Re Salter (a pseudonym)
[2018] VCC 629
•14 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| In the matter of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 -and- In the matter of JACOB SALTER (a pseudonym) -and- In the matter of a Review and an Application for Revocation of a Non-custodial Supervision Order -and- In the matter of an application for a Suppression Order | ||||
JUDGE: | Lewitan | |||
WHERE HELD: | Melbourne | |||
DATE OF HEARING: | 19 March 2018 | |||
DATE OF RULING: | 14 May 2018 | |||
CASE MAY BE CITED AS: | Re Salter (a pseudonym) | |||
MEDIUM NEUTRAL CITATION: | [2018] VCC 629 | |||
---
Subject:Supervision Order Review, Application for revocation of non-custodial Supervision Order; Application for Suppression Order
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Wilkinson | John Cain |
| Solicitor for Public Prosecutions | ||
| For the Reviewee For the Attorney-General For the Secretary to the Department of Health and | Ms S Delaney Ms A Haban-Beer Ms E Frawley | Victoria Legal Aid Victorian Government Solicitors office |
HER HONOUR:
1
Jacob Salter[1] was charged with causing serious injury intentionally on
2 September 2012. On 2 December 2013 I was satisfied that the evidence established the defence of mental impairment. I directed that a verdict of not guilty by reason of mental impairment be recorded pursuant to s.20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act).
[1] Jacob Salter is a pseudonym.
2
On 14 February 2014, I declared Mr Salter liable to supervision under Part 5 of the Act and made a non-custodial supervision order (NCSO). Pursuant to s.27 of the Act the supervision order was for an indefinite term. Pursuant to s.28 of the Act, the nominal term of the supervision order was 20 years from
14 February 2014. Mr Salter’s order has been reviewed annually[2] and confirmed on each occasion. On 20 March 2017 the Court confirmed the NCSO and directed that the matter be listed for further review in March 2018. This is the fourth review.
[2] 28 January 2015, 15 March 2016 and 20 March 2017.
3 Mr Salter is a 31 year old single unemployed man who lives with his mother. He is a recipient of the Disability Support Pension.
4 On 2 January 2018 Mr Salter made an application to revoke the NCSO under s.31 of the Act. Section 31(1) of the Act provides that the person subject to the order may apply to the court that made the supervision order for a revocation of that order.
5 Section 33 of the Act provides that on an application for revocation of a NCSO the Court must, by order –
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision order, or
(d) revoke the order.
6 Section 33(2) of the Act provides that unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
7 Section 41(3) of the Act provides that if a supervision order is made, the Secretary to the Department of Health and Human Services must arrange to have prepared and filed with the court that made the order, at intervals of not more than 12 months for the duration of the order, a report containing –
(a)a statement of any treatment, therapy or counselling that the person has undergone, or any services that the person has received, since the making of the order or the last report; and
(b)any changes to the prognosis of the person’s condition or the person’s behavioural problems and the plan for managing the condition or problems.
8 I received the following reports for the purpose of assisting me to undertake the review and application for revocation:
(i)Report dated 14 February 2018 by Mr Salter’s supervising psychiatrist (the supervising psychiatrist’s first report) with the non-custodial supervision order Program at the Community Forensic Mental Health Service.[3]
(ii)Report dated 16 February 2018 by Mr Salter’s clinical psychologist and key clinician (the key clinician) at Mr Salter’s Area Mental Health Service.[4]
(iii)Report dated 16 February 2018 by Mr Salter’s consultant psychiatrist (the consultant psychiatrist) at Mr Salter’s Area Mental Health Service.[5]
(iv)A Relapse Prevention Plan dated 13 March 2018 by the key clinician and the consultant psychiatrist.[6]
(v)An affidavit dated 16 March 2018 made by Jacob Salter.
(vi)A statutory declaration made 16 March 2018 by Mr Salter’s mother.
[3]Exhibit A.
[4]Exhibit D
[5]Exhibit B.
[6]Exhibit C.
9 An affidavit by Louise Wilkinson made 13 March 2018 was filed by the Office of Public Prosecutions. I am satisfied that the Director of Public Prosecutions has given the notices required by s.38C of the Act.
10 The supervising psychiatrist, consultant psychiatrist and key clinician were called to give oral evidence.
11 Section 39 of the Act provides that in deciding whether to make, vary or revoke an order under the 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.
12 Section 40(1) of the Act lists the matters to which the court must have regard in deciding whether or not to revoke a NCSO. These matters include the nature of the person’s mental impairment,[7] the relationship between the impairment and the offending conduct,[8] whether the person would, if released, be likely to endanger themselves or other people because of his mental impairment,[9] the need to protect people from such danger,[10] whether adequate resources are available for the treatment and support of a person in the community,[11] and any other matters the court thinks relevant.[12]
[7] Section 40(1)(a) of the Act.
