R v Tzeegankoff No. Sccrm-96-395 Judgment No. S6639

[1998] SASC 6639

R  v  TZEEGANKOFF

Criminal

Bleby J

On 17 March 1994 David Tzeegankoff (“the applicant”) was found by a jury to be not guilty, by reason of insanity, of murdering Nandadevi Chandraratnam.  She was more commonly known, and I will refer to her as, Dr Chandra.  The brief circumstances were that on 3 December 1992 Dr Chandra was a psychiatric medical officer employed by and attached to Hillcrest Hospital.  The applicant had been attending the hospital as an out-patient.  Dr Chandra was his treating physician.  On the day in question, at the hospital, the applicant killed Dr Chandra by stabbing her with a knife and battering her with a pair of pliers.  The evidence, apparently accepted by the jury, was that the attack was precipitated by a deterioration in the applicant’s condition of paranoid chronic schizophrenia, involving, at the time, some aggressive and delusional thinking about Dr Chandra in the context of the medication she had prescribed and of other medication which she had not prescribed.  The evidence showed that he was conscious of the fact that he was killing Dr Chandra.  Indeed he went to the hospital on that day with that intention.  The jury verdict reflects acceptance of the evidence that he did not know that what he was doing was wrong.

The applicant has an established history of chronic schizophrenia dating back to at least 1989. As a result of the verdict 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, through his solicitor, 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 Section 293a was repealed by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995, but it continues to apply to this application because the trial commenced before 2 March 1996, the date after which some substituted provisions took effect.

For reasons which will become apparent, this is an unusual application.  As finally formulated, the applicant only sought release from James Nash House to Glenside Hospital, a less secure psychiatric institution, on one day per week, returning on that day to James Nash House.

Before ordering any release of a person on licence under the provisions of s293a of the Act, the court must first have obtained and considered the report of at least three 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). In fulfilment of that requirement I had before me reports of Dr K P O’Brien dated 16 February 1995, 11 June 1996, 21 August 1997 and 3 April 1998. Dr O’Brien also gave oral evidence before me. He is the Director of Forensic Mental Health Services in South Australia and Director of James Nash House. I also had before me reports of Dr Craig Raeside dated 3 January 1997 and 6 April 1998. He works as a full-time consultant psychiatrist at James Nash House and he also gave oral evidence before me. Both these doctors had been involved in the treatment of the applicant.

Although he did not give oral evidence before me, I also had a report of Dr W E Lucas dated 27 June 1997.  Dr Lucas is a consultant psychiatrist who also gave evidence at the trial of the applicant.  Although I did not have a written report from him, Dr H H Hustig gave oral evidence at the hearing before me.  He is a psychiatrist and the Director of Statewide Services and also Director of Extended Care Services of the Glenside Campus of the Royal Adelaide Hospital.  The Glenside Campus provides for long-term rehabilitation of psychiatric patients and, where appropriate, their return to the community.  It is to that institution that the applicant seeks to be released on licence of this Court, initially for one day a week.

Because of the relevance of their interests under s293a(14) of the Act I also had before me a Victim and Next‑of‑kin Counselling Report provided by Mr A O Barratt, Senior Social Worker for the Forensic and Mental Health Services at James Nash House. That report included a summary of interviews with some fifteen former members of staff of the Hillcrest Hospital, a sister and brother of the applicant, his parents having declined to be interviewed, the estranged former husband of Dr Chandra, and Dr Chandra’s son. The Act, for certain limited purposes which I will describe, makes relevant the views of the applicant’s next‑of‑kin and the victims of the alleged offence. For the purposes of the section a “victim” is defined as meaning “a person who suffered mental or physical injury or nervous shock as a result of the offence”. Not all of those interviewed could be said to come within the definition of “victim”. Some obviously did. I will make further reference in due course to the use that can be made of those summaries of interview.

The matters which I am required to take into account are set out in subss(13) and (14) of 293a.  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.”

