Re an application by PL

[1998] VSC 209

SUPREME COURT OF VICTORIA

CRIMINAL JURISDICTION

Not Restricted

No. 1501 of 1998

IN THE MATTER	of an application under s.57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
and
IN THE MATTER	of an application by P.L.

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JUDGE:	Cummins J.
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 27 and 30 October 1998
DATE OF JUDGMENT:	15 December 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 209

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Mental impairment - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s.57 - Application for grant of extended leave - Considerations applicable - Application for suppression order under s.75 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. Backwell	Victoria Legal Aid
For the Director of Public	Ms I. McGregor	Office of Public Prosecutions
Prosecutions
For the Attorney-General	Miss B. King QC	Victorian Government
with Mr G. Mullaly	Solicitor
For the Department of	Mr R.S. Hodgens	Russell Kennedy
Human Services

HIS HONOUR:

1. HIS HONOUR: The applicant Mr P.L. has by notice filed on 4 June 1998 applied to the Court pursuant to s.57(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act") for the grant of extended leave, he currently being a resident of the Rosanna Forensic Psychiatry Centre, Rosanna, and being a forensic patient within the meaning of s.3 of the Act. The applicant had on 17 May 1993 been found not guilty of murder by reason of insanity, pursuant to the then s.420 Crimes Act 1958 (and now abrogated: see s.25(1) of the Act and effectively now supplanted by the verdict of mental impairment: see s.20 of the Act). Thereafter he had been custodially held in circumstances to which I shall shortly come.

2. The applicant also on 4 June 1998 filed an application pursuant to s.31(1) of the Act for variation or revocation of the supervision order which presently applies to him. At the outset of the hearing before me, Mr Backwell who appears for the applicant announced that the application for variation or revocation of the supervision order was withdrawn. The matter thus proceeds before me solely as an application for the grant of extended leave. The nominal term of the relevant supervision order under the Act is 25 years (see s.28(1)) and in the case of the applicant is due to end in 2018.

3. The applicant was born in January 1967 and is now almost 32 years of age. On 22 August 1992 (when he was 25 years of age) he was charged with the murder on 20 August 1992 at St Kilda of Graham John Jackson. The deceased was the caretaker of apartments in St Kilda. He died from numerous stab wounds. The applicant was charged with the murder of the deceased and ultimately stood trial in this Court on 17 May 1993. After a one day trial he was found by a jury to be not guilty on account of insanity.

4. At the trial of the applicant evidence was led that the applicant had had a long- standing psychiatric condition of schizophrenia. He had first been hospitalized in 1985 at the age of 18 with a diagnosis of schizophreniform psychosis in the setting of marijuana abuse. He was again hospitalized in 1988 and again in 1992, some four months before the fatal incident. It is not necessary for the purpose of these reasons to rehearse the very unhappy circumstances of the death of the deceased. At the trial the prosecution called the informant, Detective Senior Constable Cadogan-Cowper, and a distinguished psychiatrist, Dr. A. A. Bartholomew. Dr Bartholomew gave evidence that having read the relevant reports, in his professional opinion the applicant was undoubtedly schizophrenic and at the time of the fatal acts did not have the capacity to appreciate the wrongfulness of his actions. After directions of law by the trial judge the jury returned a verdict of not guilty by reason of insanity.

5. I have examined the transcript of the trial and the exhibits thereto, including the statements of the pathologist, Professor S. M. Cordner, the report of Dr E. Ogden, forensic physician, of 26 August 1992 and the interview of the applicant at the Homicide Squad offices on 22 August 1992 by Detective Senior Constable Brachen. I also have had regard to reports of the psychiatrists Dr Ruth Vine of 22 March 1993 which stated that the applicant suffered from schizophrenia and of Dr Lester Walton of 1 April 1993 which stated that the applicant "can be unequivocally diagnosed as suffering from paranoid schizophrenia, a condition which was well documented prior to the incident". I have also had regard to the report of the Adult Parole Board of 9 October 1998.

