R v Reis

[2005] NSWSC 707

CITATION:	REGINA v Marlene Xenia REIS [2005] NSWSC 707
HEARING DATE(S):	20.6.05, 21.6.05
JUDGMENT DATE :	15 July 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Mathews AJ
DECISION:	Not guilty on the ground of mental illness.; Special orders made under s 39 of the Mental Health (Criminal Procedure) Act 1990

LEGISLATION CITED:	Mental Health (Criminal Procedure Act 1990 Mental Health Act 1990
PARTIES:	REGINA - Crown REIS, Marlene Xenia REIS - Accused
FILE NUMBER(S):	SC 7000/03
COUNSEL:	Crown: Mr P Barrett Accused: Mr P Boulten SC
SOLICITORS:	Crown - S C Kavanagh Ford Criminal Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MATHEWS AJ

15 July 2005

70003/03

REGINA v Marlene Xenia REIS

REASONS FOR VERDICT

Introduction

1 This is a special hearing pursuant to section 18 of the Mental Health (Criminal Procedure) Act 1990 (“the Act”). The accused has been charged with murder following the stabbing death of her husband on 4 September 2002.

2 On 27 June 2003, the accused was found to be unfit to be tried pursuant to section 11A of the Act. On 4 February 2004, the Mental Health Review Tribunal (“The Tribunal”) determined pursuant to section 16(1) of the Act that, on the balance of probabilities, the accused would not become fit to be tried within twelve months of 27 June 2003. On 10 March 2004, the NSW Attorney General directed that a special hearing be conducted pursuant to section 18 of the Act.

3 Before the commencement of the special hearing the Crown Prosecutor tendered an election under s 21A of the Act, signed by the accused, to have the hearing conducted by judge alone. The Crown consented to this course. Before signing the election the accused received advice from her solicitor, Ms Havryliv, in the presence of her treating psychiatrist, Dr Michael Guiffrida. Dr Guiffrida was satisfied that she understood the nature of the election and what flowed from it.

4 The special hearing commenced on 20 June 2005. Although it was not necessary for the accused to be arraigned, she asked through her counsel for this to be done. She then pleaded not guilty to the charge of murdering Michael Steven Reis. The only defence raised was that of mental illness.

5 The circumstances of the offence were in no way disputed at the hearing. It was accepted that the accused was criminally responsible for the killing of her husband. However given that this is a special hearing, it remains incumbent upon me to make a finding, beyond reasonable doubt, that the accused killed the deceased, intending at the time to kill him or inflict grievous bodily harm. Only then can the issue of mental illness arise.

6 I therefore turn to discuss the circumstances of the killing.

The killing

7 As at September 2002 the accused and her husband had been separated for about two years. He had remained in the family home at Lane Cove, while the accused rented an apartment in the city. On Tuesday 3 September 2003, the accused arranged to meet the deceased the next morning in order to collect some property from the Lane Cove house. When she left her city apartment at about 7.30am, she saw an acquaintance and they had a drink together. She drank two or three glasses of champagne. She then travelled from the city to her daughter’s school where she met the deceased. At the time she was carrying bags containing personal items which included a large ‘Oxo’ knife purchased the day before.

8 The accused got into the back seat of the deceased’s car, leaving the front passenger seat empty. She later explained this by saying that this was where she normally sat when her daughter was in the car, in order to avoid arguing with the deceased. The deceased drove towards Lane Cove. As the car approached the Gore Hill Freeway and Reserve Road, Artarmon, the accused produced the ‘Oxo’ knife from a bag. She stabbed the deceased numerous times to the left side of his upper body. He stopped the car and stumbled onto the roadway towards other motorists who had stopped on the freeway. His white shirt was covered in blood. All this was seen by a number of witnesses who said that he appeared to be injured. He was crying out “Help me, help me”.

9 The accused got out of the car and ran after the victim, carrying a knife in her hand. The deceased collapsed onto the ground. The accused ran up to him and stabbed him once more in the upper body. A truck driver who saw the attack approached the accused and asked her to drop the knife. When she did not do so, he struck her on her right hand with an iron bar, and the knife fell to the ground. She said to the truck driver, “Why did you do that? He raped my daughter”.

10 The accused was then restrained by a number of bystanders at the scene and was held until the arrival of police.

11 The deceased was taken by ambulance to the Royal North Shore Hospital. Upon arrival at the hospital doctors could find no sign of life. One of the stab wounds was found to have lacerated his heart. Life was pronounced extinct.

