment order lapses after the period specified in the order, which must not exceed one year. The appellant's submission is based on the proposition that the requirement for an application for revocation or variation imposed by the Act is a restriction on a person's freedom and personal autonomy within the meaning of s34. I think the essential flaw in this approach is that it takes the relevant expression out of its immediate context. When ascertaining the meaning of a word or phrase regard must be had to the context in which it appears; Avondale Motors (Parts) Pty Ltd v FCT (1971) 45 ALJR 280 per Gibbs J at 283.
The principle in the Act, s34 is that restrictions on a defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The expression "freedom and personal autonomy", needs to be linked with the notion of the safety of the community. Colour is also added to the expression by reference to the matters to which a court must have regard as set out in s35(1).
A court is to apply the principle in considering which order to make under ss18(2) or 21(1) or Pt4, whether to discharge or vary such an order, or the conditions of such an order. I do not think that Parliament intended that a court should, in making such determinations, have in contemplation that in relation to a particular order, it might be more difficult in practical terms, for the person to make an attempt to be relieved of some or all of the consequences of the order.
In my view, the principle which is to be applied under s34, relates only to the effect of the operation of the order in question itself, and does not extend to consequential procedural matters under the Act. The expression "freedom and personal autonomy" as used in the section, means the ability to move freely and function within the community, and to be self-regulatory and self-sufficient as far as possible, in all personal matters.
In his reasons, the primary judge made specific reference to the requirement for the principle set out in s34 to apply. There is nothing, in my view, to suggest that his Honour did not have proper regard to the application of that principle in making his determination. This ground must fail.
Was a supervision order the only satisfactory means of ensuring that the appellant remained the subject of a compulsory treatment regime?
This ground of appeal is directed to the primary judge's expressed view that the supervision order was the only satisfactory means of ensuring that the appellant remained the subject of a compulsory treatment regime. The appellant submits that this was contrary to the weight of the evidence being the reports of Drs Sale and Wood. It will be recalled that the primary judge expressed the view that whilst a community treatment order could achieve the necessary control to enforce a mandatory treatment regime, it was subject to the inadequacy of not being indefinite and of having to be renewed annually.
His Honour adopted the approach that notwithstanding these deficiencies, the application should be granted if he was satisfied that the proposal was unlikely to put others at risk. Having considered the evidence, he concluded that at the time of the charges the applicant was a real danger to other members of the community and that if he did not take medication as currently required, it was likely that he would once again become such a danger. His Honour then expressed the particular view as challenged by this ground of appeal.
To succeed on this ground the appellant needs to demonstrate that the primary judge's impugned conclusion was not open on the evidence; that is, that there was no evidence upon which that conclusion could be reasonably based; Richardson v Shipp [1970] Tas SR 105 at 117; Taylor v Armoral & Co Pty Ltd [1962] VR 346 at 351; Hobart City Council v Ellis [2005] TASSC 71 at [28] – [29].
Dr Wood was the Clinical Director of Forensic Mental Health Services and hence the person whose directions the appellant had to obey. Dr Wood expressed the opinion that the appellant could be adequately treated under the mandate of a community treatment order directed to mental health treatment, including case management and medication treatment. The Community Forensic Mental Health Service would continue to manage the appellant even if his supervision order were revoked. The appellant "would only be transferred to an alternative service if the CFMHS could be assured, as much as one can be, that this was both safe and appropriate". She was however unwilling to hazard a guess as to the likelihood of the appellant leaving Tasmania and unintentionally or intentionally defaulting on treatment.
Dr Sale in his report of 10 August 2007 identified the risk that a differently constituted treatment team might allow a community treatment order to lapse; that is, fail to take the steps needed to apply for its renewal under the Mental Health Act, s44(2).
As is apparent from the reasons, Dr Sale's concern was one shared by the primary judge. His Honour concluded that there was no doubt that the appellant should be subject to a life-long mandatory treatment regime, a finding which is not challenged. His Honour said that in the circumstances, he could see no reason for replacing the supervision order with a community treatment order for 12 months which would terminate unless reviewed annually, or in any of the other circumstances detailed in the Mental Health Act, s44(4), one of which provided that the order terminated if the appellant remained in an approved hospital as a patient for three months.
The appellant complains that the primary judge concerned himself with what was predominately an administrative issue. It was submitted that there was no evidence that a community treatment order might not be reviewed. It was in this sense, as I understand it, that it was said the primary judge erred.
In my view there is no substance in this ground. For the community treatment order to be renewed it required two medical practitioners, within a month before the end of the term, to each separately examine the patient. It would not require evidence for the foundation of a concern that the necessary administrative arrangements might be overlooked. But in terms of the renewal or lapsing of community treatment orders, it is not just that aspect which would be of concern to a relevant degree.
As an examination of the Mental Health Act, s44 shows, there are a number of ways in which a community treatment order can come to an end, other than a mere failure to have it renewed before it expires. The primary judge identified the circumstances set out in s44(4)(d) in which the community treatment order ceases to have effect if the patient remains in an approved hospital as a patient for three months. By s44A such an admission may be on an involuntary basis. Therefore, if a reluctant patient remains in an approved hospital for three months, the order lapses. It also should be noted that, by s44(4)(a), the order can be unilaterally discharged by one of the medical practitioners who made it.
The view of the primary judge was that the more secure regime for mandated treatment was necessary in the interests of the safety of the community. In my view, it has not been shown that his Honour erred in taking the view he did.
Was there error in the finding that the primary judge had to be positively satisfied that the change in regime was unlikely to put others at risk?