6. Upon his arrest on 22 August 1992 the applicant was placed in Pentridge Hospital and three days later transferred to the Rosanna Forensic Psychiatry Centre pursuant to the provisions of s.16(3)(b) Mental Health Act 1986. There he was admitted to the acute assessment unit, Ward M6. He was returned for a brief time (two weeks) to the prison system in February 1993. He was again certified on 11 March 1993 and returned to Rosanna. In September 1993 he progressed to Ward M5, the rehabilitation ward. With the benefit of professional treatment and medication the applicant's position has steadily improved. He participated in ward activities. Progressively he was given escorted leave and thereafter in April 1997 commenced to reside in a group home in the hospital precinct, commenced voluntary work in the community and, later, part-time paid work. In November 1997 he commenced limited overnight leave to stay with close relatives. Over the years the applicant's medication has been refined and changed, with beneficent effect. It is now proposed that the applicant reside in a unit owned by his father in Brunswick and that his psychiatric care be transferred to the Community Forensic Mental Health Clinic in that suburb.

7. In reviewing the progress of the applicant I have had the benefit of evidence before me of Dr Ruth Vine, authorized psychiatrist of the Victorian Institute of Forensic Mental Health and Consultant Psychiatrist and of reports by her of 9 June 1998 and 7 October 1997 (together with her earlier mentioned report of 22 March 1993).

8. In evidence before me Dr Vine stated that in her opinion the safety of the public and of the applicant would not be seriously endangered if he commenced to reside in the Brunswick premises upon the terms proposed. She stated that in her opinion, provided the applicant continues his psychiatric supervision and medication, which he is fully prepared to do, "his mental state really has been very stable now for some time and his interactions with members of the community entirely appropriate." She stated that when the applicant first came to Rosanna he was "a very ill man indeed with extensive delusional beliefs, but since those symptoms have been controlled there have been no further instances, no further relapses into schizophrenia". She stated that the applicant continues to have schizophrenia, and will continue to do so, but that it is well controlled by treatment. She stated that initially the applicant had "absolutely no insight" into his condition but that he has now developed "quite extensive insight". She also stated (as she did in her report of 9 June 1998) that the applicant also recognizes the danger of marijuana usage which, in the pre-incident period, had caused him significant problems.

9. I have had regard to the leave plan proposed, namely that:

(a)	leave be granted for the applicant to reside in Brunswick;
(b)	that he be under the supervision of the Authorized Psychiatrist of the Victorian Institute of Mental Health;
(c)	that he reside at the premises at Brunswick or other address as directed by the supervisor;
(d)	that he receive a home visit from the community psychiatric nurse/case manager initially on a weekly basis;
(e)	that he comply with the lawful directions of the supervising Authorised Psychiatrist;
(f)	that he comply with treatment and submit to urine drug screens and attend appointments as directed by the Authorised Psychiatrist or his or her delegate; and
(g)	that he abstain from the abuse of alcohol and the use of illicit drugs.

Having reviewed the above material and with the benefit of the evidence and reports of Dr Vine I am satisfied that the criteria for the grant of extended leave pursuant to s.57 of the Act are met, in particular pursuant to s.57(2) that the safety of the applicant and the public will not be seriously endangered as a result of the applicant being granted extended leave.

1. Affidavits filed before me pursuant to s.40(2)(c) of the Act establish that the applicant's family and relatives of the deceased have been notified of the applications (which, as I have stated, initially included applications for revocation or variation of the supervision order but which were not proceeded with before me). In a response a sister of the deceased wrote (Exhibit A to the affidavit of Miss I. McGregor, solicitor of the Office of Public Prosecutions sworn 5 October 1998):

   "On behalf of my family we wish to advise you that we will not be putting in a report to the Court on (P.L.) We feel that the Courts have let us all down yet again. We cannot understand how somebody who is supposed to be insane can walk free. You do not stab someone 13 times then six years later are allowed out into the community. My family are just ordinary hard-working people, and we are very tired of hearing about things like this that people go free after a short time. Our family have to live with it for the rest of our lives. We have just put things behind us and are starting to get on with life when we were told (P.L.) had applied for revocation of the variation of his supervision order, but we believe he has already been out of Rosanna Psychiatry Centre so we feel the Courts will grant his appeal. We totally disagree with it."