12 In the meantime, police arrived at the scene of the stabbing and spoke with the accused. She was arrested and cautioned. She was then taken to the Royal North Shore Hospital to receive treatment for the injury to her right hand caused by the blow from the iron bar. At the hospital a recorded interview took place. The only thing the accused said about the circumstances of the stabbing was: “We had an argument in the car, he wouldn’t let me see my daughter this weekend, and just did it.”

13 The accused was admitted to hospital where she underwent surgery for her injury. A search of the deceased’s car was conducted and a number of bags belonging to the accused were located in the back seat. Inside a David Jones bag, a receipt for the “Oxo” brand carving knife was located, indicating the knife had been purchased the previous afternoon.

14 On the afternoon of Thursday 5 September 2002, detectives conveyed the accused from hospital to Chatswood Police Station. After obtaining legal advice she declined to make any comments in relation to the matter. She was then charged with the murder of the deceased.

15 None of this evidence was challenged. In the circumstances, I have no difficulty in finding, beyond reasonable doubt, that the accused caused the death of the deceased. Given the nature of the injuries, her intention at the time can only have been to kill him or at the very least to inflict grievous bodily harm upon him.

16 The only issue remaining at this stage of the proceedings is the mental state of the accused at the time of the killing, in particular whether the defence of mental illness is made out. Under this defence it must be established that at the relevant time she was suffering from a disease of the mind which so affected her ability to reason that she did not know the nature and quality of her act; or if she did know it, she did not know that what she was doing was wrong. It is the second limb of this defence which is relevant in the present case. It is required to be affirmatively established on the balance of probabilities.

17 In order to explore this issue, I shall give a brief account of the accused’s background and then discuss the circumstances leading up to the killing.

The background of the accused

18 The accused was born in Poland on 7 December 1962. On all accounts she had a happy and uneventful childhood and a supportive and loving family.

19 The accused’s parents still live together in Poland. Her father is in his seventies and worked as a lawyer. Her mother is in her mid sixties and worked as a teacher. The accused’s thirty five year old sister also lives in Poland. The accused reports having a good relationship with all of them. There is no apparent family history of psychiatric illness.

20 The accused obtained the equivalent of the Higher School Certificate in Poland. On leaving school at eighteen she married a Polish man. He was a photographer and she trained as a photographic laboratory assistant. They moved to Australia at some stage during their marriage, although the evidence does not indicate precisely when. Once here, the accused’s husband worked as a car salesman and she worked as a photographic technician. She also did factory work, office work and some modelling. She left her husband a few years after arriving in Australia. Thereafter she worked for a short time as an escort, and also managed an escort agency.

21 The accused met the deceased in about 1989 when she was 24. They began living together when their daughter Tanya was born, and they married about a year later, on 7 December 1991. They separated about two years before the killing, when the accused was 37 and Tanya was ten.

22 When the accused and the deceased separated, she moved into an apartment in Pitt Street, city, leaving the deceased and Tanya in the family home at Lane Cove. The deceased became Tanya’s primary carer. The accused had access to her at weekends.

23 The accused’s suspicions regarding the deceased apparently began in about February 2002, after she received a telephone call about the renewal of a life insurance policy, from which the deceased would receive a large payment in the event of her accidental death. She was feeling increasingly unwell and suspected that she might have been poisoned. She attended her general practitioner and St Vincent’s Hospital on several occasions and asked to be drug tested. She became increasingly concerned that the deceased was responsible for her symptoms and that he was trying to kill her by poisoning her.

24 On 8 March 2002, the accused was admitted to Royal Prince Alfred Hospital for an overdose of sleeping tablets apparently taken in the Hilton Hotel in the city. She believed two men were following her and possibly wanting to harm her. She reported believing that her drink might have been spiked.

25 In a separate account of this incident, the accused said she became confused after drinking with a friend. She then checked into the Hilton Hotel. She remembered ringing the deceased during the evening and said that she had a vague memory of him coming to the room in the middle of the night and taking her cash and jewellery and also the key to her safe deposit box. She said that she did not recall taking any tablets and suspected the deceased had drugged her in some way and wanted to create the impression that she had attempted suicide. She said that although he was in her room during the night he did not ring the reception until the following morning, when she was taken by ambulance to the Royal Prince Alfred Hospital.

26 After this incident the accused was detained in the hospital psychiatric ward under the Mental Health Act for three days. On 11 March 2002, she was discharged without medication or follow up.

