In the matter of an application for further review of a custodial supervision order of “BS”
[2016] VSC 524
•31 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 06702
IN THE MATTER of a court ordered review of a custodial supervision order pursuant to s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
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IN THE MATTER of a further review of the custodial supervision order of “BS”
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 August 2016 |
DATE OF JUDGMENT: | 31 August 2016 |
CASE MAY BE CITED AS: | In the matter of an application for further review of a custodial supervision order of “BS” |
MEDIUM NEUTRAL CITATION: | [2016] VSC 524 |
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CRIMINAL LAW – Mental Impairment – Major Review – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 27(2), 32(1)(a), 32(5) – Order confirmed.
CRIMINAL LAW – Application for a suppression order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 75 – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L Martin | Victoria Legal Aid |
| For the Director of Public Prosecutions | Ms L Wilkinson | Mr J Cain, Solicitor for Public Prosecutions |
| For the Attorney-General | Ms K Grinberg | Victoria Government Solicitor |
| For the Department of Health and Human Services | Mr S A Moglia | Solicitor to the Secretary to the Department of Human Services |
HIS HONOUR:
Introduction
This proceeding came before the Court pursuant to a custodial supervision order (“CSO”) that I made on 20 August 2013, under the terms of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”). On that day, I ordered, pursuant to s 27(2), that there be a review of the CSO within three years.
The purpose of the review is to determine whether the CSO should remain in force. Further, the reviewee, BS, has sought, as part of the review, to have me make a suppression order under s 75, prohibiting publication of his name, or anything that might in the future identify him as the subject of the CSO.
At the conclusion of the hearing on 26 August 2016 I ordered that the CSO be confirmed. I further ordered that the matter be brought back to the Court for review in another three years. I reserved judgment on the application for the suppression order. My judgment and reasons on both issues follow.
Background
The background to this matter is detailed in the reasons for judgment that I delivered on 20 August 2013. By way of summary, the index offences occurred on 16 December 2011 when the reviewee stabbed both his parents to death at their home in Vermont South.
On 30 January 2013, an investigation was conducted under Pt 2 of the Act before King J. The jury empanelled on that occasion found the reviewee to be unfit to plead to the two charges of murder that had been proffered against him. A special hearing was subsequently conducted before me in accordance with the procedure contemplated under Pt 3 of the Act. On 5 June 2013, the reviewee was found not guilty by reason of mental impairment. On 20 August 2013, I ordered that he be placed on a CSO for a nominal term of 25 years and that the matter be brought back to the Court for review after three years.
Review of CSO
Legal Framework
On a review of a CSO, the Court must confirm, vary the place of custody or vary the order to a non-custodial supervision order.[1] Section 39 of the Act sets out the guiding principles to be applied in determining whether to make, vary or revoke a supervision order:
(1)In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
[1]s 32(1) Act.
The principle to be applied under that section was considered by the Court of Appeal in NOM v Director of Public Prosecutions (Vic).[2] The Court held that s 39 involves:
balanc[ing] the interest of the liberty of the detainee with protection of the community and in doing so assess[ing] risk factors which, in turn, depend upon value judgments’.[3] At the forefront of the application of s 39 are the two public interests of ‘ensuring the safety of the community’ and of ‘protecting the right to liberty of one of its members’.[4]
Also inherent in the application of s 39 is a principle of parsimony. That principle requires the least infringement of liberty that is commensurate with safety of the community.[5] That is, ‘[s]upervision is a restriction on liberty and autonomy and it can be justified only where it is found to be necessary’.[6]
[2][2012] VSCA 198.
[3]Ibid [21].
[4]Ibid [36].
[5]Ibid [66]–[71].
[6]Ibid [70].
Section 40 of the Act details the considerations to which the Court must have regard when applying the parsimony principle in s 39. Those considerations are:
(a)the nature of the person’s mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d)the need to protect people from such danger; and
(e)whether there are adequate resources available for the treatment and support of the person in the community; and
(f)any other matters the Court thinks relevant.