I shall return to the matters required to be examined under subs(14), but it is to be noted that my primary concern is to make a determination that is the least restrictive of applicant’s freedom and personal autonomy and as is consistent with the safety of the community.  To that end I am to have regard to the matters referred to in paragraph (b) of subs(13).  The matters enumerated in that paragraph do not include the views or interests of the next of kin or victims of the offence.  The fact that such matters are specifically referred to in subs(14) in relation to the fixing or varying of conditions of a licence, suggests that such interests have little, if any, bearing on the decision to release.  The Victim and Next-of-kin Counselling Report would appear not to be directly relevant to the question of the applicant’s release.  However, because of the peculiarities of this case it does become indirectly relevant to a consideration of matters under sub-paragraph (iii).  It will of course be relevant, insofar as it does represent the interests of victims and next‑of‑kin, to the fixing of conditions of the licence, should the applicant be released:  subs(14).

I turn first to the evidence of the four doctors before me.  It seems common ground that although the applicant had an established history of chronic schizophrenia, since at least 1989, he had been subject to psychiatric review since possibly 1985.  Between the date of death of Dr Chandra and the applicant’s trial he spent most of his time in Correctional Services institutions, apart from three periods of between one and three weeks in James Nash House.  Since his acquittal he has been detained in James Nash House.

Dr O’Brien reported in February 1995 that the applicant’s mental state had been very stable and that he had not shown any evidence of any active psychosis for many months.  For some time now he has been housed within the Clare Unit which is self-contained and has a minimum degree of supervision.  That unit is designed for those patients who are trusted and whose mental state is stable.  In Dr O’Brien’s view he has not been a management problem and has been exemplary in his behaviour.  His mental state has become quite settled, and there are no obvious features of active psychosis or of any active illness.  Dr O’Brien considered that there had been a decline in his mental state around the time that he was acquitted, but that was for a brief period.  From other reports it appears that that may well have been associated with a change in his medication.  Nevertheless Dr O’Brien considered that he had maintained stability in his mental state for some three and a half to four years.  In his written report Dr O’Brien acknowledged a tendency on the part of the applicant to be sometimes rather “defensive/secretive”, and he acknowledged that that could give the impression to some that he might be withholding information about himself and particularly the workings of his “inner mind”.  In his report Dr O’Brien expressed no opinion about that view.  In his oral evidence he acknowledged that he had a history of being defensive, but that the applicant was less secretive now.  He said that he was less concerned about that question now than he might have been in 1997 when he wrote the report.  Whilst he acknowledged in oral evidence a history of the applicant’s mental health having deteriorated on medication - indeed that was the case at the time of Dr Chandra’s death - Dr O’Brien was more confident of his present condition as his present medication was not available at the time of Dr Chandra’s death.  Dr O’Brien did not consider him to be a danger to any other person or to persons generally.  He considered that the applicant would be likely to comply with any necessary condition that the court might impose.

Dr Raeside, in his reports, referred to the past history of chronic paranoid schizophrenia, anti-social personality traits and past drug and alcohol abuse.  He too considered that the applicant had been stable for a number of years and had demonstrated some insight and remorse as a result of what had happened to Dr Chandra.  He confirmed that there was no evidence of any psychiatric symptoms, and that the applicant had a good insight into the nature of his illness and the need for ongoing psychiatric treatment.  As with Dr Lucas, Dr Raeside expressed the view that were it not for the order as a result of the jury verdict, and based on his current behaviour, he would not be in a psychiatric hospital.  Dr Raeside considered that the applicant was ready to transfer to Glenside Hospital for further treatment and observation, provided that he was housed in a ward where there was a degree of freedom at least comparable with that which he was currently enjoying in Clare Ward at James Nash House.  Dr Raeside expressed those views in January 1997.  In April 1998 there had been no change in his views.  If anything, he said, the circumstances were now more favourable.

