Director of Public Prosecutions v GRW
[2004] VSC 463
•12 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 1541 of 1995
IN THE MATTER of an application under s.57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by GRW
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2004 | |
DATE OF JUDGMENT: | 12 November 2004 | |
CASE MAY BE CITED AS: | DPP v GRW | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 463 | |
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Criminal law – count of murder – accused chronic paranoid schizophrenic – verdict of not guilty on the ground of insanity - Governor’s pleasure detention – custodial supervision order - application for extended leave – s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Lewis | Office of Public Prosecutions |
| For the Secretary to the Department of Human Services | Mr G. Gilbert | Department of Human Services |
| For the Attorney-General for State of Victoria | Ms F. Ellis | Victorian Government Solicitor |
| For the Applicant | Mr R. Backwell | Victoria Legal Aid |
HIS HONOUR:
This is an application by Mr GRW, filed on 18 August 2004, to be granted extended leave pursuant to s.57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
By s.57(2) the Court may grant an application, if satisfied on the evidence available, that the safety of the forensic patient and of the public will not be seriously endangered as a result of the forensic patient being allowed extended leave. Relevant criteria are set forth in sections 57, 57A, 39 and 40 of the Act. In particular s.40 sets forth, in sub-section (1), numerous criteria, and in sub-section (2), relevant procedural matters, for careful attention. I proceed upon the basis of those matters, and also upon the fundamental consideration that the safety of the community, including of the applicant, is paramount in an application such as this.
It is proposed that Mr GRW be granted extended leave to reside at the Northern Community Care Unit, by means of an extended leave plan which is dated 14 October 2004 and is Exhibit C before me, together with a further condition consequent upon a response of the applicant's brother, Mr RW of 4 November 2004, that the applicant not contact Mr R.W’s wife or children, directly or directly, without Mr R.W’s permission.
The circumstances which bring Mr GRW before this Court were the killing of his mother on 21 May 1995 at Box Hill North. Mr GRW was charged with her murder. Mr GRW’s trial was held in this Court on 4 December 1995. The trial was of one day’s duration. Mr GRW was found not guilty on the ground of insanity. The trial Judge, O’Bryan J, ordered that Mr GRW be kept in strict custody until the Governor’s pleasure was known and that Mr GRW be detained at the Rosanna Forensic Psychiatry Centre. Upon the coming into operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Mr GRW was placed under a custodial supervision order under Part 5 of that Act, which order presently applies to him. Mr GRW ultimately was admitted to the Thomas Embling Hospital, Fairfield, where he remains at the present time. He now seeks extended leave so that he can reside at the Northern Community Care Unit which facility is situated in Preston.
I have read the transcript of the trial proceedings, including, in particular, the report of the pathologist, Dr A.J. Landgren of 10 August 1995 of the autopsy performed upon the deceased on 1 June 1995. The cause of death was multiple stab injuries. I have read the evidence of Detective Senior Constable Pilkington, the investigating officer, and the psychiatric evidence which was called on the hearing, being that of Dr R.G. Vine and Dr L.A. Walton. I have also read the presentment with the prior convictions of Mr GRW from 15 February 1982 to 8 March 1991 which were numerous priors convictions but none for significant violence. There was a number of assaulting police convictions and of criminal damage convictions, and one of intentionally or recklessly causing injury. None of those convictions resulted in imprisonment. There was one two-month term of imprisonment which was for theft. The summary of the proceedings and the facts of the case dated 14 October 2004 is on the Court file and it is not necessary for me to rehearse the material in detail beyond that which I have stated.
The applicant Mr GRW, as I have said, now applies for extended leave. The initial order was made on 4 December 1995 and the nominal term of the current custodial supervision order, the applicant being a forensic patient thereunder, is a term of 25 years. The applicant presently is residing at the Thomas Embling Hospital in Fairfield, in the Daintree Unit. His treating team is Dr Maria Triglia, a psychiatrist, and Mr Graham Farmer. Since April 2003 the applicant has been staying at the Northern Community Care Centre, Preston for three nights weekly, away from the Hospital, on day leave. His community team outside the Hospital is Dr Kathryn Drew, a psychiatrist, and Mr Tom Hall, senior clinician.
