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RDM v Director of Public Prosecutions [1999] VSCA 86 (4 June 1999)

Last Updated: 6 August 1999

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 244 of 1998

IN THE MATTER OF AN APPLICATION BY R.D.M. FOR LEAVE TO APPEAL AGAINST THE REFUSAL TO REVOKE A SUPERVISION ORDER
R.D.M.
v.	Applicant
DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent

And

THE STATE OF VICTORIA

Second Respondent

And

SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES

Third Respondent

---

JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 1999
DATE OF JUDGMENT:	4 June 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 86	1^ST Revision - 2 August 1999

---Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Application by "existing detainee" for revocation of "custodial supervision order" - Clause 4 of Schedule 3 - Whether, in the event of court refusing application, detainee has right to appeal to Court of Appeal pursuant to provisions of Part 5 of the Act. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Application by existing detainee for revocation of "custodial supervision order" pursuant to Schedule 3 - Matters appropriate to the exercise of judge's discretion discussed - Whether judge entitled to consider imposition of conditions in determining application - Whether judge in determining application had impermissibly fettered his discretion - Whether judge acted unreasonably in failing to adopt united view of psychiatric experts.---

APPEARANCES:

Counsel

Solicitors

For the Applicant

Dr. I.R.L. Freckelton

Mental Health Legal Centre

Inc.

For the Director of Public Prosecutions

For the Attorney-General representing the State of Victoria

For the Secretary to the Department of Human Services

Mr. R.A. Elston

Mr. O.P. Holdenson Q.C. and Mr. G. Mullaly

Mr. R.F. Punshon

P.C. Wood, Solicitor for Public Prosecutions

Ronald C. Beazley, State Government Solicitor

Russell Kennedy

WINNEKE, P.:

The applicant, whom I shall call R.D.M. (his identification having been suppressed by order of Gillard, J. made on 2 September 1998) seeks leave to appeal to this Court from his Honour's orders made on the above date refusing R.D.M.'s application to revoke a "custodial supervision order" deemed to exist in respect of R.D.M. by virtue of the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act"). By those orders, his Honour dismissed R.D.M.'s application for revocation of the custodial supervision order but, upon an alternative application, directed that that order be varied to a "non-custodial supervision order" which, in terms, amounts to a conditional release from custody upon terms specified by the court.
The application was heard before this Court on 13 May 1999 when a number of parties appeared through counsel. Dr. Freckelton appeared on behalf of the applicant. Mr. Holdenson appeared with Mr. Mullaly for the Attorney-General; Mr. Elston appeared for the Director of Public Prosecutions; and Mr. Punshon appeared for the Secretary to the Department of Human Services. In the event argument was addressed to the Court only by Dr. Freckelton and Mr. Holdenson. Mr. Elston sought and was granted leave to withdraw; Mr. Punshon remained throughout the hearing but advanced no argument on behalf of his client to the Court.
The Act is of recent origin, having been proclaimed in April of 1998. This is the first occasion that orders made pursuant to it have been the subject of an application to this Court. The applicant asserted that this Court had jurisdiction to entertain the application for leave to appeal by virtue of s.34 of the Act which, relevantly, provides that:

"An order confirming ... a supervision order is subject to appeal in the same manner as a supervision order."

Although infelicitously expressed, this section appears to incorporate a reference to s.26 (5) of the Act which provides that:

"A supervision order is subject to appeal by the person in respect of whom it was made ... in the same manner as a sentence."

Counsel for the Attorney-General raised the issue, although not strenuously, as to whether these provisions gave the Court power to entertain the application for leave to appeal. In the event, the Court heard argument from both parties on the "jurisdiction issue" at the same time as accepting submissions on the merits of the application. Both matters will be addressed during the course of these reasons.

The Act re-defines the procedures for dealing with persons who have committed serious criminal acts whilst under the influence of mental disability and also the procedures for dealing with persons who, because of mental disability, are unfit to plead or stand trial. These provisions which are found in Parts 2, 3 and 4 of the Act, take the place of the long standing procedures, previously contained in ss. 393 and 420 of the Crimes Act 1958, which had been part of the law in this State since the introduction of the Criminal Law and Practice Statute 1864 (ss. 358 and 364). In turn those provisions had an ancient pedigree dating back to ss. 1 and 2 of the Criminal Lunatics Act 1800 (39 and 40 Geo.3 c94). The history of the former procedure was canvassed by the Full Court in R. v. Judge Martin; ex parte Attorney-General [1973] VicRp 33; [1973] V.R. 339, particularly in the judgments of Smith, A.C.J. at pp. 342-50 and Little, J. at pp. 352-359.
It is the clear purpose of the Act to replace the former procedures with what is thought to be a more flexible and humane procedure. Accordingly s.82 (2) repeals the former ss. 393 and 420 of the Crimes Act; and s.25 abrogates the common law defence of insanity in favour of a new defence of "mental impairment" (s.20).
The second object which the Act sets out to achieve, by Parts 5, 6 and 7, is the transfer from the executive government to the courts of the responsibility for the supervision of the custody, and for the release from custody, of mentally impaired persons. Accordingly the Court no longer has the power to order that such a person be detained in strict custody until the Governor's pleasure is known (s.78).
The objects of the Act, to which I have referred, were clearly articulated by the Attorney-General when introducing the bill into Parliament (Hansard, Legislative Assembly, 18 September 1997, pp. 184-5):

"This is a bill to abolish what is known as the Governor's pleasure system and to establish new procedures to deal with persons who are presented for trial before the County Court or the Supreme Court charged with an indictable offence and who are found unfit to be tried or not guilty on the ground of mental impairment. The bill provides for the courts, rather than the executive, to be responsible for making highly sensitive release decisions. ... The current legislation governing the detention, management and release of persons found by a court to be either unfit to plead or not guilty on the ground of insanity is contained in the Crimes Act 1958, the Corrections Act 1986, the Mental Health Act 1986 and the Intellectually Disabled Persons' Services Act 1986. Such persons must be ordered by the court to be kept in strict custody until the Governor's pleasure is known. The court does not have a discretion in this respect. A Governor's pleasure order can be revoked only by the Governor of Victoria, acting on the advice of the Premier after a decision has been made by Cabinet. The initial recommendation for release comes from the Adult Parole Board, which has a duty under the Corrections Act to prepare an annual report on each Governor's pleasure detainee and to forward those reports to the Minister for Corrections, who in turn forwards them to the Attorney-General. The current system is generally recognized as antiquated and unjust for the following reasons: * it does not provide for the evidence against persons who have been found unfit to plead to be tested, but rather provides that the court must immediately order that they be detained at the Governor's pleasure; * it is inappropriate that release decisions are made by the executive and may therefore potentially be subject to political considerations. ..."

When the Act was proclaimed in April 1998, there was a significant number (we were told 40-50) of persons who were detained within the system at the Governor's pleasure. These "existing detainees" were catered for, somewhat cryptically as it now appears, by Schedule 3 to the Act, the provisions of which were given effect by Part 10 (intituled "Savings and Transitional Provisions"). The only section in that Part is s.89 which provides:

"Schedule 3 has effect."

Clause 1 of Schedule 3 defines an "existing detainee" as:

"... a person who immediately before the commencement day, was subject to an order under s.393 or s.420 of the Crimes Act 1958 (whether by the court or by the Governor)."

R.D.M. was such a person.

