In the matter of “HA”
[2014] VSC 237
•21 May 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 03460 of 2013
Note:The name and address of the applicant and any information which may identify him, the victims of the crime, or their current or former places of residence, or any member of their families, or their places of residence, have been suppressed from publication by order of the court
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| -and- | |
| IN THE MATTER of an application for the revocation of a non-custodial supervision order by “HA” | |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2013 and 21 May 2014 | |
DATE OF RULING: | 21 May 2014 | |
CASE MAY BE CITED AS: | In the matter of “HA” | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 237 | |
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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Application for revocation of non-custodial supervision order – Whether applicant would be likely to endanger himself or others if order revoked – Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Williams | Victoria Legal Aid |
| For the Department of Health | Ms K Evans | Legal Services, Department of Health |
| For the Attorney-General (Vic) | Ms N Hodgson | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms J Carpenter | Solicitor for Public |
HER HONOUR:
The applicant seeks an order under s 33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, revoking the non-custodial supervision order which currently applies to him.
Background
In the early hours of one morning in August 1999, the applicant stabbed his mother, his sister and his brother-in-law, in the flat where they were all living. The circumstances need not be repeated here, but they were terrible. His mother and brother-in-law received serious injuries, for which they both required emergency surgery. His sister’s injuries were less serious, and only required suturing.
The applicant was 38 years old at the time, and had no criminal history.
At the applicant’s trial in April 2001, Dr Douglas Bell, a psychiatrist called by the Crown, gave evidence that the applicant had been suffering a schizoaffective psychosis at the time of the offending conduct, that would have deprived him of the knowledge of the wrongfulness of his actions. The jury found the applicant not guilty, by reason of mental impairment, of one count of attempted murder and two counts of intentionally causing serious injury.
On 3 April 2001, Teague J ordered that the applicant be subject to a custodial supervision order, with a nominal term of 25 years. He was committed to the custody of the Victorian Institute of Forensic Medical Health (“Forensicare”).
Extended leave
On 6 February 2007, the applicant filed an application for extended leave, pursuant to s 57 of the Act. On 11 May 2007, Osborn J granted the applicant extended leave to absent himself from Forensicare, on the conditions that he:
(a) Remain under the supervision of the authorised psychiatrist of Forensicare, or his or her nominee;
(b) Continue to reside at his current address, or at any other address permitted in writing by the authorised psychiatrist;
(c) Obey the lawful directions of the authorised psychiatrist;
(d) Comply with the treatment and tests, and attend appointments as directed by the authorised psychiatrist, treating psychiatrist or case manager;
(e) Abstain from the abuse of alcohol and the use of illicit drugs;
(f) Not leave the state of Victoria without written permission; and
(g) Use his best endeavours to obtain employment.
Extended leave may only be granted for a maximum period of 12 months at a time.[1] Two further grants of extended leave were made by Harper J (on 2 May 2008) and Cummins J (on 15 May 2009).
[1]Section s 56(1)(a).
The applicant successfully completed the three terms of extended leave.
Non-custodial supervision order
On 14 May 2010, Coghlan J made a non-custodial supervision order, under s 26(2)(b) of the Act.
Thereafter, a Forensicare psychiatrist, Dr Mark Ryan, has supervised the non-custodial supervision order and conducted annual examinations of the applicant. Dr Ryan’s reports to the court, dated 3 March 2011, 2 July 2012 and 29 April 2013, respectively, have generally been positive. Dr Ryan reported on each occasion that the applicant was managing his illness, refraining from substance abuse, and appeared lucid when interviewed.
The March 2011 report noted that the applicant had sustained a back injury in 2010, which had reduced his employment opportunities. Since that injury, he has been living solely on a disability support pension.
The current application
On 2 July 2013, the applicant filed the current application for revocation of the non-custodial supervision order.[2] The application was supported by the Department of Human Services, the Attorney-General and the Director of Public Prosecutions.
[2]The application is brought under s 31 of the Act, seeking an order under s 33 of the Act.
Section 40 of the Act provides that in deciding whether or not to revoke a non-custodial supervision order, the court must have regard to:
(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.
Section 39 of the Act provides that in deciding whether to revoke a supervision order, 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.
When considering such an application, the court must be satisfied to the relevant standard that it is appropriate to revoke the non-custodial supervision order. Although the civil standard of proof applies in this case, given the serious consequences of such an order, the court must be satisfied in accordance with the principles outlined in Briginshaw v Briginshaw.[3]
[3]In the matter of Derek Ernest Percy [1998] VSC 70; In the matter of “LN” [2006] VSC 62.
In accordance with s 38C of the Act, the DPP gave notice to each of the victims and family members of the applicant, informing them:
(a) That the application for revocation of the non-custodial supervision order was being made;
(b) Where and when the application would be heard; and
(c) That they could make a report to the court regarding the conduct of the applicant, and the impact of his conduct on them.
The only victim or family member who responded to the DPP’s notice was the brother-in-law victim, who opposed the revocation of the supervision order.
In his statutory declaration, made in November 2013, the brother-in-law spoke of the psychological damage which the offending caused him and his now adult son. He expressed fears for their safety, should the applicant’s supervision order be revoked.
The initial hearing
When the application first came on for hearing, on 28 November 2013, I heard evidence from Dr Ryan (from Forensicare), Dr Tejraj Tawde (the applicant’s treating psychiatrist from the Goulburn Valley Area Mental Health Service), and Mr Morrie Ramadan (a registered nurse with the Goulburn Valley Area Mental Health Service, who is the applicant’s case manager). Their oral evidence supplemented their written reports, which had previously been provided to the court.