This complaint is no doubt directed at the primary judge's statement to the effect that notwithstanding the deficiencies he saw with the community treatment order, the application should be granted if he was "satisfied that the proposed change is unlikely to put others at risk." Little was put in support of this ground. It seems to assert that the primary judge erred in relation whether, under s35(1)(b), he had to be positively satisfied of a likely , or an unlikely, state of affairs.
As to this ground however, I think that the particular statement should not be taken in isolation, and that it must be read with the later statements of the primary judge; i.e., that at the time of the charges the appellant was a real danger to other members of the community and that if the appellant did not take medication as required, it was likely that he would once again become such a danger. On that basis, it is plain that his Honour correctly identified that it was the likelihood of the appellant being a danger to others which was the essential issue.
Was there error in fact or law in finding that as a matter of fact the proposed change would put others at risk?
As framed, this ground does not accurately reflect what was said by the primary judge. In dealing with the previous ground, I have set out what his Honour actually said. The essential complaint seems to be that a finding that the appellant was likely to be a risk to others were the order to be revoked, was not reasonably open. It was submitted that in that the primary judge "failed to consider the question against the background that that the appellant would remain subject to a compulsory treatment order."
The Act, s35(1)(b) requires a court, in determining proceedings under the Part, to have regard to whether the defendant is, or would if released be, likely to endanger another person or other persons generally. Notwithstanding the reference to all proceedings under Pt4, the phrase "… or would if released be …", used as it is, might suggest that the provision is only applicable in any proceeding which might involve the release of a defendant, in the sense of being freed from custody or detention. On that basis, the primary judge was not obliged to consider the issue. This point was raised in the respondent's submissions.
The general purpose of these provisions is to ensure that in making determinations, the rights of freedom and autonomy of a defendant are balanced against the safety of the community. Applying the Acts Interpretation Act 1931, s8A, I conclude that the provision is to be construed as applying to all determinations under Pt4, to the extent that it may be relevant in any particular case. It thus required the primary judge to assess the current situation and to have regard to whether the appellant was likely to endanger another person or persons generally, if the order were revoked. On one view, this may mean no more than that an assessment of the degree of likelihood has to be made; the greater the degree of likelihood of danger, the less likely a court would be to order revocation.
However, it would seem that the terms of s35(1)(b) require a court, in the context of the particular proceeding, to make a finding as to the likelihood of danger to others. (This is despite the fact that there is no statutory mandate as to what can or cannot be done in the event of a finding of a relevant "likelihood".) As to the proper approach, a closely related example is the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s35(3), which provides that on a "major review" of a supervision order or custodial supervision, a court must vary the order to a non-custodial supervision order, unless satisfied on the evidence that the safety of the person or members of the public will be seriously endangered as a result of the release of the person on such an order. In Percy (1998) 104 A Crim R 29, Eames J held that the standard of satisfaction as to serious endangerment was that of the balance of probabilities, but that a court must apply the principles relating to the seriousness of the matters in issue, as discussed in Briginshaw v Briginshaw (1938) 60 CLR 336. Such an approach can be properly applied to s35(1)(b).
Accordingly, a finding has to be made, on the balance of probabilities, whether or not a state of affairs is "likely". As no arguments were addressed to any of this, I have already trespassed beyond the parameters of the case, but would further observe that there may well be debate about the meaning of the word "likely". Probabilities and likelihood are not necessarily the same concept "Likely", in this provision, may mean "a real or substantial chance or possibility". This was the meaning given to the word in the language under consideration in Boughey v R (1986) 161 CLR 10 and Tillmanns Butcheries Pty Ltd v Australian Meat Industries Employees' Union (1979) 42 FLR 331. However, attention has been given to its meaning in a not dissimilar context; that of the tension between the freedom of the individual and the safety of the community.
In Attorney-General (NSW) v Winters (2007) 176 A Crim R 249 the provision in question related to "serious" sex offenders. It required a court to be satisfied to a "high degree of probability" that the offender was "likely" to commit a further serious sex offence before certain orders could be made. McClennan CJ at CL, at 260 - 264, discussed the various meanings of the word "likely", and held that as it appeared in the provision, it meant "more likely than not" This was not followed in Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448. Giles and Ipp JJA, (Mason P dissenting), held at 461, following TSL v Secretary to the Department of Justice (2006) 14 VR 109, that in its context "likely" meant "probability at the upper end of the scale, but not necessarily exceeding 50 per cent".
To return to the ground of appeal, there was no challenge to the primary judge's stated conclusion that if the appellant did not take medication as he was required to do, it was likely that he would once again become a real danger. On the evidence, the conclusion that the appellant would pose a danger if not taking his medication was inescapable. The issue was how best to ensure the appellant continued to take his medication. The primary judge assessed that there were unsatisfactory features of the community treatment order which may well mean mandated treatment came to an end. For the reasons which I have given in relation to the second ground, that view was reasonably open. That being the case, his Honour was entitled to be satisfied that there was, at least, a real chance or possibility of the appellant again becoming a danger to members of the community. Contrary to what was submitted, his Honour plainly considered the question of the risk posed by the appellant, against the background of remaining the subject of a community treatment order.
In any event, it should be borne in mind that although a finding under s35(1)(b) must be taken into account, it is not conclusive of any particular outcome. Further, s35(1)(d) entitles a court to take into account any matter other than those specified, which it thinks relevant. The primary judge was entitled to regard the perceived deficiencies with a community treatment order as being relevant to the broad issue of the safety of the community. In my view, this ground is not made out.
Disposition
For the reasons which I have set out, in my view none of the alleged errors has been made out. I should also say that I take the view that the outcome itself has not been shown to be plainly unreasonable or unjust so as to warrant interference. I would dismiss the appeal.
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