[8] Section 40(1)(b) of the Act.
[9] Section 40(1)(c) of the Act.
[10] Section 40(1)(d) of the Act.
[11] Section 40(1)(e) of the Act.
[12] Section 40(1)(f) of the Act.
13 Section 40(2) of the Act provides that the court cannot order a person to be released unconditionally 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.
14 The consultant psychiatrist gave oral evidence. He is Mr Salter’s treating psychiatrist. He also oversees Mr Salter’s care treatment by his case manager and the treating psychiatric registrar. The consultant psychiatrist sees Mr Salter once in three months, and if required, sees him earlier than that.[13]
[13] Transcript pp 39-40.
15 Mr Salter’s current treatment is outlined in the consultant psychiatrist’s report.
Mr Salter has consistently attended his appointments every four weeks to receive monthly long-acting depot injections of the antipsychotic medication Aripiprazole 400mg. He complied with the prescription of oral sodium valproate tablets with evidence of a satisfactory therapeutic serum level. The treatment team have determined to gradually reduce the dose of sodium valproate in the absence of clear mood symptoms or impulsivity. The dose of sodium valproate has gradually reduced from 1200 mg to 700 mg over the past three months without evidence of relapse.[14]
[14] Exhibit B.
16 The consultant psychiatrist said that the NCSO treating team decided to slowly wean Mr Salter from the sodium valproate while closely monitoring his mood and symptoms. I accept the consultant psychiatrist’s evidence that this process of reducing the valproate will take at least six more months from the date of review. The consultant psychiatrist said that “whenever we make some changes to medication there is always a risk of relapse and we are very mindful about that risk and that is why we closely monitor his current mental state”. The consultant psychiatrist agreed that Mr Salter currently requires and will continue to require a significant level of monitoring from the area mental health service.[15]
[15] Transcript pp 46-47.
17 In relation to the risk to himself and the community, the consultant psychiatrist stated in his report:
Mr Salter’s risk to himself and the community is currently low due to good compliance with the prescribed medication and abstinence from illicit substance use. He denies current thoughts of harming himself or others. He remains subject to a chronic risk of relapse in the event of poor adherence to medications and any resumptions of the use of illicit substances. [16](emphasis mine)
[16] Exhibit B
18 The consultant psychiatrist stated that at the moment Mr Salter has been compliant with the medication and he is doing his urine and drug screening almost monthly.[17] The consultant psychiatrist agreed in cross-examination that the NCSO order is relevant to his treatment of Mr Salter.
[17] Transcript p 44.
19 When cross-examined the consultant psychiatrist stated that the NCSO is one of the protective factors in Mr Salter’s treatment.[18]
[18] Transcript p 51.
20 The consultant psychiatrist stated that in the event that the NCSO were revoked, Mr Salter would be in a position to make an informed choice to pursue treatment either from a GP or a private psychiatrist. In that context, Mr Salter could choose to be discharged from his Area Mental Health Service.[19] The consultant psychiatrist stated that “we organised him [Mr Salter] to engage with an employment consultant for the last two years and we provided that opportunity and it seems he is not that proactively engaged with the employment consultant to find his – for further employment, training or looking for work. And it’s given me some – some sort of hint …whether he’s going to be engaged with his treatment team as well”.[20]
[19] Exhibit B, paragraph 6.
[20] Transcript p 60.
21 When asked whether he had any reason to doubt whether Mr Salter would continue treatment with the area mental health service, the consultant psychiatrist said that he had significant reason to doubt the evidence in Mr Salter’s affidavit that Mr Salter plans to continue with treatment.[21] The consultant psychiatrist stated that his major concern was the risk of relapse if Mr Salter started to use substances again.[22] The consultant psychiatrist stated that “Under the Mental Health Act… we cannot force him to remain abstinent from using substances and engage with drug and alcohol services.”[23]
[21] Transcript p 63.
[22] Transcript p 64.
[23] Transcript p 67.
22 Mr Salter’s key clinician is his primary case manager at his Area Mental Health Service. She coordinates Mr Salter’s care within the service. She said that Mr Salter has some chronic risk factors due to his history of a major mental illness, schizophrenia, history of substance use and a history of acting on paranoid thoughts when he was unwell.[24]
[24] Transcript p 84.
23 When cross-examined, the key clinician stated that Mr Salter undergoes regular urinary drug screens on approximately a monthly basis. She said that it is not really likely that this would continue without the NCSO.[25] The key clinician stated that the urinary drug screens are the only objective measure of whether or not Mr Salter is taking drugs.[26]
[25] Transcript p 85.
[26] Transcript pp 86-87.