This application is not concerned with the scope of the new procedures provided for by Parts 2, 3 and 4 of the Act, dealing with the manner in which courts are to cope with persons who are unfit to be tried or with persons found not guilty on the grounds of mental impairment.. Rather it is concerned with the scope of the powers given to the court by Parts 5, 6 and 7 and Schedule 3 of the Act governing the management and release of mentally impaired persons who are detained within the system pursuant to "Governor's pleasure" orders, or their current alternatives. It will therefore be necessary to consider those provisions of the Act (and the appellate procedures which they provide) insofar as they bear upon the circumstances of the present applicant. Before embarking upon such a consideration, it is convenient to briefly refer to those circumstances, although it will be necessary to refer to them more fully hereafter.
The applicant, R.D.M., was born on 8 July 1956 and is now 42 years old. He has been detained at the Governor's pleasure since January 1986 following a trial in November 1985 when he was found not guilty, on the grounds of insanity, of the charge of murdering his father on 19 November 1984 at the family home in Elwood. The applicant, who had no prior criminal history, was the second of six children born of Anglo Indian parents. He was born in Madras and came to Australia with his parents in 1970 at the age of 14. He left school after form 4 and went to work at General Motors Holden. In 1977 he suffered an injury at work, developed a substantial functional overlay, and ultimately became unemployable. By 1979 it was clear that he was mentally ill and between that year and 1984 he had been admitted on a number of occasions to psychiatric institutions. On 19 November 1984 he had an argument with his father over immaterial domestic matters and caused his father's death by stabbing him. It was evident, by the time he stabbed his father, that he was a paranoid schizophrenic. At his trial he was found not guilty on the grounds of insanity and King, J. ordered that he be detained at the Governor's pleasure.
During the following 7 years he was an inmate at various institutions. In 1993 he was permitted to have overnight leave, staying with his mother, who was thoroughly supportive, at her home in St. Albans. In March 1995, under the regime which then prevailed, he was permitted continuous leave on condition that he receive treatment from the Kororoit Clinic, known now as the "Mid-West Area Mental Health Service", that he attend there as required by his doctor and case manager, that he agree to comply with medication ordered and be admitted to hospital if required. He continues to take medication to suppress symptoms of paranoid schizophrenia. He has been a model patient and, as a consequence, his symptoms have continued to be suppressed.
By the time he made his applications to the judge in August 1998, he had been detained at the Governor's pleasure for more than 12 years.
R.D.M. was, accordingly, an "existing detainee" at the time when the Act took effect on 18 April 1998. As such, he fell within the "Savings and Transitional Provisions" of Schedule 3. Clause 2 of those provisions provides that:

"each existing detainee is, on and after the commencement day, deemed to be subject to a custodial supervision order under this Act."

In order to ascertain what this means it is necessary to turn to the provisions of Part 5 of the Act. This Part deals with the "disposition of people declared to be liable to supervision" and provides for the disposition of mentally impaired people who, after the commencement of the Act, are declared by the Court to be "liable to supervision under Part 5".

Part 5 entitles the court to impose one of two types of "supervision order" upon people who are mentally impaired and declared, after trial or "special hearing", to be liable to supervision, namely: a "custodial supervision order" or a "non-custodial supervision order". By the former type of order, the Court may commit a person to custody "in an appropriate place" or "in a prison"; by the latter type of order the court may "release the person on conditions decided by the court and specified in the order" (s.26 (2)).
The scheme of Part 5 is that a supervision order, whether custodial or non-custodial, is "for an indefinite term" but that, if non-custodial, the court may direct, when making the order, that the matter be "brought back ... for review" at the end of a period specified by the court (s.27).
Whether the court makes a custodial or non-custodial supervision order, it must set a "nominal term" of supervision which is graded by reference to the maximum term of imprisonment which applies to the offence which has been committed. The "nominal term" fixed for murder is 25 years (s.28 (1)). This was the "nominal term of supervision" applicable to R.D.M. by virtue of the operation of clause 2 (2) of Schedule 3.
By s.31 of the Act the person who is subject to the order (inter alia) is entitled at any time to apply to the court:

(a) in the case of a custodial supervision order, for a variation of the order;
(b) in the case of a non-custodial supervision order, for a variation or revocation of the order.

If a person who is subject to a custodial supervision order applies for a variation of that order, the court can only confirm the order, or vary the place of custody, or vary the order to a "non-custodial supervision order" (s.32 (1)). It cannot however do the last of these (during the nominal term) unless it is "satisfied on the evidence available" that the "safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order" (s.32 (2)).
If, however, the person subject to a "custodial supervision order" is a "forensic patient" or a "forensic resident", the court cannot vary the order to a "non-custodial order" unless the person has completed a period of at least 12 months "extended leave" granted by the court under s.57.
A "forensic patient" is one who has been remanded in or committed to custody in an approved mental health service, or is a person who has been transferred from a prison to an approved mental health service under s.17 of the Mental Heath Act 1986.
A "forensic resident" is a person who has been remanded in or committed to custody in a residential service or transferred from a prison to a residential service under s.21A of the Intellectually Disabled Persons' Services Act 1986.
"Extended leave" is defined by s.56 of the Act to mean "leave for a forensic patient or forensic resident to be absent from the place of custody for a period of not less than 12 months, subject to conditions specified by the court".
Section 57 of the Act provides that the court may, upon applications made by forensic patients or residents, grant "extended leave" but must not do so unless "it is satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed leave".
It is apparent from the provisions of Part 5, to which I have adverted, that the scheme of the Act is to provide for the release of mentally impaired persons into the community in accordance with a graduated process. If such persons are subject to a "custodial supervision order" they cannot apply for revocation. The best they can achieve is a "down grading" of their status to a "non custodial supervision order" and then only (if they are "forensic patients" or "forensic residents") when they have completed a period of at least 12 months extended leave. If they are subject to a "non custodial supervision order", then they may apply for unconditional revocation.
If the court is asked to downgrade the status of a person from "custodial" to "non-custodial", it cannot do so unless it has the degree of satisfaction as to safety of the person or members of the public to which I have referred. This degree of satisfaction is not required to be applied to applications by persons seeking revocation of "non custodial supervision orders", presumably because the legislature is content to accept that the status of such an applicant does not require such a finding in specific terms.
As I have already said, R.D.M. was an "existing detainee", so defined under Schedule 3 and, as such, was deemed to be the subject of a "custodial supervision order" referred to in Part 5 of the Act. In that capacity, his "nominal term" was deemed to be 25 years commencing on the date upon which the Governor's pleasure order had been made, namely 28 November 1985. By clause 3 of Schedule 3, leave granted to him before the commencement day of the Act on 18 April 1998 was to be regarded as "extended leave" granted to him under Part 7 of the Act. However, by clause 4 of Schedule 3, R.D.M. had a right which Part 5 does not grant to those who are subject to "custodial supervision orders" imposed under that Part. Clause 4 provides:

"(1) Despite anything to the contrary in Part 5, an existing detainee who has been, or is deemed to have been, on extended leave for a period of at least 12 months may apply to the court ... for revocation of his ... supervision order. (2) On an application under sub-clause (1) the court may revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order. (3) In considering an application for revocation of a supervision order in respect of an existing detainee, the court may take into account any reports on the existing detainee made by, or submitted to, the Adult Parole Board before the commencement day."

