Re AB
[2022] VSC 235
•31 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0154
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of a review of a custodial supervision order directed under s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of an application by AB for a suppression order under s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 August 2021 |
DATE OF JUDGMENT: | 31 August 2021 |
DATE OF REASONS: | 12 May 2022 |
CASE MAY BE CITED AS: | Re AB |
MEDIUM NEUTRAL CITATION: | [2022] VSC 235 |
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CRIMINAL LAW – Mental impairment – Offender found not guilty by reason of mental impairment – Offender the subject of a custodial supervision order (‘CSO’) – Review of a CSO – Parties unanimous that CSO should be confirmed – No grant of extended leave sought – CSO confirmed – Further review ordered in two years’ time – Suppression order sought by the reviewee – Public interest considerations – Suppression order application refused – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 27(2), 32(1)(a), 38C, 39, 40, 42, 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Ms S Dhanji | Victoria Legal Aid |
| For the Attorney-General | Mr M Taylor | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health | Mr J Teng | Department of Health, Legal Branch |
| For the Director of Public Prosecutions | Ms G Mazzone | Abbey Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
A custodial supervision order (‘CSO’) was made by Justice Jane Dixon on 7 October 2019 in respect of the reviewee, AB. At the time, a direction was given pursuant to s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) that the matter be brought back to the Court for review within 23 months of the date of the order. The time for the hearing of the review was extended by her Honour on 8 June 2021 and the hearing proceeded before me on 31 August 2021.
On 24 August 2021, the Court received a ‘consolidated response’ from the parties.[1] The response indicated that the reviewee, the Secretary to the Department of Health (‘the Secretary’) and the Attorney-General were all in agreement that the CSO should be confirmed pursuant to s 32(1)(a) of the Act. As is the usual course, the Director of Public Prosecutions (‘the Director’) did not take a position and was excused from attendance at the hearing, having discharged her obligation under s 38C of the Act to give notice of the review to the family members of the reviewee and the victims of the five offences with which AB was charged.[2] At the time of the review, no reports under s 42 had been filed.[3]
[1]The Court, on its own initiative in recent years, requires a ‘consolidated response’ from the parties to proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
[2]The Act, ss 27(2), 38C(1)-(2).
[3]Affidavit of Gabriella Mazzone, 25 August 2021 [9].
Pursuant to s 32(5) of the Act, the reviewee sought a further review of the CSO in two years’ time and the Secretary was agreeable to this position. The Attorney-General was not opposed to a two year timeframe, notwithstanding the fact that the Attorney-General ordinarily does not take a position on the length of time until a further review.
The consolidated response indicated that the parties were all agreeable to the review proceeding on the papers. The response also indicated that the reviewee sought a suppression order pursuant to s 75 of the Act in the following terms:
The proceeding is subject to a non-publication order under section 75 of the Act prohibiting, until further order, the publication of any evidence in the proceeding, the content of any report put before the Court in the proceeding or any information that might enable the Applicant to be identified.[4]
[4]Consolidated response received by the Court via email, 24 August 2021.
Neither the Secretary nor the Attorney-General took any position regarding the proposed suppression order.
Due to the application for the suppression order, the matter was listed for hearing. No evidence was led or submissions made in relation to the outcome of the review. Evidence was called and submissions were made on behalf of the reviewee on the matter of the suppression order.
At the conclusion of the hearing, I announced my decision to confirm the CSO and ordered the matter be brought back to the Court for further review within two years of the date of judgment; that is, on or before 31 August 2023. With respect to the reviewee’s application for a suppression order (‘the application’), I reserved judgment.
I indicated at the time that I would publish my reasons for the orders confirming the CSO and setting a time for the hearing of a further review, at a future time. I also indicated that I would publish my decision on the application for a suppression order and my reasons for that decision at a future time.
My decision on the application for a suppression order, as well as my reasons for that decision and for the decisions to confirm the CSO and set a time for the hearing of a further review, follow.
Background
The background to this review is detailed in the original judgment of Jane Dixon J, her Honour finding that the evidence established the defence of mental impairment in respect of each charge against AB.[5] The two subsequent decisions of her Honour in this matter were restricted from publication at the time of this hearing.[6]
[5]DPP v AB [2018] VSC 681 [1]-[16], [42].
