Clarke v Scanlon
[2021] VSC 19
•29 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0008
| IN THE MATTER of an application for bail | |
| Between: | |
| SAMANTHA CLARKE | Applicant |
| -and- | |
| SENIOR CONSTABLE ETHAN SCANLON | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 January 2021 |
DATE OF ORDERS: | 27 January 2021 |
DATE OF PUBLICATION OF REASONS: | 29 January 2021 |
CASE MAY BE CITED AS: | Clarke v Scanlon |
MEDIUM NEUTRAL CITATION: | [2021] VSC 19 |
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CRIMINAL LAW — Application for bail — Applicant (aged 38) charged with recklessly causing injury to, and threatening to kill, her partner’s father (aged 61), recklessly causing injury to police officer and other offences — Applicant mentally unwell at time of alleged offences, and appears to remain so — Family violence intervention order now in place against applicant — Inpatient assessment order made the morning of hearing of application — No prior convictions — Applicant’s partner able to provide suitable care and accommodation, away from partner’s father — Whether compelling reasons justifying bail — Whether unacceptable risk of offending, etc, if bailed — Bail not opposed — Mental impairment defence may well be available — Imprisonment extremely unlikely, if ever convicted — Bail granted, on own undertaking, with conditions — Bail Act 1977 (Vic), ss 3AAA, 4AA, 4C, 4D & 4E; Mental Health Act 2014 (Vic), Division 1, Part 4; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 5, 20, 23 & 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms J Swiney | Victoria Legal Aid |
| For the Respondent | Mr N Watt | Victoria Police, Legal Practice Group |
HIS HONOUR:
Overview
This is an application for bail by Samantha Clarke.
On 10 January 2021, Ms Clarke was arrested and charged with eleven offences, including recklessly causing injury to, and threatening to kill, her partner’s father and recklessly causing injury to a police officer.
In short, it is alleged that Ms Clarke, aged 38, assaulted, and threatened to kill, Mark Harris, aged 61. This occurred at Mr Harris’s property in The Basin, where his wife lived with their son Christopher Harris (who is Ms Clarke’s partner) and Ms Clarke. Mr Harris’s wife’s elderly parents lived there too. It is also alleged that, when police arrived some time later, Ms Clarke assaulted Leading Senior Constable Tanya Lavin by kicking her to the knee during the course of an arrest. Indeed, so out of control was Ms Clarke’s behaviour that police considered it necessary to tackle her to the ground and to administer capsicum spray to quell her.
When in police custody later that day, Ms Clarke was uncommunicative and, it seems, in no fit state to apply for bail. Accordingly, no such application was made at that time. The next day, however, Ms Clarke did apply for bail, but her application was refused by the magistrate. As a result, she has been in custody for the last seventeen days.
In order to be granted bail, Ms Clarke must establish a compelling reason justifying bail.[1] Sensibly, however, her application in this Court is not opposed by the prosecution. Nor, given the conditions of bail proposed, do the prosecution submit that, if bailed, there is an unacceptable risk that Ms Clarke would engage in any of the behaviours proscribed in the Bail Act 1977 (Vic).[2]
[1]This is because she is charged with a threat to kill that is also a family violence offence. See ss 4AA(3), 4C and 3AAA, and item 7 of Schedule 2, of the Bail Act 1977 (Vic).
[2]See s 4E of the Bail Act 1977 (Vic), as well as ss 4A, 4C and 4D.
Ms Clarke’s behaviour and utterances at and around the time of the alleged offending and to mental health practitioners since give rise to serious concerns about her mental health. In my view, she should not be in custody any longer. Instead, she should be released on bail so that she may be examined more closely by mental health authorities pursuant to an inpatient assessment order (“IAO”) under the Mental Health Act 2014 (Vic) (“the MHA”) and, if considered necessary, treated as well.[3] As will be seen, such steps have been put in place in the event of her release.
[3]See Division 1 of Part 4 of the Mental Health Act 2014 (Vic).
Further, Ms Clarke, who has no criminal history, upon her discharge from the strictures of an IAO, will be able to live with her partner at his property in a country town several hours’ travel from Mr Harris’s property. Happily, her partner is able to work from home, take her to any mental health or other appointments and care for her generally.
Against that background, I am satisfied that several factors, in combination, establish compelling reasons why bail is justified. Chief among them are:
(a) Ms Clarke’s parlous mental health at the time of the alleged offending;
(b) that she is now subject to an IAO which will result in her being transported by ambulance to a designated mental health service for assessment;
(c) that it is extremely unlikely that she would be imprisoned, if indeed she were ever convicted of any of the offences charged; and
(d) that she has in place satisfactory arrangements for her care and accommodation after discharge from the IAO.
