R v Hodson No. Sccrm-03-116

[2003] SASC 240

R v HODSON
[2003] SASC 240

Application to cancel an order releasing a person on licence

1. DEBELLE J This is an application under s 293A(15) of the Criminal Law Consolidation Act 1935 to cancel an order releasing a person on licence. Section 293 was repealed by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (No. 91 of 1995) which came into operation on 2 March 1996. Prior to the enactment of the mental impairment legislation in 1995, s 293 dealt with accused persons who, by reason of insanity, were unable to plead. Those against whom orders were made under s 293 must continue to be dealt with under that régime.

2. On 15 March 1966 the respondent was found not guilty of the crime of wounding with intent to cause grievous bodily harm by reason of insanity. The trial judge ordered, pursuant to s 293, that he be kept in custody at the Adelaide Gaol at the pleasure of the Governor.

3. On 21 February 1994 Mohr J ordered the respondent be released on licence subject to certain conditions. Shortly stated, those conditions required the applicant to reside at Glenside Hospital under the direction of the Director of Clinical Services and submit to treatment prescribed by the Director.

4. On 30 July 1998, after examining reports of three legally qualified medical practitioners, Williams J ordered that the respondent continue to be detained on the terms of the licence ordered on 21 February 1994.

5. On 15 February 2002 the respondent applied for a review of the detention order. On 22 July 2002, after reviewing the reports tendered to him, Martin J ordered that the licence should remain in force.

6. On 9 May 2003 the present application for cancellation of the licence was made by the Director of Public Prosecutions. The application was made against the following factual background.

7. In 2003 the applicant was required to reside at Arcadia Lodge, Port Elliot. It is not entirely clear by what authority he was permitted to reside there. I am told it is based on an interpretation of para 1(a) of the order made by Mohr J on 21 February 1994. In my view, it is an extremely liberal interpretation of that order. In any event, it is common ground that Arcadia Lodge is a mental health hostel. The applicant has resided there at least for the past two years.

8. In breach of the terms of his licence, the respondent had gone to Melbourne in March 2003. He presented himself at St Vincent Hospital in Fitzroy seeking treatment for a lung condition. He was diagnosed as having lung cancer. He was admitted and treated and released on 31 March. Medical staff at St Vincent’s Hospital liaised with the respondent’s general practitioner and his case manager at the Flinders Medical Centre. They arranged for the respondent to be flown to Adelaide.

9. The respondent was referred by his general practitioner to the Flinders Medical Centre. The report from his general practitioner states he was suffering from chronic paranoid schizophrenia, as well as increasing depression. He has attempted to commit suicide. When he was absent from Arcadia Lodge, a large kitchen knife was found under his pillow. His medical advisors were concerned that he might either use it on himself or on another resident in either Arcadia Lodge or in a neighbouring lodge. The respondent is also suffering paranoia and auditory hallucinations. He says that he can hear people from the neighbouring hostel talking about him. He does not wish to return to the hostel. The medical advisors are concerned there is a risk to himself and other residents should he return to the hostel in his present state of mind.

10. It seems the respondent has absconded on more than one occasion. In addition to the visit to Melbourne, he has absconded to Adelaide.

11. On the above evidence the respondent has acted in breach of the terms of his licence in at least two respects. First, he has absented himself from the nominated place of residence at Port Elliot, without reasonable cause. Secondly, he has travelled interstate without permission.

12. The respondent is aged 60 years. He suffers both from physical and mental disabilities. I repeat, he has been diagnosed as suffering from lung cancer, diagnosed as a squamous cell carcinoma of the left lung. His mental disability is that he is suffering from paranoia and auditory hallucinations. He is also suffering from depression. He does not wish to return to the Arcadia Hostel. He believes he is being threatened by people who reside there, as well as by others. His mental condition is described in the medical reports which have been placed before me, namely, the report of Dr Nambiar dated 7 July 2002, the report from Dr K.P. O’Brien dated 23 July 2003, and the report from Dr Behrens dated 17 June 2003. It is a common view of these specialists that the respondent should remain at Glenside Hospital for the foreseeable future. He is being treated there for his mental condition and arrangements have also been put in place to enable him to be treated for the lung cancer. The future of the lung cancer is uncertain at this stage.

13. In the light of those reports, the Director of Public Prosecutions now seeks to withdraw the application. I am content to accede to that course. However, given the terms of the psychiatric reports, it is clear that the respondent should continue to reside at Glenside Hospital and not elsewhere. It is unnecessary to vary the terms of the order made by Mohr J on 21 May 1994. Nevertheless, I make it quite clear that the terms of that order do not allow the respondent to reside other than at Glenside Hospital.

14. In my view, para 1(a) enables the Director of Clinical Services or his nominee to grant the respondent leave to absent himself from Glenside Hospital on short occasions only. Paragraph 1(a) does not authorise the respondent to reside at a place other than Glenside Hospital. If it is considered desirable that he should reside elsewhere, then an application must be made to that effect.

15. For the reasons expressed above, the application is withdrawn. I repeat, it is not necessary to make any amendments to the order of Mohr J which will continue in full force and effect.