[6]DPP v AB [2019] VSC 526R; DPP v AB [2019] VSC 687R.
AB comes before the Court as a 60 year old male with a diagnosis of schizophrenia.
To briefly summarise the index offending, AB committed a series of offences between 30 October and 5 November 2017 while floridly psychotic, having ceased taking medication about seven months prior to the offending.[7] He was arrested and later indicted on five charges, namely, attempted murder, intentionally causing injury, arson (two charges) and damaging property.[8]
[7]Psychiatric Court Report by Dr Gideon Dubow dated 26 July 2021 [13].
[8]Indictment No. H13459444.
Upon finding that AB was not guilty of the five charges by reason of his mental impairment and declaring him liable to supervision under Part 5 of the Act, her Honour imposed a CSO on 7 October 2019 for a nominal term of 25 years.[9] AB was committed to the custody of Thomas Embling Hospital (‘TEH’), her Honour having determined that this facility was the only appropriate place for AB to reside.[10] He was admitted into the Bass subacute unit on 7 October 2019.
[9]DPP v AB [2019] VSC 687R.
[10] DPP v AB[2019] VSC 526R [86].
This review is the first review of the CSO, AB having resided at TEH for almost two years at the time of the hearing of the review, and over two-and-a-half years now.
In respect of the suppression order application, I am not aware of any suppression orders that have previously existed in this case. This application is therefore the first to be brought since AB was committed to this Court on 31 May 2018.[11]
[11]Notice of Committal for Trial filed on 5 June 2018.
The law
Review of a CSO
On the review of a CSO under s 27(2) of the Act, the Court must either confirm the order, vary the reviewee’s place of custody or vary the order to a non-custodial supervision order (‘NCSO’).[12]
[12]The Act, s 32(1).
The discretion to vary a CSO to a NCSO cannot be exercised unless the Court is satisfied that the safety of the person subject to the CSO, or members of the public, will not be seriously endangered as a result of the variation.[13] Additionally, the person the subject of the CSO must have completed a period of at least 12 months extended leave under s 57 of the Act before such a variation can be made.[14] I note that the reviewee has not completed 12 months’ extended leave, nor is a grant of extended leave sought by him in this proceeding.
[13]Ibid s 32(2).
[14]Ibid s 32(3)(a).
Any determination under s 32 of the Act must be informed by the guiding principle in s 39(1) and the matters set out in s 40 of the Act. Section 39(1) provides:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) and (2) relevantly provide:
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(a)the nature of the person's mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e)whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
(2)The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it—
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on —
(i) the person’s mental condition; and
(ii) the possible effect of the proposed order on the person’s behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c)is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)has considered any report of the family members or victims made under section 42; and
…
(e)has obtained and considered any other reports the court considers necessary.
Suppression Orders
Section 75(1) and (2) of the Act provide:
(1)In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order—
(a) that any evidence given in the proceeding;
(b)that the content of any report or other document put before the court in the proceeding;
(c)that any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified—
must not be published except in the manner and to the extent (if any) specified in the order.
(2)An order under this section may be made on the application of a party or on the court’s own initiative.
Expert evidence
Review of the CSO
The Court received an expert report from Dr Gideon Dubow, consultant psychiatrist with the Victorian Institute of Forensic Mental Health (‘Forensicare’), dated 26 July 2021.[15] I am satisfied that this report meets the criteria set out in s 40(2)(a) and (b) of the Act.
[15]Exhibit A.
At the time of his report, Dr Dubow had been the reviewee’s treating psychiatrist from the time of his admission to TEH on 7 October 2019. In preparing his report, Dr Dubow had access to the reviewee’s inpatient clinical file, as well as various psychiatric and other reports.
In his report, Dr Dubow set out a description of the personal and psychiatric history of the reviewee, the index offending, and the progress made by the applicant since his admission to TEH. He noted that the admission of the reviewee was into the Bass subacute unit, reflecting the satisfactory progress he had already made while in prison. He described the then-current mental state[16] of the reviewee in quite encouraging terms, including noting that at no point since his admission to the Bass unit has there been any evidence of delusions or hallucinations.
[16]As at 26 July 2021.
