KMD v CEO (Department of Health NT)

The High Court of Australia heard an appeal concerning a supervision order made under the *Criminal Code Act 1983* (NT). The appellant, KMD, was subject to a custodial supervision order. The Court of Criminal Appeal of the Supreme Court of the Northern Territory had conducted a periodic review of this order and released KMD on a non-custodial supervision order. The appeal to the High Court concerned whether this review had miscarried due to KMD's refusal to cooperate with medical experts, and the appropriate standard of review for a finding that the safety of the appellant and the public would not be seriously at risk if released on a non-custodial order. A further issue was whether the Court of Criminal Appeal erred by confirming the custodial supervision order without addressing specific provisions of the *Criminal Code Act 1983* (NT) relating to supervision orders.

The High Court determined that the Court of Criminal Appeal had erred in its review of the custodial supervision order. The Court found that the lower court had failed to properly consider the requirements of the *Criminal Code Act 1983* (NT), particularly Divisions 5 and 7 of Part IIA of Schedule 1, when assessing whether KMD could be released on a non-custodial supervision order. The refusal of KMD to cooperate with medical experts was a relevant factor, but it did not, in itself, justify the continuation of a custodial order without a full consideration of the statutory criteria for release. The standard of review on appeal from a finding that the safety of the appellant and the public would not be seriously at risk was also considered, with the High Court indicating that the Court of Criminal Appeal had applied an incorrect approach.

Consequently, the High Court allowed the appeal, set aside the orders of the Court of Criminal Appeal, and remitted the matter back to that court for reconsideration by a differently constituted bench. The Court directed that the reconsideration should be in accordance with the High Court's reasons, which emphasised the need for proper application of the relevant statutory provisions. Certain orders of the Supreme Court of the Northern Territory were stayed pending the outcome of the remitted proceedings.