It can at once be seen that there is a tension between the rights invested in an existing detainee under clause 4 of Schedule 3 and a person who has been placed under a custodial supervision order under Part 5 of the Act. The latter, as I have said, cannot apply for revocation of his custodial supervision order; the best that he can achieve is the "down-grading" of his status to that of a person on a "non-custodial supervision order". If he is a "forensic patient" or "forensic resident" he can only apply for down-grading if he has been on "extended leave" for more than 12 months. That leave will no doubt, as it was in this case, have been granted pursuant to the provisions of ss.51 ff. of the Mental Health Act 1986, or s.41 of the Intellectually Disabled Persons' Services Act 1986. The "tension" to which I have referred is recognized by the opening words of clause 4 (1) of Schedule 3, namely : "Despite anything to the contrary in Part 5".

The Applications before Gillard, J.

As I have indicated, the applicant qualified as a person who was entitled, under Schedule 3, to make application for revocation of the deemed "custodial supervision order" to which clause 2 of the Schedule made him subject. The entitlement arose because he was, within the meaning of clause 4 of the Schedule "an existing detainee who ... is deemed to have been on extended leave for a period of at least 12 months".
Accordingly, applications to Gillard, J. were made on 25 August 1998 to revoke the custodial supervision order pursuant to clause 4 of Schedule 3 or, alternatively, to vary the order to a non-custodial order pursuant to s.32 of the Act. There was a further application for renewal of extended leave (under s.57 of the Act) which, in the events which happened, became of no consequence.
In accordance with reasons given on 2 September 1998, his Honour "dismissed" the application for revocation but granted the application for variation of the order to a "non-custodial" supervision order, subject to conditions.
There was, before his Honour, a variety of material. It traced the progress of R.D.M. from the time when symptoms of paranoid schizophrenia first emerged in 1979 to the date of the application. The material came in the form of case summaries prepared by the Director of Public Prosecutions (which included evidence given at the trial by Dr. Barnes and Mr. Joblin as to the applicant's mental state at the time of the stabbing of his father), affidavits and declarations from R.D.M. and members of his family and extended family, a report from the Adult Parole Board of 21 August 1998 and reports from Dr. Vine (the authorized psychiatrist of the Victorian Institute of Forensic Mental Health), Dr. Illesinghe (a psychiatrist and the Director of Clinical Services at the Midwest Area Mental Health Service) and Sister Fairest, a psychiatric nurse and the applicant's case manager at the Midwest Area Mental Health Service.
His Honour heard oral evidence from Dr. Vine, Dr. Illesinghe and Sister Fairest. He also heard oral evidence from the applicant's mother, but limited to the state of her health. She was, at the time of the applications, aged 74 years.
In general terms, the evidence before his Honour demonstrated a reasonably swift reclamation of R.D.M.'s mental health from the florid symptoms manifested between 1979 and 1985, during which his behaviour had been characterized by auditory hallucinations, delusional thoughts, and consequent bouts of violence, directed in the main towards his family and motivated by paranoid tendencies. Between 1979 and 1984 the symptoms of paranoid schizophrenia had emerged and, on some 5 occasions, the applicant had been admitted to mental health institutions for management and control of his symptoms in accordance with public health measures then in existence. On each occasion, it appears that the applicant quickly responded to medication although it is apparent from his history that he succumbed to pressures that existed in the home. The evidence suggested that tension existed between his mother and father, particularly relating to the strict dietary regimes maintained by the latter on account of religious beliefs.
Ultimately the "flare-up" occurred in late 1984 when the applicant stabbed his father in the kitchen of the home where they were living. The applicant was taken into custody and, about a year after the events which led to that custody, was acquitted by the jury on the grounds of "insanity". In accordance with the procedures then in existence he was committed into strict custody in accordance with the "Governor's pleasure". Periods of custody in Pentridge, Castlemaine and the Aradale institution at Ararat followed. By 1991 the applicant had recovered his mental health to the point where he was able to be transferred from custodial institutions to the recently constructed facilities at Royal Park.
Notwithstanding that "Governor's pleasure" orders required committal to strict custody, the custody of mentally impaired prisoners was managed and controlled through the interaction of a number of statutory measures which had been introduced in 1986 (Mental Health Act 1986, Intellectually Disabled Persons' Services Act 1986 and the Corrections Act 1986). Under these measures, the State created what were called "Psychiatric In-Patient Services" and "Residential Institutions" specifically equipped and staffed for the better treatment of mentally impaired persons. The Office of Corrections, which had the primary responsibility for the control of prisoners committed to strict custody, was given the power, if the circumstances were appropriate, to arrange for the transfer of "Governor's pleasure" prisoners to a psychiatric in-patient service or a residential institution as "security patients" or "security residents", if it appeared desirable to do so in the interests of the individual prisoner. Notwithstanding such transfer, the prisoner remained in the custody of the Corrections Department and the Adult Parole Board was required annually to report to the relevant Minister upon the progress of the prisoner and to make recommendations about his future custody. Within the general control maintained by the Office of Corrections the prisoner, as a "security patient or resident", as the case may be, was within the immediate control of the Director-General of the Department of Community Services (if a "security resident") or the Chief Psychiatrist of the Health Department (if a "security patient").
Whether the prisoner was a "security resident" or a "security patient", provision was made for grants of leave to the person to be absent from the institution for such periods and upon such conditions as were seen to be desirable.
At all relevant times after 1991 the applicant was a security patient under the immediate control of the Chief Psychiatrist of the Health Department but under the general control of the Department of Corrections and, through it, the Adult Parole Board. In 1993 he was granted overnight leave to stay with his mother in St. Albans. Since March 1995, he has been on extended leave on condition that he reside with his mother, receive treatment from the "Midwest Area" Service, attend there as required by the authorized psychiatrist and comply with his medication regime. That regime has been gradually reduced from 90 mg. of Modecate to 50 mg. of Modecate administered fortnightly by injection. The fact that his medication has been administered by others intra-muscularly has given those "others" the opportunity to monitor the applicant's adherence to his treatment regime.
His Honour found that at all relevant times R.D.M. had been "a model patient" who had strictly complied with the conditions imposed upon him and that his mental instability had been well controlled by his strict adherence to his medication regime. His Honour also found that the evidence from the applicant's mother, his brothers, sisters and a friend was "all one way", namely that:

"the applicant has totally changed from the person ... observed at the time of the commission of the offence. He is now a more relaxed person with whom one can have a conversation, freely jokes, friendly and easy to talk to and very approachable. [He] spends time with his brothers and sisters and their families. All express the view that they had no difficulty in him associating with their children. There has been no evidence of violence or outbursts during the last three and one half years."

His Honour noted that Dr. Vine's view was that, "under his present regime, [the applicant] does not seriously endanger members of the public, including his immediate family nor himself". However Dr. Vine "accepted that, if he did not comply with his treatment, then he could suffer a relapse". His Honour referred to her evidence that, in such an event:

"They (the symptoms) wouldn't return immediately. It may be some considerable time, but there would be a very high risk, that is probably close to a certainty, that at some point they would return. It is for that reason that any dose reduction is done very slowly and very gradually."

His Honour also noted that Dr. Vine's opinion, which supported revocation of the custodial supervision order, was not based on any recent "close treatment contact" with the applicant but upon a consideration of the reports of others.

His Honour also noted the evidence of Dr. Illesinghe that the applicant's illness:

"had been well controlled with his treatment and he does not carry any significant risk to himself or others at present."

The evidence of Dr. Illesinghe was, as his Honour found, consistent with the general tenor of the evidence that there had been no indication of aggression or violence since he had been on extended leave and attending the "Mid-West Area" Service. This was also the clear view of Sister Fairest, who supported the revocation of the custodial supervision order.