   That is a letter one should take seriously. It is not a product of vindictiveness, nor even of punitiveness (which, despite the acquittal of the applicant on account of insanity, would be understandable upon the wholly unjustified killing of a relative). Rather, it is a letter of disillusionment, if not of despair and of alienation, and it is a crie de coeur. In other applications under the Act I have encountered similar sentiments. Only yesterday in a like application for revocation or variation of a supervision order and for grant of extended leave, only the last being pursued at the hearing, a relative of the deceased in response under s.42 wrote:

   "It is with great difficulty that we put pen to paper ... Your Honour, please don't just skip over this letter. Please read every word ... if you have not read the circumstances of our daughter's 'murder' we beg you to read the police brief of evidence, view all the photographs and correspondence. Please do not rubber-stamp a release."

   Such very understandable concerns may be extrapolated to the general community; not that persons acquitted because of mental impairment (s.20(2) or its insanity predecessor s.420 Crimes Act 1958) should be punished, but rather a two-fold concern: first, community safety; and, secondly, open and responsible process. I take those matters in turn.

2. The legitimate concern of the community (both immediately of the families concerned and generally) for safety is well addressed by the Act. Applications to make, vary or revoke orders made under Parts 3, 4 and 5 of the Act have as a central criterion the securing of family and community safety. The basal principle is laid down in the Act by s.39:

   "In deciding whether to make, vary or revoke a supervision order or to remand a person in custody 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."

   Likewise, the Attorney in the second-reading speech to the Bill, stated that the Bill ad the following aim (amongst others):

   "... to set out the matters to which a court should have regard and, in so doing, to strike the appropriate balance between the protection of the community, on the one hand, and the clinical or therapeutic needs of the person on the other." (Hansard, Assembly, 18 December 1997 p.185.)

3. Section 40(1) of the Act provides that the Court must have regard (amongst other things) to:

"(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 ..."

1. By s.40(2) it is provided that:

   "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 -

   ... (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 release or reduction is proposed to be ordered; and

   (d) has considered any report of the family members or victims made under section 42 ... "

2. In relation to extended leave of absence pursuant to s.56 and s.57 (which are in Part 7 of the Act), again it is provided:

"(2):  The court must not grant an application ... unless satisfied on the evidence available that the safety of the applicant or members of the public will not seriously be endangered as a result of the applicant being allowed leave."

1. Predicting dangerousness is notoriously difficult. No guarantees ever can be given. Bearing in mind that many applicants have killed, the court moves very cautiously. The court carefully takes into account the circumstances of the original events. On the question of community safety, the court has regard to the length of time between the events and the application because the applicant has been found to have committed the relevant serious actions. The court examines the treatment, insight and progress of the applicant and considers expert evidence from very experienced medical and other professionals. It calls upon its own experience of human behaviour and of recidivism and reformation. Thus the court proceeds with as much responsible data as reasonably can be obtained, to seek to ensure community safety as contemplated by the Act. However, it must be remembered that applicants found not guilty by reason of mental impairment (or previously insanity) have not been convicted of a crime. Characteristically, they have suffered from a mental illness. The court's jurisdiction in that respect is protective. It should be remembered that ultimately the best protection for the community is that persons found not guilty by reason of mental impairment are able to return to the community as useful citizens.

2. The legitimate concern of the community for open process is also addressed by the Act. The Act is a signal advance in that it removes the determination of these matters from executive discretion in private to judicial decision in public. The Attorney in the second-reading speech to which I have referred stated that the Bill "provides for the courts, rather than the executive, to be responsible for making highly sensitive release decisions" (p.184).