24
Mr Salter’s supervising psychiatrist works within the NCSO Program at the Community Forensic Mental Health Service. She has supervised
Mr Salter since April 2014. The supervising psychiatrist stated that it is her role, under the NCSO, to ensure that Mr Salter’s risk to the community remains minimised. She does that with regular three-monthly reviews at the Community Forensic Mental Health Service and continued ongoing liaison with the area mental health service.[27]
[27] Transcript p 10.
25 In her first report, the supervising psychiatrist stated:
101. Mr Salter now presents with a documented history of abstinence from illicit drug use from September 2015, with this time period supported by urine drug screens taken over that time. He has now not experienced any psychotic symptoms for more than two years. He is treated with an injected antipsychotic medication that is not associated with a significant side effect burden, and Mr Salter is stating a willingness to accept treatment with this medication.
102. Mr Salter describes a positive engagement with his treatment team, and has received support from them through a number of personal crises over recent years. He is also now having regular contact with his brother, and making plans for his future that include ongoing contact with his brother.
103. Thus far Mr Salter has made limited progress in terms of socio occupational rehabilitation. He remains highly dependent on his mother, and Mrs Salter has remained somewhat unpredictable as a support for Mr Salter.
104. I am reassured, however, about Mr Salter’s commitment to ongoing care, and the stability of his mental state over the recent two years. His relationship with his mother and his ongoing attempts to secure a romantic relationship may place him at risk of future crises, but I believe that there are appropriate supports in place to assist him to cope with these crises, and that he has demonstrated the ability to access these supports.
105. I also believe that Mr Salter is unlikely to return to substance use after this sustained period of abstinence, and the insight that he states that it will produce a relapse of his illness. I note that Mr Salter’s mother has sought contact with his mental health service when concerned about his mental state, and I believe that this is also protective.
106. In this context, I believe that Mr Salter’s risk to others is currently low. For this risk to increase to moderate he would have to cease treatment with antipsychotic medication, or resume illicit drug use. He is stating a commitment to remain well, and expressing insight into the risks associated with relapse. I consequently believe that it is unlikely that his risk to others will increase and that if his risk did increase, it could be recognised by his treating service, and contained under the Mental Health Act.
107. I therefore support revocation of the Non-Custodial Supervision Order. (emphasis mine)
26 When cross-examined the supervising psychiatrist agreed that the NCSO provides compulsion to accept treatment.[28]
[28] Transcript p 21.
27 Counsel for the Secretary to the Department of Health and Human Services, Ms Frawley, submitted that the NCSO should be revoked having regard to the factors set out in s.40 of the Act and the principle of least restriction which is articulated in s.39 of the Act. She referred to the decision in Nom v Director of Public Prosecutions[29] (Nom) that no party bears the onus of proof in an application to revoke a NCSO. Ms Frawley submitted that the supervising psychiatrist’s evidence that the risk of Mr Salter taking drugs is low is a key consideration.[30]
[29] (2012) 38 VR 618, [72].
[30] Transcript p 101.
28
Counsel for Mr Salter, Ms Delaney, referred to paragraph 59 in Nom.
Ms Delaney submitted that the Court of Appeal articulated that the mere possibility of endangerment posed to the community by the applicant in the event of non-compliance is not enough to justify continuation of an order. The relevant test is likelihood. Ms Delaney submitted that this is a case where the NCSO is not necessary to prevent that risk. Ms Delaney submitted that both doctors gave evidence that Mr Salter has insight into the need to abstain from illicit substance use.[31] Ms Delaney’s primary submission is that Mr Salter is likely to continue to comply with treatment and likely to continue to abstain from illicit substances.[32]
[31] Transcript p 120.
[32] Transcript p 121.
29
Counsel for the Attorney-General, Ms Haban-Beer, submitted that the
non-custodial supervision order ought to be confirmed for the following reasons:
(1) Mr Salter has been on the NCSO for four years and within the period of that supervision order, Mr Salter has had significant stressors including a relapse into drug use and a fractured relationship with his mother, his main support.
(2) The evidence of the supervising psychiatrist and the consultant psychiatrist was not on all fours with each other. The consultant psychiatrist’s evidence was that the NCSO did provide a protective factor. The evidence of the key clinician was that she was unsure that Mr Salter was really aware of what the implications of not being on the NCSO were.[33]
[33] Transcript pp 107-108.
30 Ms Haban-Beer referred to the following passages in the decision of the Court of Appeal in Fowler (a Pseudonym) v Secretary to the Department of Health and others:[34]:
…the fact that a person has successfully received and been managed for a sustained period of treatment under the MHA [Mental Health Act] does not necessarily provide grounds for the removal of an NCSO. Where coercive treatment continues to be required, the NCSO may take on more importance.
