R v Kerrick John Barrie (Applicant) No. Sccrm-96-393 Judgment No. 6362 Number of Pages 8 Criminal Law

[1997] SASC 6362

IN THE SUPREME COURT OF SOUTH AUSTRALIA

BLEBY, J

Criminal law - probation, parole, release on licence and remissions - applicant found not guilty, by reason of insanity, of wounding with intent to do grievous bodily harm - detained in custody in James Nash House - order made pursuant to s293a of the Criminal Law Consolidation Act that he be released on licence to a closed ward at Glenside Hospital if one became available - no medium term closed ward available - matter called on again - consideration of whether there was evidence justifying a variation of the order so that the applicant would be released initially into a closed ward but shortly thereafter into an open ward facility - consideration of the requirements imposed by s293a of the Criminal Law Consolidation Act - requirements satisfied - new order made with appropriate conditions. Criminal LawConsolidation Act, 1935 ss292, 293a, referred to.

ADELAIDE, 8 and 28 August 1997 (hearing), 15 September 1997 (decision)

#DATE 15:9:1997

#ADD 22:9:1997

Appearances:

Applicant:

Counsel: Mr W F Braithwaite

Solicitors: W F Braithwaite

R:

Counsel: Ms G Davison

Solicitors: DPP (SA)

Order: application allowed.

BLEBY J

On 18 October 1994 Kerrick John Barrie was tried by judge alone and found not guilty, by reason of insanity, of wounding with intent to do grievous bodily harm. Briefly, the circumstances were that on 1 February 1994 the applicant's mother went to visit him at the house in which he was then living. She took some washing from the outside clothesline and brought it into the lounge room. She folded the washing and, without warning, the accused ran towards her. She was attempting to leave through the back door when he stabbed her several times causing wounds to the upper chest, upper abdomen and back. There was no apparent motive for the attack.

Prior to the attack the applicant had a long and well-documented history of mental illness, having been first diagnosed as suffering from schizophrenia in 1975. It was on the basis of his chronic paranoid schizophrenia that the applicant was found not guilty by reason of insanity of the offence with which he was charged.

He was ordered to be detained in custody in James Nash House pursuant to s292(2) of the Criminal Law Consolidation Act 1935 ("the Act").

On 14 October 1996 the applicant applied pursuant to s293a of the Act for his release on licence from James Nash House. Section 293a was repealed by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995, but it continues to apply to this case because the trial commenced before 2 March 1996, the date after which substituted provisions took effect.

On 21 July 1997 I was satisfied that the applicant should be released on licence provided that a suitable closed ward placement was available for him at Glenside Hospital. It was not then available, and so the order was conditional upon its availability, as the medical evidence before me suggested that he should only be released to a closed ward facility, with the possibility, subject to further treatment and review, of his being suitable for treatment in an open ward. That would have required a further variation to my order of 21 July if the circumstances then required it.

Shortly after making that order, counsel for the applicant sought to have the matter re-opened because, so I was told, it was apparent that the desired medium term closed ward accommodation would not become available, and that the medical practitioners who had provided the reports on which I previously acted were now of the view that open ward accommodation would be suitable after an initial period in the closed ward. Further conditions were sought relating to the applicant's inability to leave the Glenside premises without supervision.

Because of this apparently significant change in the views of the medical practitioners, I was not prepared to vary the order without hearing oral evidence from the practitioners concerned. I therefore reconsidered the application in the light, not only of the previous documentary medical evidence placed before me, but in the light of the further oral evidence to which I will shortly refer.

Before ordering release on licence of a person the subject of a detention order, the Court must first have obtained and considered the report of at least three legally qualified medical practitioners, each of whom has separately examined the person, and at least two of whom are psychiatrists with experience in forensic psychiatry, one of them not being employed in the part of the institution in which the person is being detained (s293a(11) of the Act). I also have to be satisfied that the applicant's next of kin and the victim of the offence have been given reasonable notice of the application.

The matters which I am required to take into account are set out in sub-ss(13) and (14) of s293a. They are as follows:

"(13) In determining an application for the release of a person on licence or for variation of the conditions of his or her licence, the court -

(a) must seek to make a determination that is the least restrictive of the person's freedom and personal autonomy as is consistent with the safety of the community;

and

(b) to that end, must have regard to -

(i) whether the person is suffering from a mental illness or has an intellectual impairment;

(ii) whether, if the person were to be released, his or her behaviour (whether or not arising from a mental illness or intellectual impairment) would be likely to constitute a danger to another person, or to other persons generally;

(iii) whether there would be adequate resources available to the person in the community for his or her treatment and support;

(iv) whether the person would be likely to comply with the conditions of his or her licence;

and

(v) such other matters as the court thinks relevant.