Dr Raeside confirmed, in his oral evidence, that the applicant’s chronic schizophrenia was well-managed and treated, and that his condition remained stable.  He too considered that he was not a danger to any other person or persons if released and that he was likely to comply with any conditions which the court might impose.  In oral evidence Dr Raeside also confirmed that in the past the applicant had been defensive and guarded, during the early stages of his treatment prior to and at about the time of his trial.  That defensiveness was a sign of his illness at the time.  However, there had been no signs of that within the last three years.  He was cross-examined, as Dr O’Brien had been, over the applicant’s use of sunglasses at locations or in conditions where they were not needed, as a possible indication of a deterioration in his condition.  Dr Raeside was well aware of that practice and of the fact that he had been wearing sunglasses at the time of Dr Chandra’s death.  Dr Raeside was nevertheless satisfied that, at least under present conditions, suitable observation and inquiry does not reveal any deterioration when that occurs.  He also acknowledged a past history of the applicant becoming psychotic whilst on medication, including at the time of Dr Chandra’s death.  However, he considered that that may have been due at least in part to problems of non-compliance.  Under the present regime and appropriate supervision at Glenside he did not consider that there was any serious risk of that recurring.  Whilst there had been some display of anger by the applicant since his trial, that was only in the early period after admission.  It had not been so in the last few years.  He considered that there had been no expressions of anger or ill feeling towards others involved in his arrest or detention, and that there was not likely to be any feeling of retribution on his part if released.  I think it is fair to say that Dr Raeside considered that the current stability in the appellant’s condition was enhanced by the fact that he has in recent years not had access to illicit drugs and alcohol, consumption of which had previously aggravated his condition.  He warned that if abuse of such substances began again there could be a high risk of deterioration.

Although Dr Hustig had not had any on-going treatment or contact with the applicant, he had supervised his management shortly after the death of Dr Chandra and had reviewed his records.  He too agreed that there were no active symptoms of the applicant’s schizophrenia and that his condition was stable.  Dr Hustig also expressed the opinion that if release were granted he would not be a danger to any other person or to people generally, and would be likely to comply with any conditions which the court would be likely to impose.  In his view, a view shared by Dr Raeside and Dr Lucas, there was no clinical reason why a complete transfer to Glenside should not now be made.

Dr Hustig envisaged that if an order were made, even initially as to one day a week, he would envisage the applicant being placed in a closed environment at Glenside and then, as he integrates with other people in that environment, and the staff become more familiar with him, he would be allowed an opportunity to view and then possibly engage with some of the groups in North Glen Ward, which is an open ward, where his progress would then be observed.  He described the main focus of North Glen Ward as being for moderate length rehabilitation - three months to one year, where the focus is mostly on social reintegration.  It is a ward in which other persons found not guilty of murder on the ground of insanity have been appropriately housed during the course of their release on licence.  Dr Hustig envisaged initially a series of escorted leave around the grounds followed by additional supervision whilst in North Glen by way of what he described as “nurse specials” - complete monitoring of the patient’s movements - followed by hourly or half hourly signing‑in with less constant supervision.  That progression would be subject to his satisfactory performance at the preceding stage.

Dr Hustig explained the system available for random testing for drugs and alcohol within Glenside Hospital.  I am satisfied that there are adequate facilities that exist to enable such tests to be undertaken if that is made a condition of his release.

Although Dr Lucas now lives interstate and was not called, I nevertheless found his written report to be helpful.  He had not taken part in the applicant’s day to day management, but had investigated his condition in great detail prior to the time of the trial, had perused many documents relating to the death of Dr Chandra as well as the applicant’s psychiatric records, both in the Queen Elizabeth Hospital, where he attended from time to time before December 1992, and Hillcrest Hospital.  He had interviewed him again in 1997 for the purpose of his report.  Dr Lucas described the applicant as being “probably as well now as he has been for many years”, and that but for the order of the court he would now be being treated as an out-patient.  Nevertheless, his treatment and mental state would require careful and on-going monitoring.  He also sounded a warning about any significant changes in medication by his treating psychiatrist without consultation with senior and experienced colleagues.

In the light of that review of the evidence I turn to the matters to which I am to have regard under s293a(13) of the Act. The applicant is aged 36. In relation to paragraph (b)(i) of subs(13), as I have already observed, he has a substantial history of chronic paranoid schizophrenia which has in the past has been marked by delusions, thought disorders, auditory hallucinations, irritability and aggression. In the past this has been aggravated by substance abuse. It was because of the effects of this condition that he was found not guilty by reason of insanity of murdering Dr Chandra. All four doctors who have seen or treated him since he was first taken into custody are unanimous in their view that his treatment has shown significant improvement in his condition to the point where over the last three to four years it has become stable, and there has been no evidence of any psychotic symptoms in that time. Therefore, whilst I have regard to the fact that the applicant suffers from a mental illness, it is a condition which, with appropriate medication, supervision and absence of alcohol and drugs, is now controlled and stable, and he exhibits no psychotic symptoms.