The relevant custodial history is this. Following the arrest of the applicant he was hospitalised at the North Eastern Metropolitan Psychiatry Service and then transferred to M6 Unit at Rosanna Forensic Psychiatry Centre. Following an escape attempt he was transferred to Pentridge Prison on 25 July 1995 where he was treated at the Acute Assessment Unit within the Metropolitan Remand Prison. He was transferred back to the M6 Unit at Rosanna in September 1995. His trial before this Court was on 4 December 1995. He spent time at the Ararat Forensic Psychiatry Centre between 1996 and 1998 before being transferred to the M5 Unit at the Rosanna Centre. He was then placed in the Thomas Embling Hospital when it opened to the Daintree Unit and has remained there until the present time.
I have had regard to the affidavit of Mr R.J. Lewis, learned solicitor, of 29 October 2004, as to the family members of the victim and of the applicant being advised and of the lack of response from them other than the letter of the applicant's brother to which I have referred.
I have had the benefit of evidence before me of the psychiatrists Dr Triglia and Dr Drew, and also of Mr Fithall, the manager of the Northern Community Centre Unit, and I have had the benefit of reading a substantial number of reports: those of Dr Triglia of 8 October 2004; of Dr Drew of 3 September 2004; of Dr Yogananada, psychologist, of 29 October 2004; of Mr R. Fithall of 7 October 2004 which report was co-authored by Ms B. Leonard; of Mr G. Farmer, case coordinator, of 11 October 2004; and of Mr T. Hall, senior clinician, of 13 October 2004.
Turning briefly to those reports, the primary report is that of Dr M. Triglia, Exhibit A before me. Dr Triglia has been the applicant's treating psychiatrist since 2 February 2004 when she took over from Dr Grant Lester as consultant psychiatrist at the Daintree Unit. Her report is based upon her regular interviews with the applicant together with a review of his extensive clinical files and discussion of his previous treatment with Dr Lester, and also an analysis of the transcript of the proceedings in this Court of December 1995.
The applicant is a chronic paranoid schizophrenic. He has a lengthy history of psychiatric illness. He was first diagnosed as schizophrenic in 1971. Since the jury’s verdict on 4 December 1995 he has been in custody by means of a custodial supervision order as I have stated. He has been a patient at Thomas Embling Hospital since it opened. In April 2003 he commenced day leave from the Hospital at the Northern Community Centre Unit premises at Preston, spending up to three nights weekly there. He currently resides at the Thomas Embling Hospital and by day leave spends three nights weekly at the Northern CCU.
Dr Triglia in her lengthy report of 8 October 2004 reviewed the history of the matter and provided a detailed diagnosis of the applicant. She concluded as follows:
"(The applicant has) chronic treatment-resistant schizophrenia and a complicated past history, whose symptoms have become attenuated as a consequence of treatment with clozapine and rehabilitation. Despite ongoing symptoms, both positive and negative, he has demonstrated a response to rehabilitation and has been successfully managed under supervision at the NCCU since mid 2003. He indicates his preparedness to continue to comply with medication, abstinence from illicit substances and supervision requirements. I believe that if current conditions are maintained, that is, compliance with clozapine treatment, close supervision at the NCCU and participation in a range of group and social activities, his risk of harm to himself and others if granted extended leave, would be low."
She continued:
"Mr W will require ongoing close supervision of his compliance with medication and with leave restrictions. This should take the form of regular serum clozapine levels to demonstrate compliance, and regular reviews by his community treating team and staff at the Northern CCU. He must remain abstinent of illicit substances and will require periodic or random urine drug screens to ensure this. I also recommend that any further accommodation plans take into account the absolute requirement for ongoing close supervision."
Dr Triglia gave evidence before me and amplified her report. She also brought it up to date, particularly in one notable respect namely that late last month, October 2004, there was a short term deterioration in the condition of the applicant. This was, she said, a consequence of stressors upon the applicant, being first this pending hearing and second some difficulty with another patient with, it appears, the difficulty deriving from that patient and not from this applicant. As a consequence of that short-term problem the applicant was returned for one week to the Hospital and his medication was increased. He now is routinely back three nights weekly at the Northern CCU but the dosage which had been increased remains at that increased level.