In terms of his risk assessment, aided by the use of the most recent results of the HCR-20 tool,[17] Dr Dubow opined:
In my opinion [AB] is at low to moderate risk of being violent while in Bass Unit.[18] He is not psychotic. He has never been threatening while in Bass Unit. He appears to have gotten over previous disappointments or frustrations while in the ward without holding grudges. He is also not just content in Bass Unit, but he wishes to remain in the hospital. It appears that he experiences the hospital as a safe home away from an outside world in which he has struggled to feel secure for most of his life.
However, were [AB] to be living in the community at this time, I believe his risk of violence would be high. This assessment is premised on two broad reasons.
Firstly, [AB’s] history clearly demonstrates that he has [come] close to committing acts of very serious violence related to being psychotic on at least three occasions prior to his index offence.
Secondly, though his risk within the hospital is assessed as being low to moderate in the context of him being free of psychosis and affable in his manner, he has repeatedly informed Bass staff that he is anxious about again living in the community and reluctant to do so. I believe that in large part this reluctance arises from his anxiety and loneliness which he has experienced in the community, and from which the hospital affords him great relief. I believe further that he would again become anxious and lonely were he to be living in the community at this time and that this in turn would place him at greater risk of relapsing into psychosis and to acting in response to that psychosis. [19]
[17]The Historical, Clinical and Risk Management-20, a structured tool used to assess the risk of violence.
[18]A subacute rehabilitation ward at Thomas Embling Hospital.
[19]Report of Dr Dubow [36]-[39].
Dr Dubow went on to express the opinion that AB should remain on a CSO. He stated:
I believe that were [AB] to be living in the community his risk to the community would be high and that this high-risk status could arise in a short period of time.
The chances of [AB] being able to live in the community at some point in the future are good but his dependency on the hospital is high. Any proposed transition towards community living will need to be very gradual. His age is in some respects in his favour as regards [to] finding suitable community placement with appropriate levels of support as such services are more available for older patients.[20]
[20]Ibid [40]-[41].
Dr Dubow did not express a view on the appropriate time frame for further review of the CSO in his report. However, Dr Dubow’s opinion on this issue was set out in the consolidated response, in which it was indicated that the Secretary had sought the opinion of Dr Dubow, and he was agreeable to a further review occurring in two years.
Conclusion on review
Having taking into account the parties’ agreement that the CSO should remain in force, and the unchallenged opinions of Dr Dubow as to AB’s high risk of violence were he to reside in the community at this stage in his rehabilitation, I was prepared to act upon the evidence and confirm the CSO.
I also reached the view that it would be appropriate to order that the matter be brought back for further review two years from the time of my decision on the review.
I now turn to the reviewee’s suppression order application and the evidence of Dr Dubow in respect of this.
Suppression order application
In view of Dr Dubow’s employment with Forensicare, he was called as a witness by Mr Teng who appeared on behalf of the Secretary. However, I note that Mr Teng did not have any material questions for the witness. As indicated in the consolidated response, neither the Secretary nor the Attorney-General sought to be heard on the application. Ms Dhanji, who appeared for the reviewee, cross-examined Dr Dubow on the appropriateness of a suppression order in this case and made submissions which I will later come to consider.
In his evidence before me, Dr Dubow discussed AB’s involvement in the community through day leave[21] which has included offsite visits to a church and trips to nearby park lands, shopping centres and a golf course. Outside of Victoria’s COVID-19 lockdowns, AB attends the community church on a weekly basis. Dr Dubow expressed support for AB’s engagement in community activities, assessing his need for companionship and interaction with people as ‘probably stronger’ compared to other patients with similar illnesses.
[21]Granted by the Forensic Leave Panel.
When asked by Ms Dhanji whether he supported the making of a suppression order, Dr Dubow stated:
I'm going to give the same answer I've given to all courts when the same question's been posed. I haven't specifically canvassed or assessed [AB] in relation to this issue but it's difficult to conceive of any patients who would benefit from their case being publicised. So on that basis I'm happy to say that it can only be in his interest. Additionally [AB] is quite a sensitive person. He's a person that takes slights very easily. He takes things to heart very easily. More than the average patient here, however at times can be relatively tuned out from the external world. So my generic argument probably applies slightly stronger to him.[22]
[22]Transcript of the application on 31 August 2021, 11.