In discussing the provisions of the Act, and their objectives, his Honour noted that the ultimate aim of the legislation was to transfer from the executive to the courts, the "highly sensitive decision" to release into the community a person who has committed a serious criminal act whilst mentally impaired resulting in a verdict of "not guilty on the ground of insanity". This function was, as his Honour said:

"not only difficult but one that carries a heavy responsibility".

His Honour was conscious of the tension between the court's power to finally release an existing detainee from the restraints of a "deemed custodial supervision order" and its power only to "conditionally release" from such an order imposed in exercise of the powers under Part 5. He was also conscious of the fact that in considering whether the "discretion to revoke" should be exercised under Schedule 3, the court was bound by the principle stated in s.39 of the Act that "restrictions on a person's freedom and personal autonomy should be kept to a minimum consistent with the safety of the community".

Nonetheless his Honour was of the view that the court's approach to the discretion invested in it to revoke a custodial order under Schedule 3 should take account of the objects of the statute, particularly the provisions of Part 5 and Part 7. Those objects, he said, are:

"to ensure that treatment and supervision are provided on a step by step basis with the aim of re-introducing the detainee into society in circumstances where he is not a danger to himself or society in general. It is important in this gradual process that the detainee demonstrate by his conduct that he can cope with each change to his situation. The most important changes are the reduction in medication discipline and supervision and change of place where he resides. A change would not be warranted unless a detainee's conduct shows he is able to cope with his then regimen and, more importantly, does not represent a danger to himself and the community ... . The overall object of the exercise is a detainee's re-integration into the community with no risk to himself or the community."

His Honour returned to this theme when discussing, specifically, the application for revocation. Having noted that R.D.M. was "subject to a disciplined regime which involves very little contact with people outside his family", his Honour said:

"Absent the medication ... there is a near certainty that he would relapse into the undesirable conduct of a paranoid schizophrenic with a risk of injury to others. Under Schedule 3, cl.4 (2), the court may revoke a supervision order if satisfied that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order. The revocation of the order would mean that the applicant would be under no supervision or control as a matter of law. Evidence was adduced to suggest that the case manager and others, including the family, would keep an eye on him to make sure he did take his medication. In my opinion it is the present supervision which ensures that he is not a danger to the public, but to remove that supervision leaves the applicant on uncharted seas and the unknown. There is no evidence as to what the position would be if one of the important controls was removed, namely the residency with his mother, the requirement to attend the clinic and the removal of the support which is given him by his family. I have carefully considered all the evidence and have taken into account the statutory requirements, in particular s.39. The thrust of the Act is clear that the removal or lessening of controls must be put to the test before one can feel confident to move to the next step. To remove all controls overnight is a risk which has not been tested and, accordingly, I am not prepared to find that the revocation of the order would not seriously endanger the applicant or members of the public. I am not persuaded that the support systems which exist in this State would necessarily be adequate to supervise the applicant if all controls were removed. Accordingly, I dismiss the application to revoke the custodial supervision order."

His Honour went on to consider the alternative application to vary the order to a "non-custodial order". His Honour granted that application because he was satisfied that, if the applicant was subject to conditions which he proposed to impose, that "in those circumstances his safety and that of members of the pubic will not be seriously endangered". The conditions which his Honour imposed were:

(i) that the applicant be under the supervision of the Authorized Psychiatrist of the Victorian Institute of Forensic Mental Health;

(ii) that the applicant continue to reside with his mother at her address or such other address as approved by the Authorized Psychiatrist;

(iii) that the applicant complies with the lawful instructions and treatment as directed by his supervisor or the Authorized Psychiatrist to the Mid-West Area Mental Health Service;

(iv) that the applicant attend psycho-social programmes as directed by his supervisor or the Authorized Psychiatrist of the Mid-West Area Mental Health Service;

(v) that the applicant abstains from the use of alcohol and from the use of illicit drugs, but the Authorized Psychiatrist of the "Mid-West Area ... Service" may give written permission to consume alcohol on particular occasions and under particular conditions;

(vi) that the applicant be permitted to leave the State of Victoria for a period specified by, and with the written permission of, the Authorized Psychiatrist of the "Mid-West Area ... Service" subject to such conditions as are imposed by the Authorized Psychiatrist.

His Honour directed, pursuant to s.27 (2) of the Act that the "non-custodial supervision order be brought back to the Court ... for review during the month of September 2001."

Application for Leave to Appeal

The applicant, by notice given to the Registrar of this Court on 6 October 1998 has applied for leave to appeal to the Court against the order of his Honour dismissing his application for revocation of his custodial supervision order. No complaint is made about the orders made by his Honour varying such order to the "non custodial" form.
Before turning to the grounds of his application, it is necessary to say something about the entitlement of the applicant to seek this Court's leave to appeal and the Court's jurisdiction to entertain the application. That is made necessary because of the preliminary submissions made by counsel for the Attorney-General disputing the applicant's entitlement and the Court's powers.
The rights to appeal and this Court's jurisdiction are to be found in and governed by the Act. The rights, insofar as are pertinent to this application, are to be found in ss. 26 and 34. Section 26 is the section which provides that the court must make a supervision order if it has declared a defendant liable to supervision. As I have already indicated a "supervision order" can either be "custodial" or "non-custodial".
I repeat that s.26 (5) provides that:

"A supervision order is subject to appeal by the person in respect of whom it is made, or the Director of Public Prosecutions, in the same manner as a sentence."

and that s.34 provides that:

"An order confirming or varying a supervision order is subject to appeal in the same manner as a supervision order."

The plain reading of s.34 suggests that a person aggrieved by a court's order "confirming or varying a supervision order" is to be entitled to appeal against that order as if it were a "sentence". Thus, insofar as an appeal against an order "confirming or varying a supervision order" is concerned, this Court is bound to treat it as if the order were made in the exercise of a sentencing discretion (cf. R. v. Tsolacos, Court of Appeal, 6 July 1995, unreported, per Winneke, P. at p.8).
Although the Act contemplates that such orders as are made under the Act will be made, inter alia, by single judges of the Supreme Court, the sole right of appeal to this Court is to be found in the Act, and not by virtue of s.17 of the Supreme Court Act 1986. Section 17 (2) of that Act provides that:

"Unless expressly provided by ... any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge."

It is, in my view, the very clear intendment of this Act to confer such rights of appeal as are given as if they are rights of appeal given against sentence by virtue of s.567 (d) of the Crimes Act 1958 and, in so doing, the legislature is "expressly providing" that no right of appeal is conferred under s.17 (1) of the Supreme Court Act (cf. Director of Public Prosecutions v. Kanfouche [1992] VicRp 9; [1992] 1 V.R. 141 at 148-50 (per Young, C.J. and Ashley, J.)).
The question then is whether a right of appeal will arise in the circumstances of this case where the trial judge has entertained alternative applications to "revoke" an existing, but deemed, "custodial supervision order" under Schedule 3 and, at the same time, an application to vary the order under s.32 and, having done so, has "dismissed" the revocation application but granted the variation application.
Mr. Holdenson submits that clause 4 of Schedule 3 does not, in terms, give a right of appeal against the court's order refusing to "revoke" and that s.34 only confers a right of appeal, so far as is relevant, against a court's order "confirming" a supervision order; and that such right can only refer to "confirmations" of custodial or non-custodial supervision orders made on applications under ss. 32 and 33 of Part 5. Furthermore, he contends, that at the end of the day his Honour has not confirmed the custodial supervision order, but has "varied" it and no appeal is brought against the order for variation.
On the other hand the applicant submits that his Honour was confronted with alternative applications made under two different provisions of the Act and, in dismissing the primary application to "revoke" the custodial supervision order, his Honour has effectively, within the meaning of s.34, "confirmed" the existing order, notwithstanding that, in considering the alternative application, he has varied that order.
Although I admit to some hesitation, I am of the opinion that the applicant's submission should be accepted. The scheme of the Act is such as to enable "existing detainees" to make concurrent applications to have revoked their deemed custodial supervision orders (clause 4 of Schedule 3) and, if that is not successful, to have those orders varied to "non-custodial" orders pursuant to s.32. In those circumstances it seems to me that, for the purposes of appeal, "a line should be drawn" between the two applications and that the alternative "application to vary" should be regarded as arising only after the "revocation" application has failed. The refusal to accede to the "revocation" application means, in effect, that the court has "confirmed" the order and it is only because it has done so that the alternative application to "vary" that order becomes a matter for the court's consideration.