I find, in relation to paragraph (b)(ii) of subs(13), that the unanimous view of all three doctors that gave oral evidence is that if he is released he is unlikely to constitute a danger to any other identified person or to other persons generally.  There is no reason to doubt that evidence, and I find accordingly.  This finding is subject to the proviso that he remains subject to appropriate medication and does not take alcohol or non-prescribed drugs.  Should circumstances change during the period of release and it becomes apparent to those responsible for the management of the applicant’s psychiatric condition that he may become a danger to others, then the conditions I intend to impose will ensure that swift remedial action can be taken pending further resort, if necessary, to this Court (see para 3 of the Order annexed).

In relation to sub-paragraph(iv) of paragraph (b), those advising the applicant have given careful consideration to appropriate conditions.  Each of the doctors who gave evidence agreed that the type of conditions suggested were appropriate, although they were subject to suggested modification during the course of evidence.  I will deal in more detail below with the actual conditions which I intend to impose.  It is sufficient for present purposes that I am satisfied on the evidence before me that the applicant is likely to comply with those conditions.  Before making the order I intend, however, to inquire personally of the applicant whether he understands the conditions and whether he accepts them.  If, having understood and accepted the conditions the applicant should then be in breach of any of them, the conditions themselves will enable quick remedial action to be taken pending any further resort to the court.

Subject to one other matter to which I am about to refer, and subject to consideration of the appropriate conditions, in respect of which I must also have regard to the interests of the applicant’s next-of-kin and of the victims, there are no other matters which appear to be relevant to the question of whether or not the applicant should be released on licence, and to which I should have regard under para (b)(ix) of subs(13).

The last matter to which I have regard is whether there would be adequate resources available to the applicant for his treatment and support( para (b)(iii)).  But for the unusual features of the case to which I am about to refer, I would have no hesitation in finding that there were such resources available.  The treatment proposed is for a gradual, social reintegration with diminishing supervision.  The evidence shows that there are adequate facilities at Glenside to achieve that, together with facilities for the continued supervision and management of his psychiatric illness so that he remains in a stable condition.  There are also adequate facilities for monitoring observance of any conditions which may be imposed.  The evidence shows that under normal circumstances he could now be safely released to remain full-time at Glenside, subject to appropriate conditions.

The unique but tragic features of this case are that Dr Chandra, at the time of her death, was the applicant’s treating doctor; that she was well‑known, well‑respected and much‑loved within the South Australian Mental Health Service; that many of Dr Chandra’s close professional colleagues and associates remain as employees of the Service, a significant number now being employed at Glenside; that many of the staff who will be required to care for and supervise the applicant during his release had their only experience of him and of his illness during the period before the death of Dr Chandra and between that time and his trial - at a time when he was unstable and at times quite psychotic; that many of the staff who will encounter the applicant upon his release were deeply shocked and traumatised by Dr Chandra’s violent death; that some of them took part in the applicant’s subsequent apprehension; and that many of them associate some of his present personal traits and habits with his past psychotic behaviour, although, on the evidence before me, they are not present indicators of any instability.

Dr Chandra’s death has, I apprehend, caused concern amongst some that the applicant’s condition, although under treatment in the mental health service, was allowed to deteriorate to its tragic climax; that his medication should not have been reduced, and that he should have been admitted as an in‑patient when he sought admission one month before.  Others have questioned the true extent of the applicant’s mental illness at the time, thereby calling into question the jury verdict.  Still others have expressed the view either that he should never be released from secure custody or that it is much too soon.

Some of the reports of interviews with staff reflect genuine grief, shock and substantial personal stress at the time of and since Dr Chandra’s death.  They also reflect, in some of those people, great personal difficulty in accepting the applicant’s release and the prospect of having to deal with him personally.  Those are deeply felt, genuine and not unnatural emotions.  Other reports reflect anger at what happened, fear of further violence from the applicant if he were released, a desire for further retribution and a lack of confidence in the finding of insanity.

Some of the emotions I have described in the preceding paragraph are understandable and must be respected.  Others have no justifiable foundation, and appear to be based, to some extent, on ignorance and prejudice.  But whatever the foundation, they are real, and they present a significant management problem when it comes to the supervision and treatment of the applicant in a less secure institution.

This has an obvious effect on considerations arising under subs(13)(b)(iii) as to whether there would be adequate resources available to the applicant in the community for his treatment and support. For these purposes, “the community” means any part of the community to which the applicant may be released on licence from the secure institution in which he is presently detained pursuant to s293a(1) of the Act. It includes Glenside Hospital.