27 The accused became extremely suspicious that Tanya, who was then aged twelve, was being sexually abused by the deceased when the latter informed her that Tanya had other activities on some weekends and would not be available for the accused’s access visits. She also believed that Tanya was being poisoned, as she had become withdrawn and had developed pimples, a poor complexion and dark lines under her eyes and she appeared to be losing hair. The accused’s suspicions were further aroused when she saw what she believed to be needle marks on Tanya’s hands and arms, although Tanya assured her that they were only mosquito bites.

28 The accused said that her suspicions about the deceased were confirmed when she found pornographic videos in the possession of the deceased with Tanya as one of the actors. She also found photographs of Tanya involved in pornographic acts. However she said that these had been stolen from her. In this regard, the accused complained on a number of occasions that her Level 26 apartment had been broken into. As a result, locks to her front door were changed. Cameras were also installed outside her door; from which it became clear that there was no foundation to any of her allegations about attempted break-ins.

29 By the time of the killing, the accused was convinced that Tanya was being sexually and physically abused by the deceased and was being used for video pornography. She had reported her suspicions to the Department of Community Services and the police on a number of occasions, however no action had been taken.

30 It was with this background that the accused arranged to meet the deceased on the morning of 4 September 2002. It is difficult to know whether she intended to stab him when she made this arrangement. The fact that she was carrying a knife which she had bought the day before would tend to suggest that she did, although she has consistently denied this. According to what she said later, she and the deceased were chatting amicably until he told her that Tanya would be unable to see her the following weekend. It was at this point that she took out the knife and started stabbing him. She was unable to describe her mental processes at the time.

31 After the killing, the investigating police made numerous enquiries to ascertain whether there was any substance in the accused’s allegations about the deceased. All of them yielded negative results. The police concluded that there was no basis in reality for her assertions.

Psychiatric evidence

32 Dr Giuffrida, a forensic psychiatrist, has been treating the accused since her reception into the Mulawa Correctional Centre shortly after the killing. She has also been examined by forensic psychiatrists Dr Olaf Nielssen and Dr Bruce Westmore. All are highly qualified and experienced practitioners. All of them agree that the mental illness defence is available to the accused.

33 Dr Westmore examined the accused twice, on 18 and 30 September 2002. In his report dated 3 October 2002, he was unable to give a definitive diagnosis of her condition. However he expressed the view that the accused was mentally ill and would qualify for a mental illness defence. He went on to say that the accused’s mental illness would have prevented her from contemplating her behaviour with a moderate degree of calmness or rationality. She would have been totally deprived of her capacity to know that she ought not do the acts which led to the death of her husband.

34 Dr Westmore gave evidence for the defence at the special hearing. He repeated that the accused was suffering from a severe illness consisting either of a delusional disorder (his preferred diagnosis) or schizophrenia. As a result she was labouring under delusional beliefs in relation to the deceased which would have prevented her from understanding that her actions were morally wrong.

35 Dr Neilssen examined the accused on 31 March and 28 April 2003. He also had access to some of the documentary material in the case. In his report dated 19 June 2003, he diagnosed the accused as suffering from schizophrenia and drug abuse disorder. He expressed the following opinion:

“Although Ms Reis refused to discuss the actual offence, I believe that on the balance of probabilities she has the defence of mental illness available to her, as her actions were probably the result of her delusional beliefs regarding her husband, including the belief that he was trying to kill her and also that he had been abusing their daughter. At the time of the offences her delusional beliefs are likely to have completely deprived her of the ability to know that her actions were morally wrong.”

36 Dr. Giuffrida has been the accused’s treating psychiatrist since she went into custody shortly after the killing. On 27 February 2003 the accused was transferred from the Mulawa Correctional Centre to the Bunya Forensic Unit at Cumberland Hospital under his care. In his report of 17 June 2005 Dr. Giuffrida diagnosed the accused as suffering from a psychotic illness in the form of a delusional disorder. He continued:

“The defect of reason due to the disease of mind caused her to lose the capacity to know that what she was doing, namely the act of stabbing her husband, was wrong in so far as the particular delusional belief that he was sexually abusing their daughter so enraged her that all rational judgement left her.”