Further, given the surrounding circumstances, including the conditions of bail agreed by the parties, I am not satisfied that there is an unacceptable risk that Ms Clarke would engage in any of the behaviours proscribed by s 4E(1) of the Bail Act.
Accordingly, bail should be granted.
My more detailed and settled reasons for these conclusions follow.
Alleged offending
I turn first to a summary of the alleged offending.
On 10 January 2021, at 11:40 a.m., Mr Harris attended his property at The Basin. He was there to do some maintenance on the house in order to prepare it for sale and to ask his son Christopher Harris, who had been living there with Ms Clarke for the past two years or so, to move their belongings for the purposes of the sale.
A few minutes into the conversation, Ms Clarke burst into the room and yelled, “You have to do this legally.” She then struck Mr Harris (Snr) in the mouth with her left fist, causing his lip to split and bleed.[4] Christopher Harris restrained her, but she also yelled at his father, multiple times, “I’ll kill you.”[5] Mr Harris (Snr) left and reported the matter to local police.
[4]According to the police summary, this behaviour was said to give rise to Charge 1 (recklessly causing injury) and Charge 2 (unlawful assault).
[5]Charge 3 (threat to kill).
At 1:20 p.m., LSC Lavin and Constable Riley McGibbony attended the address for the purposes of arresting Ms Clarke. Mr Harris (Snr) met the police in the driveway and let them inside the house. They found Ms Clarke and Christopher Harris upstairs. LSC Lavin informed Ms Clarke that she was under arrest for recklessly causing injury to Mr Harris (Snr). Ms Clarke lunged towards LSC Lavin and pushed her out of the way.[6] LSC Lavin then grabbed Ms Clarke to prevent her from falling down a flight of stairs. At the same time, Constable McGibbony deployed OC spray foam to the side of Ms Clarke’s face.
[6]Charge 4 (assault an emergency worker, reckless as to her being an emergency worker); Charge 5 (assault an emergency worker on duty); and Charge 11 (unlawful assault).
Ms Clarke broke free and ran down the stairs towards the front door. Constable McGibbony gave chase and tackled her to the ground. The two police then tried to gain control of Ms Clarke, who was violently kicking out at both officers. During the arrest, Ms Clarke kicked LSC Lavin to the knee, causing bruising and pain.[7]
[7]Charge 6 (assault an emergency worker, LSC Lavin, reckless as to her being an emergency worker); Charge 7 (assault an emergency worker, Constable McGibbony, reckless as to his being an emergency worker); Charge 8 (resisting LSC Lavin, an emergency worker on duty); Charge 9 (resisting Constable McGibbony, an emergency worker); and Charge 3 (recklessly causing injury to LSC Lavin).
Once placed in handcuffs, Ms Clarke was given aftercare in respect of the OC foam. She was then taken to Knox Police Station. No formal interview was conducted as Ms Clarke was not considered fit to participate.
Previous bail application
As indicated earlier, when in police custody at the time of her arrest, Ms Clarke was uncommunicative and did not apply for bail, as she was in no fit state to do so. The next day, however, an application was made, but was refused by a magistrate. The court extract indicates that the magistrate was not satisfied that compelling reasons had been shown and was satisfied that there was an unacceptable risk that, if bailed, Ms Clarke would commit an offence or endanger the safety or welfare of any person.
Mental health and other concerns and arrangements in place to address those concerns
Concerns expressed in police summary
In the police summary annexed to the affidavit filed in this Court on behalf of the respondent, it is alleged that Ms Clarke has said, among other things, that she is a sovereign citizen and that she does not acknowledge Victorian law, Victoria Police’s authority or the authority of the Victoria’s courts as Jesus is her only master.
Interim FVO
On the day of her arrest, an interim family violence intervention order was made against Ms Clarke and in favour of Mr Harris. That order has not been served yet. It contains standard conditions, including a prohibition on her being within five metres of Mr Harris or within 200 metres of his premises at The Basin.
Previous IAO and mental health report
In a report before this Court compiled by Constable Daniel Zerella, who describes himself as “the corroborator for this matter”, it is noted that Barrie Janson, who is a senior nurse with the Mental Health Advice and Response Service (“MHARS”) at Forensicare, made an IAO on 11 January 2021, the effect of which was that Ms Clarke would be transported to hospital, if she were released on bail that day. That IAO has now expired.