In addition, s 40(2) provides that the Court cannot significantly reduce the degree of supervision to which a person is subject, unless it:
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on —
(i) the person’s mental condition; and
(ii)the possible effect of the proposed order on the person’s behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the Court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the Court considers necessary.
The mandatory considerations set out in s 40(1) need not be given equal weight.[7] Ultimately, a decision on an application of this nature is discretionary, provided the decision is guided by the principle set out at s 39. The weight attributed to individual considerations will shift with the facts of the case.
[7]NOM v DPP & Ors [2012] VSCA 198, 20 [49]; Minister for Immigration and Citizenship v Khadgi and Anor [2010] 274 ALR 438, [60]–[65] (Stone, Foster and Nicholas JJ); R v AB (No. 2) (2008) 18 VR 391, 405 [45] (Warren CJ, Maxwell P and Redlich JA).
In accordance with s 38C, the Director of Public Prosecutions (DPP) gave notice of the hearing of this review to the relevant family members, and victims of the offence (as defined in s 3) with which the reviewee was charged. Section 42 requires the court to take into account reports provided by family members of the victim. A victim impact statement of the reviewee’s sister, AS, was handed up at the hearing. I have had regard to that victim impact statement.
Contemporary psychiatric opinion
A report by Dr Gideon Dubow dated 5 August 2016 was filed with the Court for the purpose of this review. Dr Dubow also gave oral evidence at the hearing before me.
Dr Dubow has been the reviewee’s treating psychiatrist at Thomas Embling Hospital (TEH) since February 2016 when he commenced employment there. He has interviewed the reviewee on five occasions. According to Dr Dubow, the reviewee has a primary diagnosis of schizophrenia, and a history of drug and alcohol abuse. He notes that the reviewee experienced auditory hallucinations and paranoid delusions as far back as September 2007, when he was admitted to the Macquarie Hospital in North Sydney. As part of his illness, he has also had thought disorder and general behavioural disorganisation.
The reviewee was subsequently treated by the community services of Eastern Health, Victoria. He was re-admitted to his local psychiatric hospital in May 2008 and was discharged on a depot injection and placed on a Community Treatment Order.
In January 2010, the reviewee was discharged to the care of a private psychiatrist on the basis that his symptoms of psychosis appeared to have remitted. Evidence showed that he only saw his private psychiatrist on two occasions, and received no treatment between his last private treating session and the index offences.
The reviewee was admitted to TEH on 29 December 2011 as a security patient following the index offences. Hospital records showed that he was acutely psychotic and profoundly deluded at the time of admission.
Although his psychotic illness has been resistant to a number of antipsychotic medications, it appeared to have responded well to Clozapine which is reserved for the most resistant type of psychotic illness. Dr Dubow reports that the reviewee has improved with regard to some aspect of his illness since commencing Clozapine treatment. However, he notes that the reviewee remains profoundly delusional in that he continues to hold the belief that people are responsible for him engaging in astral travel.
Further, Dr Dubow notes that the reviewee continues to experience negative or deficit symptoms of schizophrenia. These include difficulty in initiating tasks adequately, limited social skills, limited thoughts, difficulty in planning activities, lack of sufficient insight into the nature of his illness and the impact of his illness on his life. According to Dr Dubow, the reviewee needs encouragement to complete self-care tasks, and does not participate in recreational activities other than playing Uno with staff and occasionally cooking a meal for himself.
On a more positive note, Dr Dubow reports that the distress and anger associated with the reviewee’s delusional beliefs have largely dissipated. He further notes that the reviewee’s relationships with staff have also improved in that he follows instructions, and complies with requests and is trusting of his treating team and his fellow patients.
The reviewee appears to have no community support other than from his aunt in Queensland who recently began contacting him by telephone. Dr Dubow indicated that the treating team hopes to foster his contact with his aunt as well as encourage him to participate in the forensic group program and the community gardening project.
Dr Dubow states that the assessment of the reviewee’s mental state during recent reviews suggests that the risk that he poses to others has been significantly reduced by the combination of attenuated psychosis, the absence of drug use, the presence of negative symptoms which had reduced the intensity of emotions, and his satisfactory living arrangement. Dr Dubow notes it is likely that this level of risk will endure for as long as he remains a forensic patient at TEH. However, he indicates that it is possible that the risk could increase if he were transitioned to a less supervised environment.