3. The utilization of the courts in these matters has a number of corollaries. First, the matters must be examined independently, on evidence, fairly and without bias, and consonant with the provisions of the Act. Second, the court proceeds according to principle, not mere discretion. Third, the court is careful to ensure that physician/patient privilege is respected consistently with the provisions of the Act and with its aims stated above. Next, the court will look to a range of matters as provided by the Act and which are not necessarily co-extensive with solely medical or even therapeutic criteria. The judge is not a psychiatrist wearing a wig. Finally, the process is public.

4. It is of the essence of the judicial process that it is public. The courts, rightly, have always resisted pressure to function in private. Sometimes that pressure is from high motives, sometimes base. But it is ever present and must be resisted.

5. Kirby P (as he then was), otherwise dissenting in John Fairfax Group Pty Ltd v. Local Court of New South Wales and Others (1992) 26 N.S.W.L.R. 131 at 142-3, stated:

   "It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... "

6. Before him, Gibbs J (as he then was) in Russell v. Russell (1976) 134 C.L.R. 495 at 520, referring to open courts, stated:

   "This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative tribunals, for 'publicity is the authentic hallmark of judicial as distinct from administrative procedure'."

7. Before him in Scott v. Scott (1913) A.C. 417 at 463 Lord Atkinson stated:

   "The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning public confidence and respect."

8. And Lord Shaw in that case at 477-8 stated:

   "The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary - and they appear to me still to demand of it - a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves."

9. Before him the 19th Century philosopher Jeremy Bentham in his Rationale of Judicial Evidence in 1827 wrote, rightly, that:

   "Publicity is the very soul of justice ... it keeps the judge himself, while
   trying, under trial."

10. The dangerous corollary has been well expressed by Kafka in "The Trial" 1925 that:

    "K. might care to remember that the proceedings were not public; they could be opened to the public if the Court thought this was necessary, but the Law did not insist on publicity."

11. In the Act, by s.75(1) it is provided:

    "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 a defendant or another 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."

12. That provision may be contrasted the s.18(1)(c) Supreme Court Act 1986 which provides that the court may in defined circumstances:

    "make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding."

1. The activating criterion in s.75(1) ("that it is in the public interest to do so") includes the public interest in the applicant's progressive rehabilitation not being deflected or defeated. That is an important interest which must be given due and proper weight. However, a suppression order of its nature is antipathetic to the judicial process. It follows that suppression orders should not be granted, or come to be granted, routinely. The powerful and fundamental value of the community's knowledge of the judicial process in its midst should not be whittled down by a developing habit of suppression. Nearly always, publication of the identity of an applicant will be likely to cause some difficulty to the applicant or to have some deleterious effect upon rehabilitation. Plainly, in some cases the degree of such negative impact will justify, indeed necessitate, a suppression order. But in others it will not. The degree of likely negative impact needs to be examined in each case. The existence of negative impact will not of itself justify a suppression order. Sufficient negative impact needs to be established to justify departure from the fundamental that courts are open.

2. It is insufficient to say that the court remains an open, not closed, court when a s.75 suppression order is imposed. Very few members of the public are able to come to court. The public depends upon publicity, in the Benthamite sense, which today is disseminated by the media. Burger C.J. in Richmond Newspapers Inc. et al v. Virginia et al 448 US 555 (1980) said at 572-3:

   "Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense this validates the media claim of functioning as surrogates for the public."

3. Nor is it sufficient to say that pursuant to s.40 relatives of the applicant and victim are notified. Important though those persons are, the general public also has a vital interest in proceedings under this Act.

4. For the reasons I have stated I grant the order for extended leave sought by the applicant. In this case I am satisfied in order to preserve the rehabilitation of the applicant that the limited suppression order I have made should continue and, accordingly, it remains in operation.

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