37 In evidence before me, Dr. Giuffrida again expressed the strong belief that the accused did not understand that the stabbing of her husband was morally wrong. He described what he considered to be her thinking at the time of the killing in the following terms:

“It was based first of all on the continuing and indeed complex delusional belief, which was largely of a persecutory nature, of what she believed her husband was doing in terms of poisoning her and harming her daughter.
She had, having arrived at those sort of delusional beliefs, then in some sense had acted logically insofar as she then complained to the police repeatedly, she complained to the Department of Community Services repeatedly. Police and Community Services people became involved to some extent to carry out some sort of investigation, but went away, indicating that they could find no basis for her concerns. So I think it was in the circumstances that she continued to hold these delusional beliefs and felt at the same time that she had exhausted all avenues of complaint, that perhaps her reason abandoned her completely to the extent that she believed, perhaps on the day of the offence, that she believed that she was right and proper in doing all that was left to her to prevent, most of all, her daughter being harmed.”


Verdict to be reached

38 I formally note that I have informed myself of the various matters set out in s 37 of the Act. It has made no difference to my ultimate finding, for the evidence on the subject of the accused’s mental state at the time of the killing is all one way. The accused was suffering from a mental illness which deprived her of the capacity to understand that what she was doing was wrong.

39 The verdict of the Court is that the accused is not guilty of murder on the ground of mental illness.

*****

REASONS FOR MAKING CONSEQUENTIAL ORDERS FOLLOWING VERDICT

40 HER HONOUR: I have today returned a verdict that Marlene Xenia Reis is not guilty of murdering her husband, Michael Reis, on the ground of mental illness. I have also handed down my reasons for reaching that verdict. It is now incumbent upon me to determine the orders to be made following this special verdict.

41 Until recently, the only order which the Court could make following a finding of not guilty on the ground of mental illness was that the person be detained “in such place and in such manner as the Court thinks fit until released by due process of law”. However in July 2003 s 39 of the Mental Health (Criminal Proceedings) Act (1990) (“the Act”) was amended, and the Court is now additionally empowered to “make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.” In the present case, the defence seeks that I make special orders under section 39. The Crown opposes the making of these orders. This was the only matter in dispute at the hearing.

42 In my reasons for entering a special verdict, I set out Ms. Reis’s background and described her mental state leading up to the killing of her husband. I do not propose to repeat those matters here. These reasons must be read in conjunction with those earlier reasons.

43 In discussing the orders which should be made at this stage of the proceedings, it is appropriate to start with a description of what has happened to Ms. Reis since the killing of her husband. It is a very sad story.

44 Immediately after being charged with murder, Ms Reis was taken to the Mulawa Correctional Centre, where she remained for a little over five months. On all accounts this was a very difficult time. She proceeded to incorporate the custodial staff at Mulawa into her paranoid delusional belief system. She made bizarre accusations against them. She said that: they were drugging her and physically assaulting her, including sexual assaults. She repeatedly complained of being raped. Eventually she became so agitated and distressed that on 27 February 2003 she was transferred to the Bunya Forensic Unit at Westmead Hospital pursuant to s 97 of the Mental Health Act 1990. (“the Mental Health Act”).

45 Fortunately, since her move to Bunya, Ms Reis’s delusional beliefs have not extended further. She continues to hold the same paranoid beliefs about her husband and about the staff at Mulawa, but she has had no complaints about the staff at Bunya, or at any of the other institutions she has attended since.

46 On 27 June 2003 Ms Reis was found unfit to be tried. At that time (and still now) she maintained her paranoid delusions about the deceased. She refused (and still refuses) to accept that these beliefs were not true, and that she was mentally ill at the time of the killing.

47 Since the killing, Ms Reis’s daughter Tanya has been cared for by the deceased’s sister. She has had no contact at all with her mother, and has refused to have anything to do with her. This has been a source of great distress to Ms Reis.

48 On 31 August 2003 Ms Reis made what her treating psychiatrist Dr. Giuffrida described as a “half-hearted attempt to cut herself.” She made several superficial cuts to her neck with an implement used for leatherwork which she had secreted. She was very depressed at the time. The following month she was given a course of ECT which, according to the doctor, produced some “modest and temporary remission.”

49 On 15 July 2004, during an escorted visit to the gynaecology clinic at Westmead Hospital, Ms Reis had a catastrophic fall from a balcony onto a concrete carpark, a distance of some five to six metres. The nurse who was accompanying her at the time firmly believed that it was an accident, not a suicide attempt. As a result of the fall, she sustained numerous injuries, the most serious being brain damage and a full transection of the spine at the fourth thoracic vertebra, the latter resulting in high level paraplegia. She received treatment initially at the Spinal Injuries Unit of the Prince of Wales Hospital, and later, from 1 September 2004, at the Brain Injuries Unit at the Royal Ryde Rehabilitation Centre. In October 2004 she was transferred to the Moorong Spinal Injuries Unit, also at the Royal Ryde Rehabilitation Centre. She remained there until May 2005, the month before the special hearing before me.

