In the matter of an Application pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
[2000] VSC 52
•17 February 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
COMMON LAW DIVISION
No. 1573 of 1998
In the Matter of an Application pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
---
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF JUDGMENT: | 17 February 2000 | |
CASE MAY BE CITED AS: | No 1573 of 1998 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 52 | |
---
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – s.57 - application for extended leave – homicide – paranoid schizophrenic – cannabis abuse – considerations applicable.
---
APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr C. Beale | Victoria Legal Aid |
| For the Director of Public Prosecutions | Ms I. McGregor | O.P.P. |
| For the Department of Human Services | Mr G. Mullaly | Dunhill Madden Butler |
| For the Attorney-General | Ms A. Mendes-Da Costa | Victorian Government Solicitor |
HIS HONOUR:
This is an application pursuant to s.57(4) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for a grant of extension of leave under a custodial supervision order. The application was filed on 10 November 1999. A previous application of 23 September 1998 had been made, which was heard by Hampel J in this court on 16 February 1999, wherein the learned judge granted leave under the custodial supervision order subject to the conditions stated in His Honour's order and for a period of 12 months. The initial grant of leave had been made on 13 January 1998.
The applicant is now 35 years of age and the facts which are the foundation of these proceedings occurred on 31 December 1989 when the applicant was 25 years of age. The applicant had been born in Yugoslavia and came to Australia at the age of three years with his family. He was educated and then worked here in the period since, except for a period of two years at the age of nine when he returned to Yugoslavia.
The applicant was charged with the murder of the deceased at the applicant's home at Dandenong North on 31 December 1989, she there having been shot twice by the applicant. The deceased was at the time 23 years of age and was six months pregnant with twins. The applicant was arrested on 1 January 1990 and was transferred, as I shall shortly come to, to G Division at Her Majesty's Prison, Pentridge, shortly afterwards. On 5 January 1990 he was certified pursuant to the provisions of the Mental Health Act 1986 and transferred to J Ward in Her Majesty's Prison, Ararat, and later to Mont Park Hospital.
On 9 and 10 October 1990 a committal hearing was conducted at the Melbourne Magistrates' Court, at the completion of which the applicant was committed to trial on a charge of murder. On 5 August 1991 he was presented in this court before the Honourable Justice Teague and a jury on one count of murder.
The informant was called on behalf of the prosecution and four witnesses were called on behalf of the applicant, the then accused. They were Doctors Jappie, Stamp, Glaser, and Walton, and I shall refer to their evidence shortly. On 6 August 1991 the applicant was found not guilty on the ground of insanity. His Honour Justice Teague ordered that the applicant be kept in strict custody at Pentridge until the Governor's pleasure be known and that he be transferred to M6 psychiatric unit at Mont Park when a bed became available. The Governor's pleasure was made known on 17 July 1992 whereupon the Director General determined that the applicant be kept safe custody at Rosanna Forensic Psychiatric Centre.
It is not appropriate on this application for me to repeat in detail the circumstances of the actions of the applicant towards the deceased on 31 December 1989 and of their very tragic consequences. I have read the material in the original prosecution, including the interview of the accused, now the applicant, and the pathologist's report of Dr Opeskin, which I shall not repeat it. That report was made on 21 March 1990.
The applicant had known the deceased for some time, with a brief period of a sexual relationship, and then as a neighbour. I have read the evidence of the police officers concerning the apprehension of the applicant the next day, New Year's Day 1990, near his premises in Dandenong. The material is set forth in the court file, and I shall not repeat it.
Dr Jappie saw the applicant at approximately 3 p.m. on 1 January 1990 in police custody in order to obtain a blood sample, and promptly noted that the applicant's mental state was disturbed. She made a recommendation for a full psychiatric examination. I have read her report of 25 July 1990 to that effect, and also her evidence at the trial and committal. She provisionally diagnosed the applicant as a paranoid schizophrenic. At p.25 of her evidence of 5 August she stated, according to the transcript, that that was her "professional" diagnosis, but plainly she meant and said, "provisional" diagnosis which latter expression appears at her evidence in the committal on 12 October 1990.
