R v Wagner (No 2) - [2018] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WAGNER (NO 2)
[2018] SASC 109
Judgment of The Honourable Justice Hinton
3 August 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
Applications to vary the terms of a supervision order pursuant to s 269P of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
On 7 July 2011 the applicant, Ms Wagner, was found not guilty of the murder of her mother on the grounds of mental incompetence. On the same day she was declared liable to supervision and was committed to detention. By variations to her supervision order since then the applicant has been permitted to reside at Ashton House, a forensic step down rehabilitation facility.
By the present applications Ms Wagner sought variation of her supervision order to permit her to stay at her partner’s house during periods of overnight unaccompanied leave from Ashton House. She also sought an arrangement that allowed for such overnight leave to progress to the point where she could be discharged from Ashton House. Lastly she applied to reduce the frequency of testing of her urine to ensure she was not drinking alcohol or using illicit drugs.
Held, granting the applications in part:
1.       The supervision order made on 18 July 2016 is varied by deleting clauses 2, 3, 3A and 4 and substituting conditions providing for, amongst other things:
(i)      Ms Wagner’s unaccompanied overnight leave from Ashton House provided such leave does not exceed two nights per week and is for the purpose of residing at her partner's residence; and
(ii)     A reduction in screening of Ms Wagner's urine to fortnightly for the purpose of ensuring she has not taken alcohol or illicit substances.
2.       The applications are adjourned to a date to be fixed such date being no sooner than four months from the date of judgment.
3. Dr Brereton and Dr Ferris, or two such other psychiatrists as the Director of Forensic Mental Health Service directs, are to report to this Court on the success or otherwise of the applicant’s transition to unaccompanied overnight leave as provided for by the order in (1) and whether, having regard to the criteria contained in s 269T CLCA, the order should be varied to permit additional unaccompanied overnight leave.
4.       The reports prepared for the purposes of order 3 immediately above are to be provided to counsel for the victim’s next of kin.
Criminal Law Consolidation Act 1935 (SA) ss 269P and 269T, referred to.
R v Wagner [2014] SASC 70; R v Wagner [2015] SASC 65, considered.

R v WAGNER (NO 2)
[2018] SASC 109
Criminal
HINTON J.
Introduction

On 7 July 2011 Ms Wagner was found not guilty of the murder of her mother, Mrs Joyce Brown, on the grounds of mental incompetence. On the same day Ms Wagner was declared liable to supervision and was committed to detention. Nearly three years later, on 30 May 2014, that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wagner (No 2)

Details

AGLC: R v Wagner (No 2) [2018] SASC 109
Case: [2018] SASC 109
Decision Date: 3 August 2018

CaseChat Overview and Summary

In this matter, the applicant, Ms Wagner, sought a variation of her supervision order to allow her unaccompanied overnight leave from the psychiatric facility. The respondent was the Attorney-General for the State of South Australia. The case was heard in the Supreme Court of South Australia. The primary issue for the court to decide was whether it was appropriate to vary the supervision order for Ms Wagner to allow her increasing periods of unaccompanied overnight leave, ultimately leading to her full discharge. This decision was heavily influenced by expert psychiatric evidence and the statutory framework governing mentally incompetent offenders.

The court undertook a detailed analysis of the psychiatric reports provided, particularly those of Drs Brereton and Smith, who both confirmed Ms Wagner's continued stability and response to treatment. The court emphasised the statutory requirements outlined in Part 8A of the Criminal Law (Mentally Impaired Defendants) Act 1990 (SA), which necessitate considering factors such as the nature of Ms Wagner's mental impairment, the risk she poses to the public, the adequacy of community resources, and the likelihood of compliance with any conditions of release. The court also took into account the views of the victims and their next of kin, ensuring they were adequately informed and consulted.

After thorough consideration of the evidence and statutory requirements, the court found it appropriate to vary the supervision order in accordance with Dr Brereton's recommendations. This decision allowed Ms Wagner to gradually increase her periods of unaccompanied overnight leave, with the ultimate goal of her full discharge. The court concluded that given Ms Wagner's current mental state and the supportive community resources in place, her release would not pose a serious risk to public safety.