In a thoughtful and well-prepared cross-examination Ms Ellis for the Attorney-General probed the parameters of the risks involved in the granting of extended leave to the applicant. In giving evidence under that cross-examination Dr Triglia stated that the inner voice heard by the applicant is not an auditory hallucination and the applicant does not always follow the inner voice and indeed is a type of person who seeks advice from many sources. She said that non compliance with medication or very significant stressors would lead to a deterioration but there are normally signs which are visible before such deterioration proceeds. She agreed that neurological testing showed a cognitive deficit and that the applicant has a number of persisting delusions. Ms Ellis took Dr Triglia to in particular the failure by a very experienced psychiatrist, Dr Walton, prior to the actions of 1995 in anticipating the danger. Dr Triglia said as to that that there is a significant difference between early 1995 and the present time, namely the applicant’s psychiatric condition is now treated with clozapine, which is a significant anti-aggressive treatment, and that the applicant is much better now when treated with that medication than when Dr Walton made his assessment in 1995. Dr Triglia acknowledged that the applicant's commitment to his medication was not total but that he is well aware of the consequences of non compliance, namely return to the hospital, and that the applicant well understands that inevitability if he failed to fulfil his medication regime. She also acknowledged that in the latest deterioration, October 2004, the applicant did not recognise the matters as being symptoms of deterioration until the staff advised him but nonetheless that he did at least recognise their existence although he did not characterise them properly.
There is a further substantial psychiatric report, that of 3 September 2004 Dr Kathryn Drew, psychiatrist, of the Community Forensic Mental Health Service at Brunswick, that is to say outside the Hospital. That was tendered as Exhibit B and was amplified in her evidence before me. The opinion of Dr Drew is set forth at the foot of p.3 and the top of p.4 of her report. She stated:
"Mr W has a complicated history marked by chronic psychosis, previous illicit substance and alcohol abuse, offending behaviour, non compliance and absconding. Since his commitment commenced on clozapine, he has shown significant improvement overall, but continues to demonstrate residual psychotic symptoms, poor insight, and at time poor judgment. Notwithstanding this, since his commencement on clozapine he has been compliant and there have been no episodes of substance abuse, absconding, violence or aggression or offending behaviour. Mr W indicates an intention to keep taking his medication and is aware of the consequences of failure to do so. Mr W has now spent more than a year at the Northern CCU, part-time. Whilst he still demonstrates inappropriate behaviour at times, there have been no concerns about his risk in this time. Mr W has a stable place at CCU that is very closely supervised and is now quite familiar with Mr W. Mr W is aware that he will not be able to take illicit substances were he to receive extended leave, and indicates that he has no desire to do so. While Mr W does exhibit some poor judgment at times, he does not appear to pose significant risk to himself or the community at this time, and in my opinion this will remain the case if he were to be granted extended leave."
Dr Drew, in evidence before me, amplified and affirmed that report and that opinion.
The other specialist report, which is a report of a psychologist and which has become central to these proceedings, is that of Dr Vidya Yogananda, of 29 October 2004, Exhibit E before me. Dr Yogananda unfortunately is unable to attend Court today, but the court has proceeded on the basis of her report which has been actively litigated before me.
Dr Yogananda, on p.2, sets forth the five main risk factors in this case identified as ongoing and long-term, and the remedial measures considered clinically appropriate to those risks. I have examined each of those risks, and the remedial measures, and related them to the "Fit of NCCU in containing risks", which is at the top of p.4 of the report. Dr Yogananda does not recommend against the granting of extended leave, but clearly recommends against the applicant being left to his own devices. Of course, it is not proposed that he is left to his own devices, and it is not proposed that he live alone in a flat. Were there such an application, it would be rejected by the Court for numerous reasons, including that of Dr Yogananda's report. However, what is proposed here is a much more limited application and with clear and close monitoring, to which I shall shortly come.