The current recommendation of the treating team led by Dr Dubow is for the reviewee to progress through the rehabilitation units of TEH.
Dr Dubow concludes that:
In the setting of his current environment, [the reviewee] is currently at low risk to the community based on his sustained period of cooperative and settled behaviour during which time he has not made threats nor behaved in a hostile manner. However, his ongoing significant delusions and his lack of insight into his illness do create more uncertainty about how [the reviewee] might fare were he to be in a less supervised environment. This uncertainty is reflected in the fact that [the reviewee] is still not permitted to have unescorted leaves.
In relation to feasibility of community placement for the reviewee, Dr Dubow highlights two main issues that make it difficult to establish community placement at this point in time. The first issue is the possibility that through a combination of non-compliance, drug use and the stresses of coping with less support, his psychosis could intensify, thus increasing his risk of interpersonal violence. The second issue stems from his relatively poor independent living and social skills, and the lack of support from family and friends.
In addition, Dr Dubow reports that the reviewee stated that he is content staying at TEH and that he does not have a strong wish to leave TEH at this time.
To conclude, Dr Dubow states:
It is likely that [the reviewee] may always have some degree of psychosis and that plans will need to be made to discharge [the reviewee] into the community with appropriate levels of psychiatric support notwithstanding the presence of ongoing psychosis. However, in my opinion I believe that an ongoing period of treatment as an inpatient at TEH is still required.
It was against this background, and in the face of there being no opposition from the reviewee, or his counsel, that I made the orders confirming the CSO that I had previously made on 20 August 2013. There was no opposition to my directing that there be a further review in three years’ time.
Application for Suppression Order
Section 75(1) of the Act provides as follows:
75 Suppression orders
(1)In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order—
(a)that any evidence given in the proceeding;
(b)that the content of any report or other document put before the court in the proceeding;
(c)that any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified—
must not be published except in the manner and to the extent (if any) specified in the order.
Section 75(2) empowers the court to make such an order on the application of a party, or on the court’s own initiative.
Counsel for the reviewee submitted that, relevantly, a review under the provisions of the Act is a ‘proceeding before a court under this Act’. That seems to me to be so. Accordingly, there is jurisdiction to entertain the application for a suppression order.
However, what is sought in this application is not merely an order that any evidence given during the course of the review itself (s 75(1)(a)) and the content of any report or other document put before the court in the course of that review (s 75(1)(b)) be suppressed, but something far broader and far-reaching. In reliance upon s 71(1)(c), the reviewee seeks to have prohibited from publication, it would seem, indefinitely, or at least for the foreseeable future, any information that might enable him to be identified, and presumably linked to the index offences of which he was found not guilty by reason of mental impairment.
It is tolerably clear, from the evidence placed before me in support of this suppression application, that it was prompted by the publicity that was given to the practice of day release, under supervision, of persons such as the reviewee, by Channel 9’s A Current Affair in June of this year. There had also been similar publicity relating to such matters in late May, when the Herald Sun published an article that did not concern the reviewee personally, but commented adversely upon the practice of permitting persons like him to engage in escorted leave.
The reviewee’s affidavit, filed in support of the application for suppression, makes the following points:
·he was distressed to discover that the details of how he killed his parents would feature in the Channel 9 program.
·he was shocked to learn that his ex-partner would speak about how frightened she was of him.
·he felt endangered because none of the other patients at TEH was aware specifically of what he had done, and he preferred that they be kept in ignorance of that matter. That feeling of danger persisted for several weeks after the program was shown, although nothing came of it.
·he was upset that TEH had been presented by Channel 9 in a bad light.
·he was stressed for some four to six weeks after the program had been shown, and declined for some weeks to take escorted leave; and
·he was unhappy at the thought that another television program or newspaper might broadcast or print more information about him in the future.