There has been no suggestion of any blanket refusal to treat or supervise the applicant.  It would reflect very poorly on the staff and would be verging on unprofessional conduct on their part if there were.  Not everyone who will need to have contact with the applicant had the acute personal involvement in the circumstances of Dr Chandra’s death, although the circumstances are no doubt common knowledge among most of the staff, and will give rise to some degree of apprehension on the part of staff who could not be regarded as victims.  The selection and counselling of staff who are likely to become involved with the applicant will require sensitivity and care on the part of the hospital’s management.  I have no reason to believe that that responsibility cannot and will not be discharged by the management of Glenside Hospital.

For those who have understandable and well‑founded apprehensions, it will require a high degree of professional integrity and goodwill in order to ensure that the discharge of their professional responsibility to patients is not compromised by their own personal feelings.  There is nothing to suggest that the staff of Glenside are not of that professional calibre, or that they cannot overcome any such emotional conflict with appropriate counselling.

For those whose fears and emotions are based on lack of understanding, prejudice or retribution, they need to understand certain fundamental facts which undergird the system of detention and release applicable to the applicant.

It needs to be understood that he has not been found guilty of any crime in respect of Dr Chandra’s death.  The jury’s verdict, based on the evidence that was presented and fully tested at the trial, amounted to a finding that the applicant was not capable of committing a crime by virtue of his disease of the mind.  That finding must be respected in the mental health community, in the same way as the integrity of the jury system is respected generally throughout the community.

It follows that there has never been and cannot be any suggestion of punishment being due to the applicant, or any suggestion that he must remain in secure custody for that reason.  The only justification for a person being detained after a finding of not guilty on the ground of insanity is for the protection of himself and of the community - to ensure that the disease of the mind from which he suffers cannot adversely affect others.

Like most diseases, this one can respond to treatment.  In the case of the applicant it has done so.  The unanimous view of those who have given evidence is that the applicant is now not a danger to any particular individual or to members of the community generally.  That must include those involved in his treatment and those who may have been associated with him in the past.  That finding, which is now one made by this Court, should also be respected.

It must also be clearly understood that a person who has been subject to a detention order under the Criminal Law Consolidation Act is entitled to apply for and to be granted release by the court after rigorous inquiry, and is entitled to enjoy a regime that is the least restrictive of his freedom and personal autonomy as is consistent with the safety of the community.  That relaxation is not dependent upon his having served an appropriate period of “punishment”.  That is just not a relevant consideration.

It seems to me that, to the extent that some of these matters might not be fully understood by some members of the staff, particularly some of those interviewed by Mr Barratt, they are capable of explanation and of being understood.  Provided that both management and staff realise this and take appropriate action to dispel any misunderstandings then I see no reason why adequate resources for the applicant’s treatment and support should not be available within the Glenside community.

This might present a practical difficulty if, as is usually the case with such persons, the applicant were released for full‑time residence in Glenside forthwith.  Those advising the applicant and, I infer, the applicant himself, have wisely recognised the problems to which I have referred, and have therefore sought release initially for only one day per week, with the applicant returning to James Nash House during the initial period of introduction.  In restricting his application in that manner, the applicant has made a substantial concession to what might otherwise be his unassailable right.  As the evidence shows, in normal circumstances he would be entitled to full‑time release to Glenside.  The only justification for that restriction is to enable a smooth transition and growth in familiarisation with and confidence in him by the staff, so that over a period of time more and more of them may become comfortable with his supervision and treatment.  I therefore find that on the conditions which are proposed, namely initial access to Glenside one day a week, adequate resources will be available for his treatment and support.

It is therefore appropriate that he should be released on licence on the terms proposed, namely initially one day per week, and subject to the other conditions to which I will later refer.

It should be realised, however, that this condition is but a pre‑cursor to what, if his state of health remains the same, will be his eventual full‑time release to Glenside Hospital.  The condition should be read in that light.

I envisage, as do his treating doctors, that whilst the applicant’s release will initially be for one day per week, it should gradually be increased in frequency to a point where the change in residence can be made.  Progress in that regard will depend on the applicant’s behaviour, cooperation of the staff and a review of his progress.