(14) In fixing or varying the conditions of a licence, the court must also have regard to the interests (so far as they are known to the court) of the person's next of kin and of the victims (if any) of the offence with which the person was charged."

Dealing first with the matters raised in sub-s(14), I was furnished with the particulars of the views of Heather Barrie, the applicant's mother and the victim, and of Sam Rainey, the applicant's uncle. Although the latter does not come within the definition of "next of kin" for the purposes of sub-s(14), I was assisted by the reported views of Mr Rainey. The views of Mrs Barrie and of Mr Rainey were conveyed through a written report dated 13 March 1997 from Mr A O Barratt, Senior Social Worker of the Forensic Mental Health Services of James Nash House.

Both Mrs Barrie and Mr Rainey are highly supportive of the application. Mrs Barrie has forgiven her son for what he did to her, and realises that he was unwell at the time. She supported his release on licence, in the first instance to a closed ward at Glenside Hospital and then, after a settling in period, in an open ward. Similar views were expressed by Mr Rainey. It is apparent that both these people will be supportive of the applicant in the future.

So far as the medical evidence is concerned, I had before me reports dated 3 January 1997 and 1 July 1997 of Dr Craig Raeside, who is the applicant's treating psychiatrist, and who also gave evidence at the applicant's trial. I also had a report dated 28 April 1997 from Dr K P O'Brien, the Director of James Nash House, and a report dated 28 April 1997 from Dr Harry Hustig, Director of Statewide Services and Director of Extended Care at Glenside Hospital. I heard oral evidence from Dr Hustig and Dr Raeside.

All doctors were fully aware of the circumstances giving rise to the applicant's detention, and all recognised that he had made gradual but significant improvement since his admission to James Nash House.

Dr Raeside in his report of 3 January 1997 considered that the applicant required further time to stabilise at James Nash House before he could recommend any transfer to Glenside.

Dr O'Brien, in his report of 29 April 1997, considered that he could appropriately be transferred to Glenside Hospital, initially in a closed ward "before a cautious re-introduction into a more open setting", although in that regard he would place great weight upon the views of Dr Hustig.

Dr Hustig, in his report of 28 April 1997, considered that the applicant could be managed in a less secure environment. He had some reservations about the rehabilitation milieu of the closed wards of Glenside, but he accepted that in the longer term the applicant's needs would be best met in the open asylum units, while those services existed. He would require continued supervision of his medication and assistance in maintaining his activities of daily living.

Dr Raeside's report of 1 July, given after he had read the earlier reports of Dr O'Brien and Dr Hustig, concurred generally with their remarks. However, he considered that the release should be to a closed ward and not an open ward "at least initially". He noted a further stability in the applicant's condition since his previous report.

It was on the basis of those reports that I was prepared to order the applicant's release on licence to a closed ward at Glenside Hospital if one became available. I am now asked to direct his release "initially" to a closed ward, but with his almost automatic transfer to an open ward within a relatively short space of time.

I heard evidence from Dr Hustig as to the conditions in Kurrajong Ward, the closed ward at Glenside to which the applicant would be transferred. It is a highly structured ward and in many respects would allow the applicant less freedom than he currently enjoys in his present ward at James Nash House. The primary purpose of a stay in Kurrajong Ward would be to enable the staff, by observation and trial, to work out an appropriate treatment plan and also to enable the staff to be able to learn to feel comfortable with the applicant's improvement, given the circumstances of his detention. The period would initially involve some accompanied leave within the grounds and then gradually extending periods of unsupervised but carefully monitored leave, again within the grounds, designed to give him an opportunity to demonstrate sufficient self-control and responsibility. The nature and extent of that leave would depend entirely upon the applicant's responses.

If he could demonstrate that he was able to care for himself and was not responding inappropriately to other patients and was compliant with his medication regime, Dr Hustig would anticipate that he would be released after a period of some weeks, possibly as few as two, into an asylum ward of Glenside Hospital. Patients are free to leave those wards during the day, but may be put on strict signing in regimes, for breach of which they may be returned to Kurrajong Ward. The applicant would not be released, however, to an asylum ward whilst he was still considered to be in a state where he might constitute a danger to other people. There would then be a review of his medication until it was considered safe to release him further. If his behaviour was in breach of his licence, if he began assaulting staff or began to evade his medication, Dr Hustig would wish to be able to return him to James Nash House.