Dr Ryan, Dr Tawde and Mr Ramadan unanimously supported the revocation of the current order. In summary, they reported that the applicant has been compliant with his medication regime,[4] has abstained from illegal drug use and alcohol abuse, and has been free of psychotic symptoms since around 2002. In their opinion, the applicant has a good insight into the need to continue taking his medication, and the potential consequences of relapse if he does not. They all expressed the opinion that the risk of the applicant presenting any danger to himself or others was low.
[4]He is currently on an antipsychotic medication, a mood stabiliser and an anti-depressant.
During the course of the oral evidence, several matters arose which caused me to seek further explanation from the witnesses.
The first matter related to some results obtained in mandatory drug screenings:
(a) On a number of occasions since 2008, the applicant had tested positive to opiates. Mr Ramadan said that these results could be explained by the applicant’s use of codeine-based medications to manage his back injury. However, one positive test result, in 2008, could not be readily explained in that way, as it pre-dated his back injury.
(b) On one occasion in 2009, the applicant tested positive to cannabis. Although subsequent screenings were negative for cannabis, Dr Tawde could only speculate that the 2009 test result was a false positive, or the result of contamination.
(c) Another concern was that the applicant tested positive in five screenings over 2009 and 2010 to tricyclic anti-depressants, which had evidently not been prescribed to him. This was of potential concern because there was evidence that the applicant has, in the past, taken other people’s prescription medication.
In addition to the drug screening issues, I was concerned that there was no evidence as to the attitude of the applicant’s wife and immediate family regarding the possible revocation of the non-custodial supervision order. In particular, there was no evidence about their capacity to detect early warning signs (if the applicant’s mental health began to deteriorate), or whether they were prepared to alert the authorities if the applicant relapsed.
I adjourned the matter, to enable the parties to make further investigations, and put further material before the court, in relation to the drug screen results and the family’s position.
The later hearing
On 5 March 2014, the court received supplementary reports from Dr Tawde and Dr Ryan.
Dr Tawde’s report, dated 11 February 2014, addressed my concerns about the position of the family members. Dr Tawde interviewed members of the applicant’s immediate family and reported that they are in favour of the application.
Dr Tawde said that all of the applicant’s immediate family demonstrated an ability to identify possible relapse warning signs, and an understanding of the available options, should assistance or emergency treatment be required. They are also willing to report the applicant to the appropriate authority, if his mental health declines - if need be, without his consent.
Dr Ryan’s supplementary report, dated 5 March 2014, focused on the applicant’s drug screenings. Since the initial hearing, Dr Ryan had reviewed information provided by Dr Sam Rambaldo, Director of Pathology at Goulburn Valley Health. Dr Rambaldo explained that Goulburn Valley Health’s drug screening facilities are not as sophisticated as those in tertiary institutions, and are susceptible to producing false positives. Dr Rambaldo believes that such a result occurred when the applicant tested positive for cannabis, since he has only ever tested positive once and denies ever using the drug.
Dr Ryan’s investigations also determined that the applicant’s general practitioner has been prescribing him with codeine-based medications since 2007, for various ailments, which could explain the positive test for opiates before he injured his back.
Finally, Dr Ryan’s report discussed the applicant’s positive screenings for tricylic antidepressants. Dr Ryan noted that, in the past, it was common for people to abuse tricylic antidepressants to help them sleep; also, they were often used in deliberate overdoses. As a result, tricylic antidepressants are now rarely prescribed. The applicant has, for many years, been prescribed the anti-psychotic medication quetiapine, which is well-known for producing false positives to testing for tricylic antidepressants. Indeed, Dr Ryan discovered that the applicant had featured in a case study about these false positive results, which was published in the Australian and New Zealand Journal of Psychiatry.
Based on this additional information, Dr Ryan was satisfied that the applicant has not been abusing medication or taking illegal drugs.
Dr Ryan remains of the opinion that the applicant’s risk of harm towards himself and others continues to be low. Given the long period of mental state stability, good insight, consistent compliance and well-established relationship with his treating team and general practitioner, Dr Ryan continues to support the revocation of the non-custodial supervision order.
Reasons for decision
I acknowledge the seriousness of the incident that led to the applicant’s initial custodial supervision order. I have no doubt that it had terrible consequences for the victims and family members. However, the applicant’s mental illness came to him later in life, and the incident represents his only known psychotic episode.
The applicant has been in remission for more than ten years, largely because he has taken responsibility for his treatment and is mindful of the consequences should he cease taking medication.
Following Dr Ryan’s further report, I am satisfied that the test results for various substances have been adequately explained, and the applicant is not abusing drugs of any kind.
I am satisfied that there are adequate resources available to the applicant in the Goulburn Valley region, to ensure he has ongoing support and treatment.
In light of Dr Tawde’s further report, I am satisfied that the applicant’s immediate family support his application, will properly monitor his behaviour, and will seek assistance from the appropriate authorities should his mental health deteriorate. They have expressed a preparedness to do that, even if the applicant refuses assistance.
I do not doubt the genuineness of the brother-in-law’s fears about his own and his son’s safety. However, given the uncontradicted medical evidence before me, I am not persuaded that there is a reasonable basis for those fears.
Having taken all these matters into account, I am satisfied that the applicant is not likely to endanger himself or others because of his mental impairment, should the application be granted.
In the circumstances, I am satisfied that it is appropriate to grant the application. Accordingly, I will order that the non-custodial order be revoked.
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