Whilst the release will be for one day per week, I propose to frame the condition in a manner which allows for increasing frequency should the directors of the respective institutions agree, thereby allowing for some flexibility.  The only justifiable reason for delaying the applicant’s full‑time transfer to Glenside is to accommodate the anticipated staffing needs, and to secure their goodwill.  It is not necessary for any clinical reason.  Indeed, full‑time release to Glenside would obviously be less restrictive of his freedom and personal autonomy, and in ordinary circumstances would be consistent with the safety of the community.  But the safety of the community also depends on suitably qualified staff being available.  So whilst any decision as to increased frequency may depend to some extent on staffing requirements, it should nevertheless be made by the directors concerned with a heavy weighting in favour of the applicant and his right to freedom and personal autonomy.  There should be no restrictions on increased frequency created by delays in or resistance to the provision of staff suitably qualified to attend to the applicant’s treatment and supervision.

As this release is the first step in an ongoing process, I intend to review progress in that regard after a period of three months from the date of this order, and to consider whether there should be any increase in frequency by direction of the Court.  That will also provide an opportunity for review of any other conditions that may be necessary.

I turn then to the conditions which I propose to order and which are set out as an annexure to these reasons.  In considering these conditions I have had regard to the interests of the victims, so far as they have been made known to me in Mr Barratt’s report.  I believe that the conditions proposed will go a long way to ameliorate their concerns.  I have also had regard to the interests of the applicant’s next‑of‑kin as they have been reported to me.  They indicate qualified support for his gradual release to the community subject to the sort of safeguards I propose to order by way of conditions.  Insofar as Dr Chandra’s next‑of‑kin may have been victims of the offence charged, their interests will not be adversely affected by the release or the conditions to be imposed. 

I have already said enough about Conditions (1) and (2).  It is necessary, in the interests of the applicant, that a daily period at Glenside be prescribed, although the actual period on any one day will no doubt depend on appropriate arrangements between the directors of the two institutions and the availability of transport.  That is the reason for condition (3).

Conditions (4) and (5) recognise that for the time being the Director of Forensic Mental Health Services will need to have overall supervision of the applicant’s treatment, although the direct supervision at Glenside Hospital will need to be in the hands of the Director of Extended Care.  Depending on progress with the frequency of visits, there may come a point at which those roles should be reversed.

Conditions (6), (7) and (8) are self‑explanatory and will ensure proper supervision during the periods of his release.  Unless the conditions are at some time in the future relaxed, the applicant will not be permitted to leave the grounds of Glenside Hospital.

Conditions (9) and (10) are not unusual, and will be essential to ensure continued supervision of the applicant’s medication, so important to his continuing stability.

A number of witnesses have recognised the aggravation of the applicant’s problems in the past by abuse of alcohol and non‑prescribed drugs.  I regard it as extremely important for the applicant’s welfare and for the safety of others that he be denied access to those substances, and that an adequate policing mechanism be put in place.  I believe that this will be adequately covered by Conditions (11), (12) and (13).  A breach of these or any other conditions will, of course, be cause for review of the release or of the conditions under which it is allowed.

Whilst there is no suggestion that, if these conditions are complied with, there is likely to be any deterioration in the applicant’s mental health, the provisions of paragraph 3 of the order are to ensure that if there are any signs of deterioration which might indicate a change in his condition for the worse, action can be taken swiftly to ensure that any possible harm to others does not eventuate.  Paragraph (c) of Clause 3 is merely intended to cover the exigencies of the appellant contracting an infectious disease or the like.  Any restriction imposed on the applicant by virtue of the exercise of the powers contained in paragraph 3 of the order will constitute a restriction on his liberty.  It is therefore important that if that occurs, it only be allowed to occur for a short time without being reviewed by this Court.  Provision is made to ensure that that occurs.

Subject to the applicant understanding and agreeing to the conditions which are proposed, an order will be made in terms of the annexure to these reasons.  Further hearing of the application will be adjourned to a date which I shall determine in consultation with counsel, but which I propose should be at the end of July 1998.