The reason for the hesitation which I have expressed arises only because, as his Honour pointed out, "existing detainees" are given, in certain circumstances, a right to apply for revocation of their deemed "custodial supervision orders" whereas no such right is given to those who are subjected to custodial orders made in the exercise of the powers conferred upon the court by Part 5 of the Act. The only relevant right given to the latter persons is a right to apply for variation. Thus it might be said that, in providing the extraordinary right to "existing detainees", Parliament was not intending, in the event of a refusal to revoke under Schedule 3, to extend to those persons a right to appeal to this Court.
On reflection, I do not think it would be right to attribute such an intention to the legislature. This is remedial legislation which is clearly intended to provide flexibility in its application. Existing detainees, who can be assumed to be subject to "Governor's pleasure" orders, will be subject to a wide variety of circumstances. On behalf of the Attorney-General, Mr. Holdenson properly pointed out that there had been no intention to draw a distinction between the rights of appeal given to "existing detainees" and those who had been the subject of orders made under Part 5 and that, if the proper construction of an Act led to a conclusion that s.34 did not apply to "existing detainees", that was an "unintended lacuna".
There is no difficulty in applying the rights given by s.34 to orders made by the court in determining applications made by "existing detainees" under Schedule 3, cl.4. In other words, it does no violence to the words of s.34 which provide for an appeal against "an order confirming ... a supervision order" to apply them to orders made by the court disposing of an application made by an "existing detainee" under Schedule 3.
In my view, an order refusing to revoke a "deemed custodial supervision order" is to be equated in all respects to an order "confirming" that supervision order just as if the order had been made under s.32 or s.33.
I would, accordingly, conclude that R.D.M. does have a right to appeal to this Court under s.34 against his Honour's order "dismissing" the application for revocation under clause 4 of Schedule 3, notwithstanding that his Honour went on to favourably consider the alternative application under s.32 (2).
Notwithstanding the conclusion which I have just expressed, I must confess that I do not find it easy to equate an appeal against a judge's confirmation of a custodial supervision order with an appeal against the exercise of a judge's sentencing discretion which is the fiction the legislature asks us to assume.
The imposition by a judge of a sentence upon a prisoner is undoubtedly the exercise of a judicial discretion (House v. R.[1936] HCA 40; (1936) 55 C.L.R. 499 at 504), but it is a discretion exercised in accordance with well defined guidelines. It is therefore a discretion which usually will readily lend itself to review in conformity with the procedures provided by Part VI of the Crimes Act.
On the other hand, a decision made by a judge under Schedule 3 of the Act not to release a mentally impaired person unconditionally from supervision seems to me to be a decision made in the exercise of a discretion of a discretely different character. The function which the court is to perform is essentially an inquisitorial or administrative one in which it is not bound by defined rules or practices but may inform itself in any manner it thinks fit (s.38). The court is required by the statute, amongst other things, to balance the competing interests of the detainee and the public and, in doing so, to assess risk factors which, in turn, depend upon value judgments in respect of which reasonable minds might differ. In that sense, it seems to me to be a discretionary exercise which does not lend itself as readily to review as the exercise of a sentencing discretion. Although amendments to s.568 of the Crimes Act made by Act No.48 of 1997 now empower this Court to remit matters to the trial court, those powers as I understand them could not be exercised in this case.
This Court is, nonetheless, required to regard the judge's confirmation of the supervision order as a "sentence" and to quash his order if we think a different order should have been made. In my view, the Court should only do so if it is satisfied that his Honour has applied some fundamentally erroneous principle which can be seen to have vitiated his discretion and to have led to a manifestly unjust result.

The Grounds of the Application

The principal ground argued by Dr. Freckelton was centred on his Honour's comments, to which I have earlier referred, that:

"The thrust of the Act is clear that the removal or lessening of controls must be put to the test before one can feel confident to move to the next step. To remove all controls overnight is a risk which has not been tested and accordingly I am not prepared to find that the revocation of the order would not seriously endanger the applicant or members of the public."

The argument was that this amounted to a fundamental error of approach when considering an existing detainee's application for revocation under clause 4 (2) of Schedule 3. It amounted, it was submitted, to an unwarranted fettering of the discretion given to the court by the schedule and contemplated the imposition of a "pre-condition" which was not countenanced by the terms or the spirit of clause 4 (2).

The other grounds of appeal argued by Dr. Freckelton were, as they seemed to me, related to and extensions of his principal ground. They were as follows:

* that, in adopting the approach which he did, his Honour had misconceived and misapplied the degree of satisfaction which he was obliged to achieve as a necessary pre-condition to the exercise of the discretion to revoke an order under Schedule 3. It was submitted that his Honour had "lifted the barrier" from one of "satisfaction that revocation of the order would not seriously endanger the detainee or the public" to one of "satisfaction that the revocation would impose no risk"; (my emphasis)

* that his Honour, in failing to accept the united opinions of the qualified psychiatric experts had acted unreasonably and had substituted his unqualified opinion for their expert opinion;

* that his Honour had erred in concluding that revocation of the supervision order "would mean that the applicant would not be under any legal controls at all". It was said that his Honour had failed to recognize properly or at all that the scheme created by the Mental Health Act 1986, particularly ss.8 and 14 (1A), was adequate to provide whatever was necessary to control the applicant in the absence of court imposed conditions;

* that, in misconstruing the Act in the manner asserted, his Honour had failed to apply the "least restrictive principle" approach required by s.39.