The final order of the court was to vary the supervision order for Ms Wagner to permit her increasing periods of unaccompanied overnight leave, starting from one night per week and increasing to five nights per week, with the eventual aim of her full discharge. This decision was based on the positive psychiatric evaluations and the statutory obligations under the Criminal Law (Mentally Impaired Defendants) Act 1990 (SA).

Orders

Orders of the court

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Background

Background to the litigation

It is convenient to set out the background to this matter before dealing with the applications. Background The history of this matter and the decision to release Ms Wagner on licence can be traced in the judgments of R v Wagner (SCCRM-10-332), R v Wagner [2014] SASC 70 and R v Wagner [2015] SASC 65.[1] [1] See also the order of the Honourable Justice Peek made on 18 July 2016. As at the time of killing her mother, Ms Wagner had a history of schizoaffective disorder, often with bizarre psychotic symptoms and at times depressive symptoms. Ms Wagner first had contact with mental health services in 1997 after the death of her infant son, Hayden. It was thought she was suffering from significant depressive symptoms. She had regular appointments with a psychiatrist and was prescribed anti-depressants. In 2006 she began to experience auditory hallucinations. In time those hallucinations intensified to the point where they were experienced by Ms Wagner “24 hours a day”. From 2006 to 2008 Ms Wagner was hospitalised a number of times due to her poor mental health. Eventually she was diagnosed as suffering a schizoaffective disorder. When hospitalised in 2008 it was recorded that she had not been sending her daughters to school out of a delusional fear that they were being physically and sexually abused by other children. In 2008 it was also noted that Ms Wagner’s compliance with oral medication was poor, resulting in her being started on an anti-psychotic medication injected fortnightly. In a report prepared for the trial of Ms Wagner’s mental competence to commit the murder of her mother, Dr Brereton, a forensic psychiatrist, recorded:At this time [2008] she was hearing several different voices. She identified one as Hayden her son, the other as “Hayden the devil and a third and fourth voice whom she could not identify. She experienced the auditory hallucinations in both the second person and third person (i.e talking to her and talking about her). She would often hear short commands such as, “Sit there” or “Don’t move”. She said, “They gave me no peace”. She found them extremely distracting and stopped driving for a period because she was worried about her safety in the car, especially if her daughters were in the car. Ms Wagner found it difficult to have conversations with other people because the voices would start to make comments about the other person, which made it hard to follow the conversation.Ms Wagner said the voices were distressing and virtually always said unpleasant things. Despite this, they occasionally caused her to laugh. She found sometimes she would laugh at the things she heard even if she found them unpleasant or inappropriate. I asked Ms Wagner to give me examples of the auditory hallucinations she has experienced. She complained that they would say, “Sick and evil things”. A recurring theme consisted of Ms Wagner being warned that other people were going to, “Eat me” and, “Take my internal life”. She was warned that her body parts would then be given to her mother. Sometimes the auditory hallucinations would have sexual themes and talk about people she had had sex with in the past. While she was having sex with Jason they might tell her that she was actually in bed with someone else and then, “They’d join in”.Ms Wagner remembers the voices would scream at her sometimes. On one occasion her mother prayed with her to try and get rid of the voices but the voices screamed so loud Ms Wagner insisted they stop praying. Ms Wagner recalls hitting her head to try and stop the voices and at their worst they prevented her from sleeping because she would have to get out of bed every ten minutes.Ms Wagner recalls that when the voices of ‘Hayden her son’ calmed down and stopped saying unpleasant things, then the voice of ‘Hayden the devil’ would take over. Ms Wagner told me that on one occasion when ‘Hayden the devil’ was talking to her she felt compelled to go to her neighbour’s house and tell them, “I’m the devil”. Ms Wagner said she did this despite not wanting to. She said the auditory hallucinations did not give her commands but sometimes they seemed to control what she did.