50 During the whole of this time Ms Reis technically remained an inpatient of the Bunya Unit. Her stays in the hospital and the rehabilitation units were all pursuant to s 110 of the Mental Health Act, which enables a forensic patient to be absent for medical treatment with the consent of the medical superintendent.

51 By March or April 2005 Ms Reis’s rehabilitation (both mental and physical) had reached the point where it was suggested that she should have supervised leave into the community to go shopping. This in fact took place, and on a number of occasions while she was at Moorong she went out into the local area on escorted shopping trips. This type of activity is considered necessary as part of her rehabilitation.

52 On 23 May 2005, precisely four weeks before the commencement of the special hearing, Ms Reis attempted suicide by stabbing herself six to seven times in the stomach. She lost a considerable amount of blood. Surgery was performed which showed that she had perforated the peritoneum, but no vital organs were affected. She had reportedly been upset since a hearing before the Tribunal three days earlier. After this episode she was returned to the Bunya Unit, where she remains today.

53 Before turning to discuss the orders sought on behalf of Ms. Reis, I should say something more about her current mental state and physical condition, as described in the evidence.

54 Physically, Ms Reis is suffering all the problems of a high level paraplegic. She will never be able to walk or use the lower part of her body. She has gained some skills in wheelchair mobility, chair transfer and self-care matters, but she still needs substantial assistance in all these areas. Every morning she has a lengthy ritual in order to ensure adequate bowel and bladder function. She suffers painful muscle cramps, particularly in the mornings.

55 From a mental point of view, Ms Reis suffers a psychotic illness which Dr. Giuffrida has diagnosed as delusional disorder. She also suffers from depression. Some psychiatrists have diagnosed her as suffering from schizophrenia, apparently because of the bizarre nature of her delusions. However Dr. Giuffrida said that she does not display the sort of cognitive, affective or behavioural deterioration which generally accompanies schizophrenia. She is “remarkably well preserved in terms of her personality in those respects”, he said in his evidence. The brain damage she suffered in the fall in July 2004 has probably resulted in some short-term memory loss, but has not otherwise affected her functioning.

56 Ms Reis has been on anti-psychotic medication since her first admission to the Bunya Unit. She started with Risperidone. However this was later changed to Clozapine, a drug which is usually reserved for treatment-resistant schizophrenia. She did not want to go onto Clozapine, and complained about its side effects. Later it became apparent that she was not complying with her medication regime, and that she was hoarding the Clozapine. Accordingly, in March this year her medication was again changed. She is now taking Risperdal Consta, which is injected every two weeks in order to ensure compliance. She is also taking medication for her depression.

57 Notwithstanding her medication, Ms Reis has continued to retain her delusional beliefs about the deceased and about the staff at Mulawa. Dr. Giuffrida says that she is now less troubled by these delusions than previously; they have become something of a “delusional memory”. The Crown Prosecutor put to the doctor in cross-examination that Ms Reis’s retention of these delusions, even after she had been taking anti-psychotic medication, might suggest that her medication was inadequate to deal with her illness. He replied that her medication has been highly successful in preventing new people and situations from being incorporated into her delusional belief system. It is a characteristic of delusional disorder, he said, that it moves with the sufferer, so that the same types of delusions will recur in different settings. This has not happened in Ms Reis’s case since she left Mulawa.

58 Delusional disorder is an enduring condition, Dr. Giuffrida said, and Ms Reis will require anti-psychotic medication for the rest of her life.

59 Ms Reis, as indicated, is also suffering from depression. She has several major ongoing stresses in her life. Principal amongst these are the murder charge and the subsequent court proceedings; the estrangement of her daughter; and the catastrophic effects of the accident in July 2004. Only the first of these is likely to be alleviated, even in the long term. It is regarded as most unlikely that Tanya, now aged 15, will seek any form of contact with her mother. Ms Reis’s physical condition is, of course, permanent, although further rehabilitation will no doubt lead to greater functional skills.