Dr Dubow opined that were AB’s case to attract media or public attention, in the absence of a suppression order in place to protect his identity, then this may be a source of emotional distress to AB. He added:
I don't think you can make a strong argument that it would likely cause a form of relapse into psychosis but it would certainly cause emotional distress.[23]
[23]Ibid.
In response to questions from me, Dr Dubow indicated that his routine position if asked in respect of any patient whether he would be supportive of a suppression order being made was that he would be supportive. He stated that he was not aware of there having been any adverse publicity in the past concerning AB’s case. He noted that cases which attract a fair amount of publicity tend to do so at the time of the offending or initial hearings, so it isn’t likely that AB’s case will attract attention down the line.
Submissions for the reviewee
Ms Dhanji for the reviewee submitted that a suppression order would support AB to continue engaging in the community, would be of therapeutic benefit to him, and would be conducive to assisting him to maintain his mental state, hence mitigating risk both to himself and to the community. Ms Dhanji for the reviewee submitted that negative attention from the community, and in particular from the media, ‘may become a potential stressor that impacts on [AB’s] mental health and causes him to destabilise.’[24] She took me to the evidence of Dr Dubow suggesting that AB had himself checked whether there is anything written on the internet about him, and had asked TEH staff to check also. Ms Dhanji contended that the prospect of AB’s case one-day becoming the subject of media publicity is a matter of concern for him and causes him ‘some anxiety.’[25]
[24]Transcript, 2.
[25]Ibid, 3.
In terms of whether any reports or public information about the index offences currently exists on the internet, Ms Dhanji was not aware of any such material. Neither was she aware of any suppression orders previously in place to protect the identity of AB or restrict publication of the details of his index offending.[26] Ms Dhanji accepted that these are matters which weigh against the making of a suppression order, particularly in light of the fact that ‘this is not a case where the horse has bolted in terms of media scrutiny.’[27] Even so, Ms Dhanji submitted that were AB’s identity and possibly those of the victims to remain accessible to the media and the general public, then this, in turn, may negatively impact on AB, noting his particular sensitivities.
She stated:
It may not result in a formal relapse necessarily and he is within the confines of Thomas Embling such that he would be appropriately supported. But, in my submission, a suppression order would support him to continue engaging with the community. Your Honour's heard evidence that he engages with the church and he has ambitions to volunteer at a soup kitchen. He plays golf, visits the local parklands and visits the shopping centres nearby. In my submission, these are important and stabilising features in his progress as they create opportunities for him to form friendships and be part of a community.[28]
[26]Ibid, 4.
[27]Ibid, 14.
[28]Ibid, 14.
Further, Ms Dhanji submitted that a suppression order stands to therapeutically benefit AB. Such an order would be of assistance to AB in maintaining his mental state and mitigating any risk of violence posed to himself or the community.[29] AB’s application for a suppression order goes beyond his personal preference for one; it is made on the basis that his progress towards more frequent and meaningful engagement with the community is best served by the existence of an order. Ms Dhanji pointed to AB’s interest in volunteering at a soup kitchen as an example of his motivation to be more connected with members of the community.[30]
[29]Ibid, 15.
[30]Transcript, 18.
Analysis
The Act does not place a blanket ban on the reporting of proceedings to which the Act applies. It has been said by a number of judges of this Court that suppression orders in these types of proceedings should not be made simply as a matter of routine,[31] even though the general view of medical experts is that suppression orders are of therapeutic value to almost all patients.[32]
[31]See, for example, Re PL [1998] VSC 209, [27] (Cummins J); Re Cavallari [2016] VSC 478, [21] (‘Re Cavallari’) (Hollingworth J); In the matter of any application by “RK” [2021] VSC 192, [16] (Emerton JA).
[32]In the matter of an application for further review of a custodial supervision order of “BS” [2016] VSC 524, [44] (Weinberg JA).