Whilst I am indebted to Dr. Freckelton for the interesting and skilful manner in which he developed these grounds of the application, I am not myself satisfied that they demonstrate error in his Honour's approach, nor am I satisfied that the orders which he made were unsound or unjust or that this Court should quash his orders and substitute its own order unconditionally releasing the applicant from supervision.
The applicant's principal submission that the learned judge had improperly fettered the discretion which he was asked to exercise under clause 4 (2) by imposing "pre-conditions" not countenanced by the legislation seems to me to misconstrue the Act and his Honour's reasons. If it means that the court cannot, in exercising its discretion under clause 4, consider "putting the applicant to the test" of court imposed conditions as a prelude to unconditional revocation, then I do not agree. True it is that existing detainees are given a right to apply for revocation of their custodial status, in contra-distinction to those who have been placed under "custodial supervision orders" pursuant to Part 5. That, no doubt, is because the legislature has recognized that the circumstances of existing detainees, held in custody at the Governor's pleasure, will be many and varied. Some will have committed crimes less serious than others; some may have been committed into custody because they committed "crimes" whilst in the grip of a supervening mental illness which has resolved; some may be in custody because, at the time they were presented for trial, their mental condition was such that their guilt has never been determined.
However the fact that Schedule 3 gives to existing detainees a right to call upon the court to exercise a discretion to revoke their custodial orders does not mean that the exercise of that discretion is to be "quarantined" in the sense that the court is precluded from considering the overall objectives of the Act. That can scarcely have been intended when the existing detainee is specifically equated with the position of a person who is placed on a custodial supervision order under Part 5. Nor can it be seen to have been intended when the existing detainee is given a right to make, in the alternative to an application for revocation, an application to be released on conditions. It would be unthinkable, in circumstances where the court was being asked, at the instance of the existing detainee, to consider such alternative applications, if the court were to be precluded from considering which of the two alternatives was the most appropriate to meet the circumstances of the detainee.
In my opinion, there is nothing to be found in Schedule 3 which suggests that the court, in considering whether an order is to be revoked, should not have regard to the objects of the legislation and, particularly, to its object that mentally impaired persons in custody are only to be released unconditionally where the court is satisfied that that can be done without serious endangerment to the person himself or the public. It is axiomatic that a court might, in given circumstances, be more easily satisfied that no "serious danger" will exist if the detainee were to be conditionally released than if he were to be unconditionally released. For my own part, I would have thought that the discretion given to the court by clause 4 (2) is sufficiently wide to enable the court to consider the alternatives, even if no application to "vary" had been made. However, on any view, the court must be empowered to consider conditional revocation of the custodial status of the applicant where it has been specifically asked to do so. That was the approach adopted by his Honour, and in my view it was the correct approach. It is an approach which seems to me to be consistent with the "least restriction principle" enunciated in s.39. Rather than ignoring the principle, as Dr. Freckelton contended, the approach adopted by his Honour was in aid of it.
I note that the same approach was adopted by Hedigan, J. in considering an application by S.D.K. ([1998] VSC 112), the facts of which were very similar to this case. In that case his Honour was confronted by alternative applications made by an existing detainee for "revocation" or "conditional release". The applicant had been living within the community on "leave" for a substantial time and her condition was well controlled by medication. As here, the psychiatric experts expressed the opinion that revocation would not "seriously endanger" the applicant or the public. His Honour, however, considered on the evidence available to him that the appropriate order was "conditional release" and not "unconditional release". His Honour said [15]:

"I have formed the view that it is premature in this case to revoke the Governor's pleasure order as I deem the conditions which I intend to place on a non-custodial supervision order will enable some further obligatory continued supervision including, if necessary, the monitoring of the taking of medication."

Where the court is asked, upon an application under Schedule 3, clause 4 (2), to consider, as an appropriate alternative, release upon conditions, it cannot be right to contend that it is an inappropriate and legislatively uncountenanced fetter upon the court's discretion under Schedule 3 to impose conditions upon release. Indeed, where the primary object of the Act is to transfer to the court the responsibility for releasing mentally impaired people into the community, it must be, in my view, a significant factor for the court's consideration that the revocation order, if made, will extinguish all supervisory control which the legislation gives to the court. For that reason, I would have thought that the power to revoke given to the court by clause 4 (2) of Schedule 3 should, where circumstances demand it, be informed by the knowledge that the applicant has a capacity to conform to conditions which the court itself has imposed.
It was Dr. Freckelton's submission that his Honour had gone beyond what I have described to be a legitimate exercise of the court's discretion when he said that the "thrust of the Act" was that "the lessening or removal of controls must be put to the test before one can feel confident of moving to the next step"; and that "To remove all controls overnight is a risk which has not been tested ...". He said that, whatever else the Act empowered the court to do, it was not its purpose to deny revocation simply because "removal of controls" had not been put to the test. Such a requirement, he submitted, was not only contrary to the terms of clause 4 (2) but was unrealistic because it assumed a "removal of controls" which was incompatible with the applicant's illness and imposed upon him a burden with which he could not comply.
These submissions, I think, read too much into the remarks of his Honour and take them out of their proper context. Although, in one sense, the remarks were infelicitously expressed, their import seems to me to be clear. In my view his Honour's comments were confined to the circumstances of the case before him. In essence he was saying that if the court's supervisory control was to be totally and suddenly removed, he could not be satisfied on the evidence before him that there would not exist a relevant risk of serious endangerment. He was not talking about removal of controls which were necessary for the containment of the applicant's symptoms.
If his Honour's remarks are understood in the sense which I have attributed to them, I think that the evidence "available to him" justified them. That evidence indicated that the applicant's illness was a chronic one and that its symptoms were almost certain to re-emerge if not strictly controlled by medication. Although the evidence suggested that the applicant was well motivated to comply with his medication regime and was "insightful" of the consequences of not doing so, it was also open to his Honour to have regard to circumstances which might arise if, as was contemplated, the dosage was reduced or if there was a change in the manner in which medication was administered or if any changes occurred in family circumstances which were capable of producing stress.
Dr. Vine, who as his Honour noted had had very little recent contact with R.D.M., had said:

"were he to stop that treatment there would be a risk of a return to those symptoms ...".

She also said that, whilst his illness is "well controlled" there is little evidence of aggressive behaviour and further said that:

"provided there is on-going treatment and supervision of [the] illness, the risk of danger ... is .. very low." (my emphasis)

Dr. Vine also gave evidence that relapses of chronic schizophrenia can be very sudden with different sorts of treatment "or if a person were to use amphetamines or marijuana". Although she did not think it was necessary, she agreed that, if supervision was provided in a non-custodial form, that would "be an added layer of protection". Dr. Vine also told the court that treatment for schizophrenia produces side effects and that it is therefore appropriate "to cautiously reduce ... the dosage". She "imagined" that, after 12 months, the applicant's dosage would be reduced by one-half, but "that is a matter for those who are managing him".

Although she said that she did not believe it was necessary to "impose a legal imperative" to ensure compliance with medication, she believed that, if there were a re-emergence of symptoms, the provisions of the Mental Health Act would be invoked. When asked what would happen if the applicant decided to remove himself from his current circumstances and go and live in the country, for example Mildura, she responded:

"I think his treatment team would ring up the hospital in Mildura and would arrange an appointment for him ... . If he refused to go, then I think they would still communicate with staff at Mildura so that they were aware of [him] ... . No one would have any power to [compel] him whilst he was well. Certainly it would only be if he became unwell and was refusing his treatment that anyone would have that power."

She further said that, in the case of a person with R.D.M.'s history, he would be "treated more cautiously so that ... were there to be an emergence of symptoms, and assuming the psychiatrist has informed himself ... of his past, then I think that interest would be a very low threshold for invoking the Mental Health Act ... and for ... re-institution of treatment." (my emphasis) She added: "that is of course my ... opinion. I don't speak for everyone, I guess".