Dr Raeside agreed with the proposed plan explained by Dr Hustig. He explained his hesitation in the report of 4 January 1997 as being based on some behavioural difficulties shortly beforehand which required the applicant to return to a more secure ward at James Nash House. At that time he considered a transfer to Kurrajong Ward would have been more aggravating to the applicant than his remaining in Clare Ward at James Nash House. He regards the applicant as having sufficiently settled to tolerate going to Kurrajong Ward for a brief stay before moving to an open ward. His major concerns about the applicant's movement to an open ward were his potential aggression towards staff or other patients - he tends to react angrily to frustration - and his possible exposure to alcohol or drugs. There would need to be strict conditions imposed relating to those concerns. He was nevertheless supportive of the release ultimately to the open ward.

I turn to the matters to which I am to have regard under sub-ss(13) and
(14) of s293a.

The applicant is aged 43. He has a long history of chronic paranoid schizophrenia marked by paranoid delusions, thought disorder, auditory hallucinations and instability of his mood with irritability and aggression. It was because of the effects of that condition that he was found not guilty by reason of insanity of the offence with which he was charged. I have regard to the fact that he is suffering from a mental illness, and that under treatment he has made a gradual but significant improvement in his condition. All three doctors who have examined the applicant agree that he has reached an appropriate stage in his treatment, and that his condition is now sufficiently stable to enable him to be released from James Nash House to a controlled environment in Glenside Hospital as an in-patient, but subject to a number of reasonably stringent conditions. All the doctors are agreed that he should be confined initially to a closed ward. There is, of necessity, some degree of uncertainty as to his ability to cope in an open ward, particularly as all the doctors had agreed, in their written reports, that his release should be to a closed ward. At one stage I considered whether the taking of the next step into an open ward should not be undertaken without a further variation of the conditions of his release on licence. Having heard the oral evidence, however, I am satisfied that, subject to the imposition of the necessary conditions, there are sufficient safeguards in the internal assessment system to ensure that he will not be transferred to an asylum ward unless he has demonstrated an ability to live under open ward conditions and is prepared to abide by the conditions of this order.

If he is released on licence, eventually to an open ward, I do not believe he is likely to be a danger to members of the public or to his mother or uncle. If there is any risk, it is in respect of patients and staff of the hospital. If one had to be sure that there was no risk, persons under detention would never be released on licence. I am satisfied that in the case of this applicant, whilst there will always be some risk of harm, the evidence suggests that if he were able to cope in a more stressful environment than his present one, and Kurrajong Ward would be more stressful, then he would be likely to be successfully integrated into an open ward. Timing of that and whether it should occur will depend on the applicant's compliance with the conditions which I intend to impose and on the assessment of Dr Hustig. There will be adequate mechanisms available to Dr Hustig to reverse the process if necessary and to allow a properly supervised progression from the closed ward to an open ward at the appropriate time.

I consider that in whichever ward the applicant is housed, there will be adequate resources available to him for his ongoing treatment and support, and this too will be reinforced by conditions of his licence.

I am satisfied that the applicant is likely to comply with the conditions of his licence, but the conditions will be such that if there is either non-compliance or behaviour which suggests the likelihood of non-compliance, the release on licence can be revoked pending further inquiry by this Court.

The final matter to which I must have regard is the interests of the applicant's mother, both as victim and next of kin. I am satisfied that her interests will not be prejudiced by the release on licence, and an important factor is that she herself encourages it.

There are no other relevant matters to which I consider I must have regard.

I am required to make a determination that is least restrictive of the applicant's freedom and personal autonomy as is consistent with the safety of the community. Having taken all the relevant matters into account I am satisfied that the applicant's release on licence meets that criterion, provided that he remains subject to reasonably close direction by the hospital staff and is, at least for the foreseeable future, confined to the premises of the hospital. Should there be a breach of the conditions of the licence or if the applicant's behaviour pattern changes to raise concern that there may be such a breach, then I intend that, in the interests of public safety, there should be an ability to return him to James Nash House, albeit for a limited period to enable a further application to be made to the Court either to revoke the licence or to vary the conditions.

I was told at the most recent hearing that appropriate short term accommodation was then available in Kurrajong Ward. I would therefore expect the order to take effect almost immediately, but I realise that situations can change, and I propose to make the implementation of the release conditional upon Dr Hustig certifying that a bed is available.

The period of the applicant's confinement to the closed ward will be determined by Dr Hustig in the light of the applicant's progress, but it will be for a minimum of two weeks.