Whilst I accept that the making of a suppression order is in AB’s personal interests, I am required by s 75 of the Act to consider where the public interest lies and whether there is compelling evidence to support a shift away from the common law principle of open justice. As stated by Weinberg JA in In the matter of an application for further review of a custodial supervision order of “BS” [2016] VSC 524 (‘BS’):
In my opinion, an order of the type sought by the reviewee in this case should only be made upon evidence of a most cogent nature, indicating that such an order is required in the public interest. As a general proposition, the media are entitled to report whatever they see fit, save where to do so would be so very detrimental to the reviewee, or to the wider public interest, that s 75 could legitimately be invoked to prevent that from happening. It would require powerful evidence to persuade me that a prohibition upon publication, along the lines of what is now sought, would be warranted in the public interest...[33]
[33]Ibid, [41].
What was sought by the reviewee in the matter of BS was a suppression order in similar terms as the order sought by AB; that is, a total ban on identifying the reviewee in any future media reports.[34] In AB’s case, it is difficult to imagine a reason why the media would be driven to report on his offending – some four and a half years later – with no prior reports available in the public sphere. Nor is there are any indication that the media intend to release information on AB’s offending in the near future.
[34]Ibid, [39].
In determining where the public interest lies, it is of assistance to consider what was said by the High Court in Hogan v Hinch[35] in connection with the consideration of a suppression order made by a County Court judge under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic):
In exercising its powers under s 42, the court must assess public interest by reference to the place of the section in the statutory scheme, the purpose of the Act as a whole and the purposes of extended supervision orders. In determining whether to make a suppression order with respect to identification of an offender, the court must consider the extent, if any, to which the order would enhance the protection of the community. It must also consider its effect upon the offender's prospects of rehabilitation. Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest. A court considering such an order must also look to the larger constitutional and legal context which informs the interpretation of the statute, having regard to the effect of the order upon the open justice principle, on common law freedom of speech, and on the human rights guaranteed by the Charter. The application of a public interest criterion may require a balancing of competing interests and "be very much a question of fact and degree."[36]
[35][2011] 243 CLR 506 (‘Hogan’)
[36]Ibid [32] (citations omitted).
Having referred to that passage in Hogan, Hollingworth J in Re Cavallari stated:
In general terms, the Act seeks to strike a balance between protecting the community, and advancing the therapeutic needs of offenders who suffer from a mental illness. Of course, community protection may itself be enhanced by promoting the rehabilitation of offenders.[37]
[37]Re Cavallari, [20]. Cited in In the matter of an application by “RK’ [2021] VSC 192, [14].
Her Honour accepted that in many cases, the rehabilitation and reintegration into the community of offenders suffering from a mental illness may be best achieved if the offender is not subject to ongoing media scrutiny. Whilst suppression orders are commonly made in proceedings under the Act, however, they should not simply be made as a matter of routine.
In respect of the matters of BS and Re Cavallari, these applications for suppression orders were brought in reaction to a run of negative media attention directed at the reviewees. In BS, the reviewee had previously been the subject of a Channel 9 television program and a Herald-Sun article, and at the time of the hearing had been notified that his identity and the details of his index offending were soon to be featured in another program.[38] In Re Cavallari, the reviewee was the subject of a newspaper article that unfortunately linked him with three other offenders who had killed their domestic partners but, unlike Mr Cavallari, were not operating under a mental impairment at the time of their offending.[39] Despite the media scrutiny that had been levelled at BS and Mr Cavallari respectively – and in BS’s case, was foreshadowed to take place again in the future – the learned judges were not prepared to make suppression orders. In my opinion, the applications made in BS and Re Cavallari were much stronger than the application made by AB in the present case. This is because AB has never been a target of media scrutiny and nor is there any suggestion that he is likely to be in the future.
[38]BS, [32]—[33].
[39]Cavallari, [5]-[6].
Conclusion on suppression order application
Having considered all of the evidence led on this application and the submissions made on behalf of AB, I am not satisfied that it is in the public interest to make a suppression order.
I do not accept that AB’s prospects of rehabilitation or his progress towards increased community involvement will be significantly affected by my decision not to make a suppression order at this time. In my opinion, the fact that AB remains on a CSO and has not yet reached a stage in his rehabilitation where he is pursuing a grant of extended leave, supports the finding that any emotional distress caused to AB by the lack of a suppression order is likely to be tempered or managed by treating staff at TEH, and indeed by AB himself.
In my view, the evidence of the possible emotional distress or destabilisation in AB’s mental health that may transpire were he ever to be the subject of media attention, does not reach the threshold required by s 75 of the Act.
The application is refused.
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