Dr. Illesinghe said that his contact with the applicant was "rather intermittent", about "every six months or a year". However he said that doctors under his control saw the applicant "usually every four to six weeks". He said that there had been no evidence of behavioural disturbance over the 3 years of his supervision, but that, in order to reduce side effects, it might be "desirable to change him onto a different medication" which he said would comprise tablets rather than injections. However, he expressed the opinion that the applicant would not, if the order was revoked, put himself or the public at risk and that he had a good insight into his illness. He also said that if there was, for any reason, a lapse in the taking of medication there "could be a recurrence in the symptoms of schizophrenia".
This evidence, in my view, entitled the judge to come to the conclusion, which he did, that if there was a sudden and total removal of all court supervision (which, in my view, were the "controls" of which his Honour was speaking) he could not be satisfied that a significant risk of serious endangerment to the applicant or members of the public would not arise. The risk of "serious endangerment", which he found would exist if all controls were removed, arose from the fact that the applicant's illness was a chronic one, from the fact that reductions in medication were being contemplated and from the fact that, if symptoms emerged, the "support controls" suggested to be found in the Mental Health Act were far from clear in their application. As his Honour noted in his report to this Court, given in compliance with clause 2.27 of the Criminal Appeals and Procedure Rules 1998:

"Suggestions that the doctor would note that he had not received his regular treatment, that his family would make observations and take steps and that there were ways and means of communicating to doctors in other areas where the applicant may be were all too vague and uncertain to satisfy me that there was no serious risk if the order was revoked."

In any event the regime specified in the Mental Health Act is only enforceable at the instance of those responsible for its enforcement. It was, I think, well open to the learned judge to find that they might not be adequate to supervise the applicant if all court controls were removed.
I am, accordingly, of the view that his Honour's discretion was not fundamentally flawed because he imposed inappropriate fetters or pre-conditions upon its exercise. Nor, in my view and for the reasons stated, can it be said that it miscarried because he failed to give adequate weight to the so-called "support systems" which are contained in the Mental Health Act 1986. Furthermore, it is not correct to assert, as Dr. Freckelton did, that his Honour ignored the view of the psychiatric experts or substituted his own "unqualified view" for theirs. Quite apart from the fact that those opinions came from persons who, apart from Sister Fairest, had had little contact with the applicant, his Honour was correct to note that the opinions offered were not entirely unqualified. In his written report to the court, Dr. Illesinghe had said that, in his opinion, the applicant "does not carry any significant risk to himself or others at present". (emphasis added) Dr. Vine said that she was expressing her own opinion about the adequacy of "back-up support", but that she did "not speak for everyone". However, on any view, his Honour was not bound to accept the opinions of Drs. Vine and Illesinghe nor, in my opinion, was he substituting his own "unqualified view" for theirs. The discretion committed to the court by the legislature is to be exercised by it and not by professionals. It is a discretion to be exercised by balancing competing interests, the nature of which is familiar to judges, but not necessarily to psychiatric specialists whose opinions will usually be based on material different from that which is before the court, and upon considerations different from those which the court is bound to apply. This point was made, correctly as I think, by Eames, J. when considering the task committed to the court by s.35 of the Act upon a "major review". His Honour said ([1998] VSC 70 at [61]):

"It is clear that Parliament wanted the assessment of dangerousness, where it arises under s.35 in a major review to be made by a judge, not by psychiatrists, however much the judge may rely on expert opinions in informing himself or herself."

No different considerations apply when the judge is considering applications under s.32 or Schedule 3. The task is an important but lonely one. It is, in my view, wrong to argue that a judge does not perform it correctly merely because he does not fully accept the views of psychiatrists which are put before him. In this regard it is, perhaps, significant to note that the only report which clause 4 suggests that the court "may take into account" is the report of the Adult Parole Board last made before the Act was proclaimed. That report, as his Honour noted, disclosed the Board's assessment and recommendation in August 1997. The Board recommended "conditional release".

I simply note, lest it be thought that I had overlooked it, that I do not accept the submission that his Honour's decision amounted to an "unreasonable" exercise of the discretion on the ground that he had failed to give proper weight to the expert opinions. His Honour did not disregard those opinions. On the contrary he clearly took them into account in concluding that it was appropriate to "conditionally release" the applicant. The remarks made by Burchett, J. in Fuduche v. Minister for Immigration, Local Government & Ethnic Affairs[1993] FCA 503; (1993) 45 F.C.R. 515 at 528, upon which the applicant relied, do not, for the reasons stated, have application to the circumstances of this case.
Underlying much of what Dr. Freckelton submitted was the contention that, in making the order which he did, his Honour was simply perpetuating the applicant's current status which he assimilated to a non-custodial status. I do not accept that. The applicant was in fact and in law a person in custody by virtue of the "Governor's pleasure" order. As a consequence of his Honour's order he has now been released from custody upon conditions. This substantially changes his status. He is no longer required to annually seek to have his leave reviewed and renewed by the court under s.57. Furthermore, and perhaps more significantly, the stigma of "prima facie dangerousness" which the Act attaches to a person subject to "custodial supervision" no longer applies (see ss. 32 (2), 35 (3), 57 (2) and clause 4 (2) of Schedule 3). He will be entitled to apply, at the time which his Honour has fixed for review of his order under s.27 (2), for revocation of that order without having to have considered as a specific statutory pre-requisite whether he is a serious danger to himself or the community. (I do not overlook the general criteria to which the Court is to have regard under s.40.)
It remains to say that I do not agree that, in the exercise of his discretion, his Honour overstated the "test" which he was required to apply because, whilst discussing the scheme of the Act, he had said that "the overall object of the exercise is a detainee's re-integration into the community with no risk to himself or the community". (my emphasis) It is clear to me from the context of his Honour's reasons that this was merely a "short-hand" form of describing the scheme of the legislation and not his considered view of what clause 4 (2) of Schedule 3 required as the degree of satisfaction necessary to be formed as a pre-requisite to revocation of a custodial supervision order. This much is clear from his Honour's reasons when he came specifically to deal with the question of revocation. Those reasons leave no room to doubt that he was well aware of what it was that he was required to be satisfied about if he were to exercise the discretion to revoke.
For the reasons given, it is my view that none of the grounds raised for attacking the exercise of his Honour's discretion has been made out. In my opinion, the applicant has not demonstrated that the learned judge proceeded upon some erroneous principle, nor has it been demonstrated that he was mistaken as to the facts or took irrelevant considerations into account or ignored considerations to which he was bound to have regard. His decision, in my view, is not manifestly unreasonable or unjust. Even if I thought that there was some error in the reasonswhich his Honour gave, I would not be satisfied that this Court should make any other order in substitution for those which his Honour has made.

CHARLES, J.A.:

I agree with the President that this appeal should be dismissed and, subject to what follows substantially for the reasons given by his Honour.
Mr. Holdenson for the Attorney-General contended that the applicant has no right of appeal to this Court under s.34 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act"), although he informed the Court of his instructions that it had not been intended to draw any distinction to the disadvantage of "existing detainees" insofar as rights of appeal were given under s.34. I agree with the President that the applicant does have the right to appeal to this Court, and in particular I agree that, this being remedial legislation, it should be liberally construed for this purpose.
Dr. Freckelton for the applicant made a powerful case that the judge's exercise of his discretion had been flawed. I mention only the following three aspects of his argument, that the judge erred by -

(a) applying the wrong test to the exercise of the discretion in that the question asked by his Honour was whether the making of an order revoking the supervision order would pose no risk to the detainee or the community (the proper question being whether the revocation of the supervision order would seriously endanger the applicant or members of the public);
(b) imposing an extra-legislative and inappropriate pre-condition and improperly fettering the judicial discretion in concluding that the clear scheme of the Act required the Court to adopt a progressive lessening of supervision and control over a detainee before revoking the order;
(c) unreasonably rejecting the unanimous expert evidence called on behalf of the applicant in relation to the exercise of the discretion.