The Orders Sought by the Defence

60 Mr. Boulten SC, who appeared for the accused at the hearing, seeks that I exercise my powers under s 39 of the Act to make special orders as to her disposition and treatment. It is not suggested that she be released directly into the community, at least not in the short term, but that there be a gradual process of re-integration, under the joint supervision of Dr. Giuffrida and the her case manager, Ms. Mary Morrow, who is a clinical psychologist. The precise orders which are sought require that Ms Reis accept Dr. Giuffrida or his successor as her treating psychiatrist, and Ms. Morrow (or another person designated by Dr. Giuffrida or his successor) as her case manager. The orders require that she reside initially at the Bunya Unit, and later in such other accommodation as may be approved by her treating psychiatrist in consultation with Ms Reis and her case manager. Various other conditions are specified, including that she accept such treatment and medication as may be prescribed by her treating psychiatrist, that she be of good behaviour, and that she attend Tribunal reviews of her case. I am told that these are the standard types of conditions set by the Tribunal when it orders the conditional release of forensic patients. It should be noted, nevertheless, that I have made some alterations to the orders proposed by the defence. The substance is unchanged, but unnecessary verbiage has been removed.

61 The Crown Prosecutor has no objection to the form of the conditions, other than to suggest an additional condition if I were otherwise minded to accede to the defence submissions. His primary submission is that this is not an appropriate case for ordering the conditional release of Ms Reis under s 39. He points out in very helpful written submissions that her mental condition remains unresolved. She has no insight into her conduct in killing her husband nor into her own mental condition. She has been non-compliant with her medication regime in the past, and is likely to be again in the future. The unresolved nature of her mental condition distinguishes her from other forensic patients who have been conditionally released under s 39, according to this submission.

62 Dr. Giuffrida gave forceful evidence in support of the orders sought by the defence. He assessed the risk currently posed by Ms Reis to other people as virtually non-existent. Quite apart from the limitations of movement caused by her paraplegia, the only violence she ever perpetrated was directed against a person with whom she was in a close relationship and about whom she harboured delusional beliefs. The doctor conceded that Ms Reis is currently at “moderate” risk of self-harm However, as he pointed out, her short term disposition will be identical whatever order I should make. In either case she will return to the Bunya Unit and remain there for some time.

63 The principal reason given by Dr. Giuffrida for seeking the conditional release in Ms Reis’s case is to enable flexibility in her treatment and rehabilitation. In the absence of the orders now sought, her treating specialists would need to go through the processes set out in the Mental Health Act in order to obtain permission for Ms Reis to leave Bunya, even for a short time. These processes tend to be cumbersome and frequently involve extensive delays.

64 Dr. Giuffrida regards Ms Reis’s mental welfare and physical rehabilitation as being integrally connected. He emphasised the importance of giving her some future hope. While she was at Moorong, he said, she was allowed out on escorted shopping trips. Since she has been back at Bunya, she can only go into the grounds. Ms Reis did not want to return to Bunya. She feared the lack of privacy, particularly as she is susceptible to bowel accidents. Dr. Giuffrida also opposed her return to Bunya. He described it as an inappropriate placement for her, being a locked unit containing some very disturbed people. Given Ms Reis’s disability, he said that she is particularly vulnerable in this mixed-gender environment. However until her mental condition stabilises he said that there is no realistic placement for her.

65 Before Ms Reis’s suicide attempt in May 2005, she had been accepted for admission into the Lottie Stewart Hospital. This is a hospital for the rehabilitation of people with chronic and disabling illness. It contains a unit for the rehabilitation of spinally injured patients, and according to Dr. Giuffrida it would be a “very suitable” placement for Ms Reis. After her attempted suicide, however, it became clear that her mental condition had not stabilised, and that she was not yet ready for this environment. Nevertheless, her referral to this hospital can be reinvigorated in the future, the doctor said, when her risk of self-harm is assessed as considerably reduced. He estimated that this would probably take between six and twelve months.

66 Since she first went to Moorong, Ms Reis has had a multi-disciplinary team involved in her care. This includes experts in psychiatry, psychology, occupational therapy and nursing, as well as her case manager Ms. Morrow. Dr. Giuffrida said the accused engages well with members of this team. They will be able to continue to collaborate with the staff caring for her at the Lottie Stewart Hospital.

67 It is too early, Dr. Giuffrida said, to say with certainty where Ms Reis will go after the Lottie Stewart Hospital. However he thought the next stage would probably be a supervised hostel type accommodation, within the community, for people suffering from spinal injuries. She will require regular screening, he said, to ensure medication compliance.