In addition to the reviewee’s affidavit, there was tendered before me an affidavit by Sarah Westwood, his solicitor, who is employed by Victoria Legal Aid (“VLA”). She deposed to the fact that on 14 June 2016 VLA had filed an application on the reviewee’s behalf, and on behalf of another forensic patient, seeking, in effect, injunctive relief under s 75 to prevent the Channel 9 program from going ahead that evening. That application had been heard by Cameron J in the Practice Court. It had been refused.
Included in the material in support of the application before her Honour was a letter dated 14 June 2016, addressed to the Supreme Court, which supported the making of an order under s 75 in relation to the other individual who had, together with the reviewee, sought relief in the Practice Court. The author of that letter was Dr Mark Ryan, a consultant psychiatrist and assistant clinical director, inpatient operations, at Forensicare. He wrote in general terms of the likelihood that identification in the media would have an adverse impact upon a forensic patient’s general wellbeing and ultimately their rehabilitation. He noted that such identification in the media had the potential to increase stigma, and to overstate the risk that those with mental illness presented to the community.
In addition to this written material, I heard oral evidence from Dr Dubow regarding the harm that future publicity that identified the reviewee might do to his wellbeing and prospects of rehabilitation. He largely confirmed what the reviewee had said in his own affidavit.
The application for a suppression order in these terms was supported by the Department of Human Services. Neither the Director of Public Prosecutions nor the Attorney-General took any stance in relation to that application.
It is one thing to seek a non-prohibition order relating to proceedings that take place within a court. A judge is in a good position, in such circumstances, to weigh up the arguments for and against suppressing such material, in the public interest, because the content of what is sought to be protected is known, and finite.
The position regarding non-identification of the reviewee in all future media reporting seems to me to be quite different. It is no longer simply a matter of weighing up the principle of “open justice” as against the need to protect some particular interest that is equally, or perhaps even more, weighty.
What the reviewee seeks in the present application is a total ban on being named in the media as the person who killed his mother and father, and who was found not guilty by reason of mental impairment. Yet my original judgment, identifying him by name, and describing in detail his actions on the day in question, as well as my reasons for granting a CSO, is readily available to all, and can be read on the internet. Counsel for the reviewee has, sensibly, not sought to have me order the redaction of that judgment. In a sense, therefore, it might be said that this is a case, at least in part, of seeking to shut the stable door after the horse has bolted.
In my opinion, an order of the type sought by the reviewee in this case should only be made upon evidence of a most cogent nature, indicating that such an order is required in the public interest. As a general proposition, the media are entitled to report whatever they see fit, save where to do so would be so very detrimental to the reviewee, or to the wider public interest, that s 75 could legitimately be invoked to prevent that from happening. It would require powerful evidence to persuade me that a prohibition upon publication, along the lines of what is now sought, would be warranted in the public interest. That evidence is singularly lacking in the present case.
That is not to say that I reject the reviewee’s claim that he has suffered distress as the result of past publicity, or that he would suffer further distress if programs such as that run by Channel 9 were to be replicated. The distress is real, but on the evidence, transient. It falls well short of the type of detriment which might conceivably justify the order sought.
As for more general claims, such as those put forward by Dr Ryan in the letter to which I have referred, I would simply say that his opinion was expressed at a high level of abstraction, and would be applicable to all patients at TEH.
No doubt it is true that as a matter of general therapeutic practice treating doctors might prefer that there be suppression orders in place for all their patients. However, as Hollingworth J recently observed in In the matter of an Application under s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 by Sestilio Tiziano Cavallari,[8] the legislation has not created a regime of that kind. It remains necessary therefore to consider what the public interest requires in the circumstances of each case.
[8][2016] VSC 478.
For the reasons set out above, I am not prepared to make the suppression order sought under s 75(1)(c).
It was acknowledged during the course of argument that there was no need to make an order under s 75(1)(a) or (b) in this case since there was nothing said during the course of the review that could conceivably be of any interest to the media, or that could detrimentally affect the reviewee should it be published. All that could be said about that review is that it took place, and that, by consent, the CSO was confirmed. In those circumstances, nothing more need be said regarding the matter of suppression.
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