Of the various risks set forth in Dr Yogananda's report, they are met, in my view, satisfactorily and adequately by the regime at the Northern CCU, which involves regular assessment as to the taking of appropriate medication and the non-ingestion of illicit substances. They are the two critical things with the applicant, in my view, and those matters are well met by the regime proposed to be imposed by the Northern CCU.
The other risks, and the "fit" of them, according to Dr Yogananda, are more behavioural, namely the risk with not getting on with other residents, or of absconding, and I am fully satisfied that the regime put in place by Mr Fithall is appropriate and adequate to meet those obvious risks.
Thus I consider that the matters set forth by Dr Yogananda are properly set forth by her and certainly are centrally to be considered by the Court, but are properly and adequately met by the regime which is proposed to be put in place.
Exhibit D before me is the report of Mr Fithall, co-authored by Ms Leonard, of 7 October 2004, and amplified very substantially by Mr Fithall in his evidence before me. As I said to counsel in discussion, Mr Fithall impressed me as a responsible and insightful person. He stated the regime which is applicable at the Northern CCU, and that the applicant has been staying there, on a graduated basis, over more than a year - not for the whole week, as I have stated - and that Mr Fithall and the persons at the Northern CCU are well attuned to the need to monitor that the applicant continues his medication fully and completely, that he desist from any ingestion of illicit substances, and that he progressively manages to cope with other residents at the premises.
I also have regard to the report of Mr G. Farmer, Case Coordinator, of 11 October 2004, Exhibit F, which concludes that:
"Mr W will require supervision to ensure his continued compliance with medication, and to monitor his mental state. This would be managed jointly between Northern CCU and the Community Forensic Mental Health Service. Mr W needs a structured program of activity to occupy his time, and this is currently being facilitated by the Northern CCU."
I also have regard to the report of Mr Tom Hall, Senior Clinician, of 13 October 2004, Exhibit G, where he concludes:
"If the Court were to provide Mr W with extended leave, this would enable him to take the next step, of living in a community environment outside the Thomas Embling Hospital, in the progress of his order, whilst remaining in a closely controlled setting, with strong on-site staff supervision and oversight. Combined with good monitoring of his medication, this environment offers Mr W a good opportunity to continue to make the progress he has achieved over the last year. This opportunity would allow those most closely connected with his care to assess Mr W's ability to manage greater freedom. However, given the past seriousness of the risk factors, a somewhat lower threshold for any breaches of his conditions would need to be applied. Should the application for extended leave be granted, this would need to be thoroughly and regularly reiterated to Mr W through consistent discussion of the risk management plan."
Finally, although not formally tendered before me, I have read the various annual reports which have been pursuant to s.41(3) of the Act provided to the Prothonotary, namely, those of 12 July 1999, 5 September 2000, 22 November 2001 - for some reason the 2002 document is not on the file - 16 July 2003 and 6 April 2004.
Acting on that substantial and responsible medical and lay material I am satisfied on the material that the safety of the applicant and members of the public will not be seriously endangered as a result of his being granted extended leave. I think in the development of his therapeutic treatment the Order positively ought be made. I consider that the important negative aspects of it have been carefully addressed and satisfactorily answered in those reports which I have cited and the evidence before me.
For those reasons, I grant the application which is sought and on the terms which are in the extended leave plan of 14 October 2004, Exhibit C before me, that is:
(1)That the applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health, or his or her nominee (being a registered medical practitioner);
(2)that he continue to reside at the Northern Community Care Unit 2, 131 Wood Street, Preston, or at any other address as directed by the authorised psychiatrist, or his or her nominee;
(3)that he comply with the lawful directions of the authorised psychiatrist, or his or her delegate;
(4)that he comply with treatment and tests and attend appointments as directed by the authorised psychiatrist, treating psychiatrist, or case manager;
(5) that he abstain from the abuse of alcohol and the use of illicit drugs;
(6)that he not leave the State of Victoria without the written permission of the authorised psychiatrist, or his or her nominee; and
(7)that he not contact directly, or indirectly, the wife of Mr RW, or the children of Mr RW, without Mr RW’s prior permission.
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