68 Whether or not I make the special orders sought by the defence, Ms Reis will return immediately to Bunya and will remain under the supervision of the Tribunal. The Tribunal is bound to meet and review her case at least once every six months. It has the power to make precisely the sorts of decisions as to her disposition and treatment as the special orders envisage will be made by her treating psychiatrist and her case manager. One must therefore ask what advantage is to be achieved through making the orders sought by the defence.

69 Dr. Giuffrida has no criticism whatsoever of the Tribunal. His criticisms relate solely to the operation of the mental health system for forensic patients, particularly in the circumstances faced by Ms Reis. There are two respects, he says, in which her situation would be significantly better under the orders proposed by the defence than under the system established under the Mental Health Act. The first of these relates opportunities for her to have supervised trips away from the institution where she is confined, at present at the Bunya Unit. The second relates to her later disposition, once her mental condition has stabilised so that she can leave the secure environment of Bunya.

70 In relation to the first of these: Ms Reis, as I have said, went out quite regularly into the community when she was at Moorong, always under supervision. This was considered to be an important part of her physical rehabilitation, providing her with the skills and the confidence to resume the sorts of activities (shopping, banking etc) which most of us regard as routine. Almost certainly, in retrospect, it was in breach of the provisions of the Mental Health Act, given that she was a forensic patient at the time and was already absent from Bunya pursuant to leave granted under s 110 of that Act. Moreover, s 110 (which is the only provision of the Mental Health Act which has been referred to as relevant in this issue) permits a forensic patient to be absent from hospital only for the purpose of undergoing “medical investigation or treatment”. On the face of it, this would be unlikely to include the type of excursions undertaken by Ms Reis.

71 This is a matter of some significance in the present case, assuming (as the evidence indicates to be the case) that s 110 is the only provision which can practicably be utilised to enable Ms. Reis to be absent from Bunya. Dr Giuffrida has continually emphasised the integral links between Ms Reis’s physical rehabilitation and her mental state. On 10 February 2005, in a report to the Tribunal, the doctor commented that her spinal rehabilitation had been slow and protracted, partly because of her continued state of depression which was characterised by poor motivation and emotional fragility. Dr Giuffrida considers it most important that she should be free to take escorted trips outside the secure environment of Bunya. He regards this as a significant part of her mental and physical rehabilitation, and thinks it important that her treating practitioners should have the flexibility to arrange these excursions. If the matter is left to the Tribunal, extensive delays are likely to occur. This is because the Tribunal has no power to order the disposition of a forensic patient. It can only make recommendations to the Minister. According to Dr Giuffrida, this process can be extremely protracted. Sometimes twelve to eighteen months can elapse before the Tribunal’s recommendations are adopted, even in relation to routine and uncontroversial matters. This is clearly a matter of considerable frustration to the doctor. In the case of Ms Reis, a significant delay before being allowed out into the community would, he said, inevitably lead to “a certain despondency” in someone who is already fragile and depressed. Given that her psychological state to a great extent determines her motivation to be involved in her physical rehabilitation, Dr. Giuffrida regards it as “crucial” that she have the flexibility of movement which the special orders sought by the defence would permit.

72 As to Ms. Reis’s disposition after she is well enough to leave Bunya, Dr Giuffrida points again to the substantial delays which often occur before the Tribunal’s recommendations for conditional release can be implemented. Until Ms. Reis’s mental condition stabilises, he says, there is no realistic alternative to her remaining at Bunya, notwithstanding the highly unsatisfactory nature of this setting in her case. The inappropriateness of Bunya to her situation makes it all the more imperative, in the doctor’s view, that there be no unnecessary delays in moving her onto the next stage of her rehabilitation process when her mental condition permits it.

73 It should be noted that the Tribunal will retain its normal supervisory role in relation to Ms. Reis’s disposition if, as I propose to do, I make the orders sought by the defence. The Tribunal will be able to make its own recommendations in the event of any breach by Ms. Reis of the conditions set by the Court. There is, I acknowledge, a lacuna in the mental health legislation in that the enforcement procedures provided in s 93 of the Mental Health Act are not available in relation to breaches of conditions imposed by the Court under s 39. This is clearly a matter which needs to be addressed by the legislature. In many cases this difficulty will no doubt provide a powerful argument for the Court to decline to order the conditional release of a forensic patient under s 39. However in the extraordinary circumstances of this case, particularly relating to Ms. Reis’s paraplegia and the obvious restrictions of movement which this condition imposes, I think it is most unlikely that these procedures would be required in any event. I therefore do not propose to treat this as a significant feature in this case.