APPENDIX

SOUTH AUSTRALIA

IN THE SUPREME COURT

CRIMINAL JURISDICTION

No.   SCCRM-96-395

DAVID TZEEGANKOFF
Applicant

-V-

THE QUEEN
Respondent

ORDER FOR DISCHARGE OF DETENTION ORDER

AND RELEASE ON LICENCE

WHEREAS on the 17th day March, 1994, in the Supreme Court of South Australia sitting at Adelaide, DAVID TZEEGANKOFF (“the applicant”) was found not guilty of one count of Murder by reason of insanity, and the Honourable Justice Cox ordered pursuant to Section 292(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;

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

1......... That the detention order be discharged.

2......... That the applicant be released on licence pursuant to Section 293a(7)(a) of the Act subject to the following conditions:-

(1)...... That the applicant continue to be detained at James Nash House except on one day per week.

(2)...... That the applicant be released from James Nash House to travel to and remain at Glenside Hospital on not less than one day per week, returning that same day to James Nash House, such day or days to be decided by agreement between the Director of Forensic Mental Health Services at James Nash House or his nominee and the Director of Extended Care at Glenside Hospital or his nominee.

(3)...... That the period during which the applicant remains at Glenside Hospital shall be not less than two hours per day and shall be determined by agreement between the Director of Extended Care at Glenside Hospital and the Director of Forensic Mental Health Services or their respective nominees.

(4)...... That subject to condition (5) the applicant continue to be under the care of the Director of Forensic Mental Health Services  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 of Forensic Mental Health Services or a consultant psychiatrist nominated by him.

(5)...... That whilst at Glenside Hospital the applicant be in the care and custody  of the Director of Extended Care or a consultant psychiatrist nominated by him and that he be under the supervision of a member or members of staff of Glenside Hospital nominated by that Director and comply with their reasonable directions as to his activities and movements within Glenside Hospital.

(6)...... That whilst at Glenside Hospital the applicant remain in such ward or area as may be directed from time to time by the Director of Extended Care or a consultant psychiatrist nominated by him.

(7)...... That the applicant not leave the grounds of Glenside Hospital whilst he is under the care of the Director of Extended Care.

(8)...... That whilst travelling between James Nash House and Glenside Hospital the applicant be in the care and custody of a provider of secure transport nominated by the Director of Forensic Mental Health Services, together with a member or members  of staff of James Nash House and that he comply with their reasonable directions.

(9)...... That the applicant continue to receive his medication current at the date of his release on licence as required by his consultant psychiatrist at James Nash House and further that no alteration or reduction in such medication  occur without the approval of the Director of Forensic Mental Health Services at James Nash House or a consultant psychiatrist nominated by him.

(10).... 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.

(11)      That the applicant not consume alcohol.

(12).... That the applicant not use, possess or administer any narcotic or psychotropic drug or any drug which is not medically prescribed for his use by a legally qualified medical practitioner, and then only at prescribed or recommended dosages.

(13).... That the applicant, whenever required by the Director of Extended Care or the Director of Forensic Mental Health Services to do so shall submit himself for breath or urine analysis for the purpose of determining whether there is present in his body any alcohol or drug.

3......... That the provisions of sub‑paragraph 2(2) of this Order shall cease to take effect and the applicant need not be released from James Nash House on not less than one day per week at the discretion of either the Director of Extended Care or the Director of Forensic Mental Health Services if:

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

(b)...... Either one of them is of the opinion that an action or pattern of behaviour of the applicant may lead to a breach of any such condition and that in the opinion of such person the applicant is in need of a level of security that cannot be provided at Glenside Hospital,

(c)...... Either one of them is of the opinion that the applicant’s state of health is such that the release may cause harm to the applicant or to patients and/or staff of Glenside Hospital.

........... Provided that:

(d)...... Such cessation of day‑release shall be for a period of not more than 14 days without further order of this Court; and

(e)...... The Director shall notify the Registrar of this Court and the Attorney-General forthwith upon cessation of day‑release pursuant to this paragraph.

4......... That further reports concerning the implementation of this Order and any other relevant matters by the Director of Forensic Mental Health Services and the Director of Extended Care be lodged with this Court not later than 4.00pm on

theday of   1998.

5......... That the further hearing of this application be adjourned until      am on

theday of  1998.

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

GIVEN under my hand at Adelaide, this  day of  , 1998.

Justice Bleby, Supreme Court.

I, DAVID TZEEGANKOFF have had the conditions of my release on licence explained to me and fully understand these  conditions.

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 D. TZEEGANKOFF

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 Witnessed by
 DATE   ...........................