Dr Jappie was a Forensic Physician with the Office of Forensic Medicine, and her provisional diagnosis was fully concurred in by specialist psychiatrists who later examined the applicant. Each agreed in the diagnosis of severe schizophrenia. I have examined the reports of Dr Lester Walton, a distinguished psychiatrist of Collins Street, Melbourne, of 7 May 1990 and 20 December 1990, which set forth his reasons for that conclusion. I have also read his evidence before the jury. I have also examined the report of Dr William Glaser of 29 July 1991 forwarded to the Director of Public Prosecutions, and have read his evidence at the trial. Further, I have read the evidence of Dr Stamp, Acting Director of Forensic Psychiatry for Victoria. Dr Glaser was the Consulting Psychiatrist of the Forensic and Psychiatric Service of the Health Department of Victoria, and a member of the Mental Health Review Board.
In referring to that material, I do not of course purport to look behind the jury's verdict, but I do so for two reasons. First, to signify the unanimity of psychiatric opinion concerning this applicant, and the immediacy of the provisional diagnosis by the surgeon, Dr Jappie, on 1 January 1990; and secondly, because of the concern expressed by the family of the deceased, most understandably so, given the tragedy with which they have been afflicted, in their reports pursuant to s.42 of the Act, initially tendered before Hampel J on a previous occasion, but also relied upon before me. I have had close regard to those reports as well as the reports tendered pursuant to s.42 of the family of the applicant. As I say, out of respect for those views and concerns of the families, I have reviewed the material I have just stated.
The applicant thus was held in safe custody at the Rosanna Forensic Psychiatric Centre. He has been under continuous and regular treatment since that time. I have had the benefit on the application before me of the reports of Dr Mark Taylor, consultant forensic psychiatrist of the Victorian Institute of Forensic Mental Health, of 24 December 1999 and of 21 January 2000, and of characteristically thoughtful and careful evidence of his before me on this application.
Dr Taylor had the benefit of an extensive hand-over from his predecessor, Dr Ruth Vine, at the commencement of 1999, and I shall refer to Dr Vine's reports shortly. Dr Taylor gave evidence, and his reports establish it as well, that the applicant suffers from the illness of schizophrenia. It was released by drug misuse, but schizophrenia has both genetic and environmental origins, and the applicant's was a significant mental illness.
Dr Taylor in his evidence, and also in his reports, reviewed in detail the history of the applicant and his treatment whilst under the custody, as I have stated, of those charged with his custody and care. Having been treated with appropriate medication the applicant improved and was transferred from the Acute Ward M6, to the Rehabilitation Ward M5, in July 1992. The applicant had a significant relapse in 1993 and a minor one in 1996, but each was related to the variation of his anti-psychotic medication. In 1993 the medication was stopped and a major relapse occurred. In 1996 it was lessened and a minor relapse occurred. The applicant's progress has not been without difficulty, which is not surprising given his illness. He has not participated in organised rehabilitative activities involving other patients or outside organisations, but he has performed casual work as a painter, which is to his credit.
Over the years he has gradually had increasing periods of leave from the hospital until in January 1998 he was granted leave to reside in one of the Main Drive houses at Rosanna. His leave was temporarily suspended at the beginning of June 1999. There was correspondence between Dr Taylor and Dr Vine concerning that matter, and the matter was the subject of evidence before me of Dr Taylor. I also have read his reports of June 1999 to Dr Vine and of 24 June 1999 to Professor N. James. In essence that temporary suspension was preventative or pro-active and in my view was prudent and justified. There was concern in the treating and caring for the applicant that there may be early warning signs of relapse and that there was some grandiose and possibly religiose thinking, which was a characteristic of the applicant's illness at the time of the actions on 31 December 1989 which brought him before the court.
There was a two week readmission in June 1999. The applicant was carefully monitored. There was no evidence of a florid psychotic relapse, nor any evidence which required him to be further detained in a secure hospital. Thus that preventative and pro‑active readmission achieved its purpose to ensure that there was nothing of a harmful potential and the applicant then returned to Main Drive.