I would not necessarily accept the view taken by Gillard, J. that the court is required (as opposed to entitled) in relation to "existing detainees" to adopt a progressive lessening of supervision and control over such a detainee before revoking a supervision order. The scheme of the Act plainly enables existing detainees to apply to have their deemed custodial supervision orders revoked, provided they have been on extended leave for a period of at least 12 months. But I do not think it necessary to decide this point on this appeal.
Gillard, J. gave very careful attention to the evidence called. The evidence has been discussed in detail in the judgment of the President, and I need not repeat it. Although the evidence is without question strongly supportive of the applicant's case, and to the effect that he is not at present any risk to the community, the question remainedwhether the judge had been persuaded that a risk of serious endangerment to the applicant or members of the public would not arise from the revocation of the supervision order. In my view it is clear on a reading of the whole of the judgment of Gillard, J. that this is the test which his Honour applied.
I would also accept, for the reasons given by the President, that Gillard, J. was entitled to come to the conclusion that he was not satisfied on the evidence before him that there would not exist a relevant risk of serious endangerment. It plainly cannot be argued that the judge wrongly exercised his discretion because he did not fully accept (if that was the case) the expert views put before him. As the President has pointed out, there were both reservations and limitations in this evidence. In my view, it was open to Gillard, J. to have regard to circumstances which might arise if, as was contemplated, the applicant's medication was reduced or if there was a change in the manner in which medication was administered or if any changes occurred in family circumstances which were capable of producing stress. In this situation Gillard, J. was, I think, entitled to conclude that he was not persuaded that if there was a sudden and total removal of all court supervision, the safety of the applicant or the public would not be seriously endangered. In so doing, his Honour was not, I think, unreasonably rejecting the expert evidence called for the applicant, rather his Honour's judgment indicates substantial acceptance of that evidence. Insofar as the reasoning adopted by his Honour called for and resulted in a progressive lessening of supervision and control over the applicant before a revocation order can be made, in my view that conclusion resulted from the applicant having failed to persuade the Court in the relevant sense required by cl.4(2) of Schedule 3 of the Act.
Accordingly, none of the three arguments made by Dr. Freckelton mentioned in para. 70 above, were made good.

CHERNOV, J.A.

I have had the advantage of reading in draft the judgment of Winneke, P. For the reasons which the learned President assigns, I agree that there exists a right in the applicant to seek leave to appeal against the decision of Gillard, J. dismissing the application for revocation. I also agree that in the circumstances, the application should be refused.
So far as is relevant, Gillard, J. had two applications before him. One was for the revocation of the deemed custodial supervision order, brought under Schedule 3. The other was a s.32 application for a variation of that supervision order which was to be pressed only if the first application was refused. Both were heard together and although his Honour dealt with them separately in his judgment, he intimated to some extent in his decision relating to the revocation application, what he intended to do in respect of the second application. Since the application for leave to appeal is concerned only with his Honour's disposition of the first application, it is only necessary to deal with that proceeding and do so on the basis that it was the only application before the Court.
In the course of his judgment dealing with the application for revocation, his Honour made a number of observations concerning the operation of the Act. For example, he pointed out, correctly in my view, that its overall purpose is to facilitate the reintegration of persons who are subject to supervision orders into the community in circumstances where such reintegration does not seriously endanger the safety of the public or the applicant. This object is just as relevant to applications made by existing detainees under Schedule 3 as it is to applications made under Part 5 of the Act.
His Honour also recognised that Part 5 requires the Court to adopt a progressive lessening of supervision and control over the person before revoking the custodial supervision order. It seems clear enough that a two-stage process is imposed by Part 5 whereby, as a first step, the person's status is changed, usually with an accompanying reduction in supervision over his or her life. This has the obvious advantage of giving the Court the opportunity of evaluating how the person has coped with those changes over a period. It is then in a better position to decide whether it is appropriate to free that person of all court control. But such a process can commence only after the Court has been satisfied on the issue of endangerment. (I put to one side the need for the Court to be satisfied of the matters in s.32(3) in respect of a forensic patient or a forensic resident.)
In my view, however, the staged process that is imposed by Part 5 in respect of persons who are subject to custodial supervision orders, is not made compulsory in respect of applications under Schedule 3. This conclusion gains support from the terms of cl.4(1). First, it permits only a particular type of existing detainee to apply for revocation, namely, one who has been on extended leave for a period of 12 months and who, therefore, has already had some experience of being reintegrated into the community. Secondly and perhaps more importantly, the opening words of the clause "Despite anything to the contrary in Part 5", suggests that such an existing detainee can bypass the two-stage process provided for by Part 5 and seek to have the order revoked at once. It does not follow, however, that in the resolution of a Schedule 3 application, the Court is precluded from imposing conditions which have the effect of requiring the applicant to undergo a two-stage process of reintegration. For example, if the Court were satisfied on the endangerment issue, it could revoke the order unconditionally or on such terms as it thought appropriate. If it decided to impose conditions, they could be such as to subject the applicant to a multi-stage process of reintegration. Any such requirement, however, would be imposed because the court considered it appropriate and not because of legal compulsion.
In respect of the application for revocation, the first issue that his Honour had to resolve was whether he was satisfied that the making of the revocation order would not seriously endanger the safety of the applicant or members of the public. That this had to be resolved first was recognised by his Honour when he said in his judgment that: "The court has a discretion to revoke the order if satisfied on the evidence available, 'that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order'". His Honour then proceeded to examine the evidence bearing on this point. I agree with Winneke, P. that in analysing this issue, Gillard, J. did not mistake the test that he had to apply notwithstanding that at one stage he spoke of the object of the Act being a "detainee's reintegration into the community with no risk to himself or the community".
His Honour was satisfied on the evidence that the applicant was well controlled by his present medication and because of that and because of the other medical and family support which he enjoyed, he was not at that point a significant risk to himself or others. If a revocation order were made, however, the applicant would not be under any supervision or control as a matter of law and in the circumstances, his Honour was not prepared to find that such an order would not "seriously endanger the applicant or members of the public". Therefore, the real issue before this Court is whether his Honour was entitled to make that finding. In my view, for the reasons given by Winneke, P., his Honour was entitled to come to that conclusion.
It was plain on the evidence that the applicant was still in need of medical treatment and that if this were to cease, there was almost a certainty that the symptoms of illness with all the accompanying problems, would return. A key question for his Honour was whether he could be satisfied that if the applicant were totally free of court control, he would nevertheless continue to receive the required medication. Notwithstanding the large body of evidence that pointed to the strong likelihood of the applicant continuing with his medication of his own volition and that steps could be taken under the Medical Health Act to require the applicant to take medication, his Honour in the end was not satisfied that such circumstances would necessarily produce the result that the applicant would remain on required medication. In particular, his Honour took the view that the evidence concerning the support system under the Medical Health Act was not sufficiently clear to give him confidence that it could compel the applicant to continue with his medication. For the reasons given by Winneke, P., his Honour was not bound to act on such evidence or on the opinions of the experts. Once such a view was reached, it was only a short step to the conclusion that if court controls were totally removed, his Honour could not have the requisite level of satisfaction that a revocation order would not seriously endanger the applicant or members of the public. It was on that basis that his Honour dismissed the application to revoke the deemed custodial supervision order and, as I have said, it was open for him to come to that view.
Consequently, I agree that the application should be refused.

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RDM v Director of Public Prosecutions

Supreme Court of Victoria - Court of Appeal

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RDM v Director of Public Prosecutions [1999] VSCA 86 (4 June 1999)

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