Mr Janson also completed a mental health report on 11 January, which is before the Court. In the report, Mr Jason noted that the custodial staff reported bizarre behaviour and comments by Ms Clarke. He also said that Ms Clarke:
(a) appeared guarded, hyper-vigilant and unwilling to be interviewed but started listening and engaging once he explained his role;
(b) expressed religious and delusional themes;
(c) said that she has a history as a survivalist and “prepper”;
(d) said God has been communicating with her partner and her in their dreams, and that God had told them that they had to live at the home of her “in-laws”;
(e) said that “end times” are coming and that there will be war and famine soon; and
(f) presented as psychotic and delusional, with poor judgment and no insight.
Mr Janson also observed that Ms Clarke was vulnerable, was not being treated (psychiatrically) and appeared to be resistant to such treatment.
Fresh IAO
Also before this Court is a short note from Mr Janson, dated today (i.e. 27 January 2021), concerning a fresh IAO. In that note, Mr Janson acknowledges that Ms Clarke “is coming before the court today”. He opines that “Ms Clarke appears to have a mental illness and is [in need of?] diagnostic clarification and possible treatment”. He went on to say that “[s]he is a high risk of treatment non-compliance and has been put on an assessment by her treating team as she appears to be unwell”.
Annexed to Mr Janson’s letter are an assessment order and a discharge summary. Both documents were completed by mental health practitioner Erik Mears this morning at the Prison Mental Health Service at Dame Phyllis Frost Centre.
In the assessment order, Mr Mears states that he assessed Ms Clarke today at 9:10 a.m. He also states that he is satisfied that all of the relevant criteria in s 29 of the MHA apply to Ms Clarke and that he bases his opinion on the following:
Presents with fixed ongoing beliefs with religious themes, e.g., flat Earth, receiving messages from God in dreams, arrival of the new world order. Refused COVID-19 test due to not wanting [damage] her membrane and [she would] get sick that way and only drinks bottled water, no tap or filtered, due to toxins. Current suicide/self-harm risk appears low, ongoing vulnerability due to potential delusional disorder. Unable to conduct longitudinal assessment, requires ongoing assessment/support.
Further, Mr Mears states: “I am satisfied that … assessment cannot occur in the community and make an [IAO]”.
The discharge summary provides similar information, plus more, most of which is unnecessary to recount for the purposes of this judgment. Suffice it to say, however, that Mr Mears noted Ms Clarke:
(a) to be easily engaged;
(b) as maintaining good eye contact and of euthymic mood;
(c) reports that she is “better” and “mentally well” and has good attention and concentration;
(d) is not reporting any special powers, premonition, magical thinking, thought broadcasting, insertion or removal, or visual or auditory symptoms; and
(e) showed no psychotic symptoms.
Mr Mears also recorded that Ms Clarke said she is willing to engage with mental health services for ongoing follow-up, but she is not requesting support. Finally, he noted that she is not happy with the thought of being placed on an IAO and that she considered that having to see a psychiatric service in the community “is the same as being in prison”.
Thus, when the differences between Mr Janson’s observations on 11 January and those of Mr Mears this morning are compared and contrasted, it appears that, while she still presents with rather odd thoughts, there has been some improvement in Ms Clarke’s psychiatric state over the last seventeen days.
As with the earlier IAO, the effect of the current IAO is that, if Ms Clarke is bailed, she will be transported by ambulance from the prison to the Emergency Department of Sunshine Hospital. This will happen today. Under the MHA, she would be examined by an authorised psychiatrist to determine whether the treatment criteria apply to her. If they do not, the IAO will be revoked and she will be released. If they do, she may be held for a longer period, given treatment and ultimately released.
Accommodation
Ms Swiney, who appeared for Ms Clarke, advised that her client was able to live with her partner Christopher Harris at his property in Moonambel, which is a small town about an hour’s drive from Ballarat. Her partner is presently working from home, and expects to be doing so at least until October. He is able to take her to any mental health or other appointments and care for her generally.
Submissions
Applicant
Ms Swiney submitted that a combination of factors demonstrated compelling reasons justifying bail. They included Ms Clarke’s mental health concerns; the fact that, if bailed, she will be transported to hospital under an IAO; her lack of prior convictions; and the unlikelihood that she would be imprisoned, if convicted.
Ms Swiney also submitted that, in all the circumstances, including the proposed conditions of bail, there was no unacceptable risk that, if bailed, Ms Clarke would endanger the safety or welfare of any person; commit an offence while on bail; interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail.