74 I accept the force of the Crown Prosecutor’s submission as to the inappropriateness, in the normal course of events, of ordering the conditional release of a forensic patient whose mental condition has not yet stabilised. In normal circumstances, the fact that a person still has a “moderate” risk of self-harm would make conditional release an unacceptable option. There are two matters which distinguish the present case. First, the special orders suggested by the defence do not in fact provide for Ms. Reis’s “release”, at least not in the short term. She will return to the Bunya Unit whether or not I make these orders. Only after her mental condition has stabilised will the question of her “release” arise. Accordingly, the orders proposed by the defence are not strictly “conditional release” orders, although they envisage her release in the future.

75 The other matter which distinguishes this case from virtually all others is Ms. Reis’s physical condition. Her paraplegia is of relatively recent origin, occurring only in July last year. Her physical rehabilitation still has a long way to go. It is inextricably linked with her mental state, and the converse is also the case. It is clear that Ms. Reis has a highly competent and committed team of professionals caring for her mental health, under the leadership of Dr Giuffrida. I should indicate, for the record, that I was extremely impressed with Dr Giuffrida, and have complete confidence in this judgment as to Ms. Reis’s future disposition. But so long as her physical rehabilitation is held back because of her status as a forensic patient, her mental condition is also likely to suffer, and the converse also applies.

76 The power to make “other orders” under s 39 is a discretionary one. In the extraordinary circumstances of this case, I consider that good grounds have been shown for making the orders sought by the defence. I also propose to make the additional order suggested by the Crown. These orders are set out in Schedule 1 to these reasons.

SCHEDULE 1

ORDERS

Pursuant to s 39 of the Mental Health (Criminal Procedure) Act (1990), I order that Marlene Xenia Reis be released from custody subject to the following conditions:

(i) She accepts as her treating psychiatrist Dr Michael Giuffrida, Director of the Bunya Unit at Cumberland Hospital, or his delegate, or Dr Giuffrida’s successor in that position;

(ii) She accepts as her case manager Ms Mary Morrow, Clinical Psychologist of the Bunya Unit at Cumberland Hospital, or such other case manager as may be determined by the Director of the Bunya Unit;

(iii) She lives in such accommodation as shall be approved from time to time by her treating psychiatrist in consultation with Ms Reis and her case manager, but initially in the Bunya Unit at Cumberland Hospital

(iv) Whilst residing in accommodation within Cumberland Hospital, or at the Lottie Stewart Hospital, she accepts and carries out all directions given by her case manager pertaining to leave of absence from that accommodation;

(v) She attends upon, or accepts home visits from her case manager in accordance with such arrangements as shall be determined by her case manager.

(vi) She attends upon her treating psychiatrist in accordance with such arrangements as shall be determined by her treating psychiatrist.

(vii) She accepts such medication as shall be prescribed by her treating psychiatrist, and shall follow all directions of her treating psychiatrist as to the administration of such medication;

(viii) If for any reason, either her case manager or her treating psychiatrist shall determine that it would be in Ms Reis’s best interests to reside for a period in a psychiatric hospital or other institution, and shall give her direction to this effect, then she shall immediately comply with any such direction;

(ix) She engage in such education, training, rehabilitation, recreational, therapeutic or other programmes as shall be directed from time to time, in consultation with her case manager.

(x) She abstain from consuming illegal drugs or mind-affecting or mood-altering drugs (other than those that have been prescribed for her by a registered practitioner’s medical prescription and taken according to the terms of such prescription)

(xi) She accepts directions and counselling from her case manager as to her consumption of alcohol, including directions to the effect that she abstain completely from the consumption of alcohol..

(xii) she submit to such tests for the detection of drugs and/or alcohol, in contravention of these conditions, as shall be required from time to time by her case manager, including random tests.

(xiii) she be of good behaviour;

(xiv) she attend the Mental Health Review Tribunal (“the Tribunal”) reviews of her case pursuant to the Mental Health Act 1990 according to arrangements as notified in advance by the Tribunal; and

(xv) she keep the Registrar of the Tribunal notified in writing of the details of her current residential address and telephone number, and that she notify the Registrar of the Tribunal immediately in writing in the event of any plans to change address, and of any change of address and telephone number.

(xvi) she submit to examination and review by such forensic psychiatrist not being involved in her care or treatment as the Tribunal may from time to time appoint, and authorise those treating her to pass on to such forensic psychiatrist such information as he or she might request from them.

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