Evidence

Evidence Before The Court

As is evident from the background to the applications set out above, I have also had regard to materials referred to in the reasons of Nyland J, Kelly J and Sulan J in earlier applications to this Court. Current psychiatric evidence Under s 269T(2)(a) CLCA this Court is prohibited from significantly reducing the degree of supervision to which an applicant such as Ms Wagner is subject unless the Court has considered a report prepared by a psychiatrist or other appropriate expert who has personally examined and reported on the mental condition of the applicant and the possible effects of the proposed action on the behaviour of the applicant. The reports of Drs Brereton and Ferris were provided for this purpose. Dr Smith’s report was provided for the purposes of s 269T(2)(b) CLCA. Dr Brereton is a forensic psychiatrist with the Forensic Mental Health Service. He first assessed Ms Wagner for the purposes of the inquiry into her mental competence to commit the murder with which she was charged on 6 July 2010. Subsequently he was her treating psychiatrist between September 2011 and April 2012 and again upon her discharge to Ashton House. In his latest report Dr Brereton supports the variation of Ms Wagner’s supervision order to permit her unaccompanied overnight leave from Ashton House so that she can stay with Mr Hull with, as mentioned, the eventual aim of her discharge. He recommended that Ms Wagner commence overnight leave by initially spending one night per week at Mr Hull’s house with the frequency of overnight leave increasing at a rate of no more than one additional night per week each month until she is spending five nights a week at Mr Hull’s house. In his report he states:At this point the treating team would ensure that all the community supports were in place, i.e. Community Mental Health Team and care coordinator, outpatient psychiatric appointments with the Community Mental Health Team, regular attendance at a community Clozapine clinic, some oversight from the Forensic Community Mental Health Team, ongoing NGO support and follow-up from a local GP. In addition, the team would ensure Ms Wagner were proving able to maintain her community activities and was having no difficulties living independently with Jason. Once the team was satisfied that all supports were established in the community, we would discharge Ms Wagner to reside fulltime with Jason. As to the current state of Ms Wagner’s mental health, in the 2018 Annual Report prepared by Dr Smith, an advanced trainee forensic psychiatrist, it is stated that Ms Wagner continues to remain stable. Further, that Ms Wagner has demonstrated an extremely good response to Clozapine, and her illness remains in remission. Dr Smith refers to a second opinion provided by Dr Nambiar in October 2017 which also concluded that Ms Wagner’s mental state was stable with the absence of any residual psychotic symptoms. Dr Smith records that Ms Wagner possesses a very good level of insight into her diagnosis and understands the need for medication long-term.

Decision

Reasons for decision

HINTON J

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Ratio Decidendi

Legal Principle Established

Established by: HINTON J

In all the circumstances, it was appropriate it was submitted to vary the supervision order to allow Ms Wagner unaccompanied overnight leave increasing from one night per week to five nights per week in accordance with Dr Brereton’s recommendations.Consideration Ms Wagner was found not guilty of the murder of her mother on the grounds that she was mentally incompetent. The consequence of that conclusion is that she is not a convicted murderer and is not to be punished as a convicted murderer. In fact she is not to be punished at all. Rather the regime provided for in Part 8A of the CLCA focuses upon her detention in custody for the purposes of treatment, and, all going well, does so with a view to her being released into the community. Detention initially, but ultimately, effective treatment, is the means by which the community protects itself from any possible future risk that Ms Wagner poses. For some, particularly victims, it is difficult to accept that the mentally incompetent offender is not punished for the crime with which they were charged. And it is hard to standby silently as the mentally incompetent offender recovers their health and with it progressively their liberty without the offender, seemingly, suffering any consequence for their actions. But as a community it has been determined through the Parliament that we do not punish those whose offending is the product of mental illness. That is not to ignore the victim. The attitude of the victim to any significant variation of a suppression order must be taken into account. Section 269T(1) and (2) CLCA provide:269T—Matters to which court is to have regard(1) In deciding proceedings under this Subdivision, the court should have regard to—(a) the nature of the defendant's mental impairment; and(b)whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and(c)whether there are adequate resources available for the treatment and support of the defendant in the community; and(d)whether the defendant is likely to comply with the conditions of a licence; and(e)other matters that the court thinks relevant.(2) The court cannot release a defendant under this Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court—(a)has considered a report (an expert report) prepared by a psychiatrist or other appropriate expert who has personally examined the defendant, on—(i) the mental condition of the defendant; and(ii)the possible effects of the proposed action on the behaviour of the defendant; and(b)has considered the report most recently submitted to the court by the Minister under this Subdivision; and(ba)is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and(c)has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; and(d) is satisfied that—(i) the defendant's next of kin; and (ii) the victim (if any) of the defendant's conduct; and(iii)if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,have been given reasonable notice of the proceedings.