Respondent
Mr Watt, who appeared for the respondent, indicated that the application was not opposed. While, initially, there was some disagreement between the parties as to the required conditions of bail, both Mr Watt and Ms Swiney ultimately agreed that a surety was unnecessary and that the other conditions proposed were satisfactory.
Consideration
As I indicated at the outset of these reasons, I am satisfied that several factors, in combination, establish compelling reasons why bail is justified. Chief among them are:
(a) Ms Clarke’s parlous mental health at the time of the alleged offending;
(b) that she is now subject to an IAO which will result in her being transported to hospital for psychiatric assessment;
(c) that it is extremely unlikely that she would be imprisoned, if indeed she were ever convicted of any of the offences charged; and
(d) that she has in place appropriate arrangements for her care and accommodation after discharge from the IAO.
As to the first three points, while it will depend ultimately on the psychiatric opinion or opinions that might be offered, it seems reasonably possible, at least on the material that I have seen at this early stage, that Ms Clarke may well have a defence of mental impairment. In particular, it may be that, at the time of engaging in the conduct constituting the alleged offences, Ms Clarke was suffering from a mental impairment that had the effect that she did not know that the conduct was wrong (that is, she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).[8]
[8]See ss 20(1)(b) and (2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
If these charges (some of which allege indictable offences triable summarily, some of which allege summary offences) were heard summarily in the Magistrates’ Court and the defence of mental impairment succeeded, the court would be required to find her not guilty.[9]
[9]See ss 5(1) and (2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Further, unlike the situation that obtains in the County Court or in this Court (namely, that an accused found not guilty by reason of mental impairment must be declared liable to supervision — which may take a custodial or non-custodial form — or be released unconditionally[10]), in the Magistrates’ Court, the accused must be discharged if found not guilty by reason of mental impairment.[11] In other words, in the Magistrates’ Court, a successful invocation of the defence of mental impairment operates, in effect, like any other defence, with no potential liability to supervisory orders.
[10]See ss 23 and 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[11]See s 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Next, even if Ms Clarke failed to prove that she was so unwell as to establish that defence and instead was found guilty, it is still plain that she was very unwell at the time of the alleged offending. Thus, her moral culpability is likely to be regarded as very low. In addition, given also the absence of prior convictions, her age and her personal circumstances, it strikes me as extremely unlikely that she would be imprisoned. Alternatively, at the very least, she would have a powerful argument to the effect that the seventeen days she has spent in custody thus far would be more than enough punishment for the offending alleged. Thus, if not bailed today, even if the matter were dealt with promptly — which is unlikely given the current delays in the criminal justice system in the wake of the COVID-19 pandemic — there is a very high risk that Ms Clarke would be held in custody well beyond the period of any sentence of imprisonment that she might receive.
Accordingly, for either of these reasons, I am satisfied that there are compelling reasons justifying bail.
When regard is had to the fact that Ms Clarke will be going to hospital for assessment under an IAO and that she has accommodation with her partner, as well as his support to attend any necessary appointments and his care generally, the conclusion that there are compelling reasons becomes all the more overwhelming.
Finally, I accept the parties’ joint submission that, in view of the foregoing and the agreed proposed conditions of bail, I should not be satisfied that there is an unacceptable risk that, if bailed, Ms Clarke would behave in the ways proscribed by the Bail Act. That, of course, is not to say that there is no such risk whatsoever. Indeed, given the evidence of Ms Clarke’s poor mental health — albeit improved since her arrest — and her alleged erratic and violent behaviour, a risk of, for example, committing an offence while on bail could not be discounted altogether. Instead, it is simply to observe that, when all matters are considered, I am not satisfied that any such risk is at an unacceptable level.
Conclusion and orders
Accordingly, the application for bail is granted.
Ms Clarke is admitted to bail upon her own undertaking and with the following conditions:
(a) Ms Clarke is to reside at […], Moonambel, Victoria.
(b) Ms Clarke is not to contact any witnesses for the prosecution, except the informant (S/C Ethan Scanlon) or his nominee or Christopher Harris.
(c) Ms Clarke is to comply with the interim Family Violence Intervention Order (No M10062906).
(d) Ms Clarke is to appear (online) at the Magistrates’ Court at Ringwood on 28 January 2021 at 9:30 a.m. (or, if she is still in a designated mental health service at that time, at the next scheduled appearance date at that court when she is not in a designated mental health service) and thereafter as directed by that court (whether online or in person).
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