I intend that thereafter the Director will be able to determine the ward or wards in which the applicant will be housed, including Kurrajong Ward if necessary, and that the Director may determine other conditions, such as conditions of leave within the hospital grounds, provided that they are not inconsistent with this order.

As this order will eventually allow the applicant to be released to an open ward, it will now be a condition of his release that, save for the purposes of medical or dental treatment, he will not be allowed to leave the grounds of Glenside Hospital.

The other conditions reflect what was previously proposed or is necessary to reflect the integrity of s293a. I do not impose a condition specifying any particular medication, as I believe some flexibility in this regard is needed. He will be required, however, to take such medication as the Director or his nominee determines from time to time.

I consider it is necessary to allow the Director to return the applicant to James Nash House in an emergency, but as such return would negate the effect of this order, it should only be for a short time pending application being made for variation or revocation of this order if that is considered necessary.

The order that I propose to make is annexed to these reasons.

ANNEXURE

ORDER FOR DISCHARGE OF DETENTION ORDER AND RELEASE ON LICENCE

WHEREAS on the 18th day of October 1994, in the Supreme Court of South Australia sitting at Adelaide, KERRICK JOHN BARRIE ("the applicant") was found not guilty of one count of Wounding with Intent to do Grievous Bodily Harm by reason of insanity, and the Honourable Justice Duggan ordered pursuant to s292(2) of the Criminal Law Consolidation Act, 1935 ("the Act") that the applicant be detained in James Nash House until further order of the Court ("the detention order");

AND WHEREAS on the 14th day of October 1996, the applicant applied pursuant to Section 293a of the Act for release on licence;

AND WHEREAS on the 21st day of July 1997 I did order that subject to certain conditions being fulfilled, which conditions have not yet been fulfilled, the applicant be released on licence ("the first release order");

NOW I, David John Bleby, a Justice of the Supreme Court, pursuant to Section 293a of the Act, DO ORDER:

(1) That the first release order be revoked.

(2) That subject to condition (i) in paragraph (3) of this Order being fulfilled, the detention order be discharged.

(3) That the applicant be released on licence pursuant to section 293a of the Act on the following conditions:-

(i) That the release on licence be subject to the Director of Extended Care at Glenside Hospital ("the Director") certifying in writing to the Director of James Nash House that a suitable closed ward placement is available to the applicant at the Glenside Hospital.

(ii) That the applicant reside in a closed ward facility at the Glenside Hospital for a period determined by the Director, which period shall be not less than two weeks, and subject to such conditions, not inconsistent with this order, as may be determined by the Director or a consultant psychiatrist nominated by him.

(iii) That thereafter the applicant reside in such ward and subject to such conditions, not inconsistent with this order, as may be directed from time to time by the Director or a consultant psychiatrist nominated by him.

(iv) That the applicant not leave the grounds of Glenside Hospital other than for a purpose directly relevant to his medical or dental treatment, and then only if he is accompanied by a member or members of the staff of Glenside Hospital nominated by the Director.

(v) That the applicant be under the care of the Director of Extended Care or a consultant psychiatrist nominated by him and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication and further that he be psychiatrically reviewed on a regular basis as directed by the Director or a consultant psychiatrist nominated by him.

(vi) That the applicant continue to receive his medication current at the date of his release on licence as required by his consultant psychiatrist and further that any alteration or reduction in such medication not occur without the approval of the Director or of a consultant psychiatrist nominated by him.

(vii) That the applicant complies in every respect with the treatment plan prepared and in force from time to time pursuant to section 293a(2) of the Act.

(viii) That the applicant not consume alcohol.

(ix) That the applicant not use, possess or administer any narcotic or psychotropic drug or any drug other than tobacco and other than those referred to in or required by paragraphs (v), (vi) and (vii), and which is not medically prescribed for his use by a legally qualified medical practitioner, and then only at prescribed or recommended dosages.

(x) That the applicant be of good behaviour.

(4) That the applicant shall be returned to James Nash House at the discretion of the Director or his nominee if:

(a) The applicant, to the satisfaction of the Director, shall have breached any condition or conditions of this Order; or

(b) The Director is concerned that an action or pattern of behaviour is likely to lead to a breach of any such condition and that in the opinion of the Director the appellant is in need of a level of security that cannot be provided at the Glenside Hospital,

Provided that:

(c) Such return shall be for a period of not more than 7 days without further order of this Court;

(d) The Director shall notify the Registrar of this Court and the Attorney-General forthwith upon the return of the applicant to James Nash House pursuant to this paragraph.

(5) The applicant and the Attorney-General (on behalf of the Crown) shall be at liberty to apply.