Since September 1999 he has been living alone at Main Drive. He has had some difficulty relating to other persons, which is a part of his illness. He has had regular contact with his family near Bendigo and at weekends has stayed frequently with them. The professional opinion of Dr Taylor is that the applicant's illness is adequately controlled by his medication. The applicant has regular urine tests and other tests to ensure his compliance with his treatment and to ensure that he does not take any illicit drugs.
There was a further limited incident on 28 December 1999, the subject of the second of the reports of Dr Taylor, in which the applicant refused his medication. The applicant appears, according to the report of Dr Taylor to Dr Vine of 11 January 2000 and his evidence before me, to have sought to make a stand, as he was concerned about the side effects of his medication, which Dr Taylor said more likely were the side effects of his illness. He was immediately required again to go into hospital and remained there until 10 January 2000. This again, in my view, was a correct and prudent action by those caring for the applicant to ensure that he did comply properly with his care and treatment. There was by 10 January no evidence of any active florid psychotic symptoms and he was returned to the Main Drive houses.
At times the applicant has been difficult to deal with, many times, but he suffers from an illness and account must be taken of that fundamental circumstance at all times.
As is apparent generally from the purpose and scheme of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and specifically from s.57(2) thereof, before me the essential matter is to seek to ensure that the applicant is not dangerous to himself or to others in the community. The applicant has had difficulty in his personal financial affairs, to which I shall come to in a moment. But Dr Taylor considered that the applicant was not seriously dangerous within the meaning of the Act to himself or to others and that he would be properly cared for in the leave plan which is proposed, which I shall come to in a moment.
I was also most assisted by the evidence of Ms Kelly, a registered psychiatric nurse of Forensic Care Community Programs and a case manager. She commenced caring for the applicant in early May 1999. She, like Dr Taylor, carefully reviewed the progress of the applicant and the difficulties which occurred along the way. She also gave evidence that on 4 February this year an application was made to the Victorian Civil Administration Tribunal to appoint an administrator to care for the applicant's finances and that that order had been made to ensure that he properly handled his finances, a matter which he has had difficulty doing over a period of time. That has now been done. Ms Kelly showed a perceptive understanding of the needs of the applicant, the needs of the community and the difficulties which an applicant suffering from this illness can sustain.
It is proposed now that the applicant be permitted to reside in a transitional flat in Pascoe Vale with the support of the Victorian Offender Support Agency. I have before me a statement of Mr R. Ritchens, psychiatric outreach worker, comprehending the proposal and I am satisfied that the proposal is in the interests of the applicant and is also in the interests of the community and is proper and safe.
The applicant, I am confident, will steadily progress in his improvement as long as he cooperates with the lawful requirements of the doctors and those who are charged with his care. I am satisfied that the applicant understands the need to cooperate with those persons. On occasions he has objected to it, but he now understands that if he is to progress in the community, necessarily he must cooperate with them, and that if he fails to do so, I shall have him brought back and require him to return to hospital. I am confident that will not happen, and I am confident that the applicant is capable of steadily improving himself with the assistance of those who are charged with his care.
Accordingly, I am satisfied of the criteria as set out in s.57(2), and I grant the order sought of extension of leave under the custodial supervision order for a period of 12 months.
Submission was made to me by Ms Mendes Da Costa on behalf of the Attorney General that the period should be less than that, because the present VOSA proposal is for a maximum of 9 months. I am not persuaded that I should limit the period to 9 months, because during that period further steps will be taken to ensure that the applicant's rehabilitation continues and progressively other appropriate accommodation will be found, which is all predicated on him continuing to receive the medical assistance that has been provided to him, and will continue to be provided to him.
Accordingly, I consider that a 12 month grant of leave should be made on the terms that he reside at the address in Pascoe Vale, or such other address as is then directed by his supervisor, and then the matter can be reviewed in 12 months' time.
As I said to the applicant when he was last before me a week ago, I have confidence that he will continue to comply with the treatment, difficult though it is for him at times, and that if he does comply with it, I am confident his leave will continue from here on.
For those reasons, I grant the application.
---
0
0
0