Each application for revocation should, of course, be evaluated on its own merits in accordance with the criteria set out in s.40(1) of the CMIA. One consideration will be the fact that the person is subject to a treatment order under the MHA. But management of the person’s and the community’s safety from day to day by a treatment order under the MHA does not mean that an NCSO should not be retained. Whether the additional protections provided for under the NCSO regime are necessary will depend upon the circumstances of the particular case. (citations omitted) (emphasis mine)
[34] (2014) 43 VR 530,[27]-[28].
31 Ms Haban-Beer submitted that the controversial issue in this case was the urine drug screens. The evidence was that it is possible that a urine drug screen could be ordered by the area mental health service but it is typically not done. The NCSO contains the following conditions:
2(d)That Mr Salter comply with treatment, testing and attend appointments as directed by the authorised psychiatrist of VIFMH or his/her delegate;
2(e)That Mr Salter abstain from the use of excess alcohol and from use of illicit drugs. (emphasis mine)
32 Ms Haban-Beer submitted that the urinalysis drug screens have provided an objective mechanism for Mr Salter’s use of drugs to be monitored. The fact of the screens might be an encouragement for Mr Salter to remain abstinent from illicit substances.
33 Ms Haban-Beer further submitted that another matter of concern in relation to risk is the fact that Mr Salter’s medication regime is not stable. The treating team is in the process of reducing the mood stabiliser, sodium valproate, and Mr Salter is in the process of being continually and closely monitored in relation to his depot medication. Mr Salter’s medication is a key component in maintaining Mr Salter’s stable mental state. The fact that there is alteration to that medication is an issue which is relevant to the risk.
34 Ms Haban-Beer submitted that taking into account the factors set out in s.40 of the Act, there is a real risk of harm to the community and to Mr Salter himself. Ms Haban-Beer submitted that in those circumstances the NCSO should be confirmed.
35 On 18 April 2018 the Secretary to the Department of Health and Human Services filed a supplementary report by the supervising psychiatrist (the supervising psychiatrist’s supplementary report).
36 The supervising psychiatrist’s supplementary report indicated that Mr Salter’s social situation is by no means stable. There has been a renewal of the conflict between Mr Salter, his brother and his mother. Mr Salter said that his brother and girlfriend were attempting to “brainwash” him against his mother.
37 While the supervising psychiatrist had previously supported Mr Salter’s application for revocation of his NCSO[35], the supervising psychiatrist has changed her mind. The circumstances giving rise to the supervising psychiatrist withdrawing her support for the application are set out in the supervising psychiatrist supplementary report, which states:
[35] Exhibit A.
5. …a urine drug screen taken on 29 March 2018 was inconclusive consequent to very low creatinine levels (1.7mmol/Litre). On 9 April 2018 the NCSO Team contacted Mr Salter’s treating team and requested that a repeat urine drug screen be obtained.
6. A repeat urine drug screen from 9 April 2018 was received by the NCSO Team on 11 April 2018 and was also inconclusive consequent to low creatinine. The creatinine of this specimen was 1.4mmol/Litre.
7. Over the course of the 11 April 2018, the NCSO Coordinator… and myself attempted to contact Mr Salter on three different mobile phone numbers and his home landline.
8. On 11 April 2018 I contacted… Forensicare’s legal counsel, and asked that Her Honour’s Associate be alerted to the presence of two diluted urine specimens.
9. On 12 April 2018 [the] NCSO coordinator… contacted Mr Salter by phone. Mr Salter stated that he had consumed large quantities of water before providing urine drug screens because he was taking a multivitamin. Mr Salter stated that he had changed his mobile number to a new one on the previous week. Mr Salter was informed of the need to attend a supervision review on 18 April 2018, and to provide a urine drug screen immediately. He was told not to dilute this specimen.
10. On 12 April 2018 Mr Salter’s key clinician contacted Mr Salter and asked him to submit a urine drug screen immediately. He undertook to do so.
11.Mr Salter did not submit a urine drug screen on 12 April 2018.
12. On 16 April 2018 Mr Salter contacted myself to inform me that he had provided a urine specimen on 16 April 2018. He sounded disinhibited on the phone, and his mother was screaming directions in the background for what Mr Salter was to say to me on the phone.
Mr Salter stated that he had had to change his mobile phone number because he “smashed” his old phone after a fight with his brother. I reminded Mr Salter that we had previously talked with him about the need to confirm any changes of contact number with the NCSO Team. I terminated the phone conversation due to Mrs Salter’s screaming. He indicated plans to attend his appointment on 18 April 2018.
13. The urine drug screen from 16 April 2018 was positive for sympathomimetic amines, with a level of 300ug/Litre.
14. Mr Salter attended his appointment almost an hour early, having been driven by his mother.
15. He initially stated that he had not used any illicit drugs. He suggested that his urine drug screen was diluted because he was prescribed an antibiotic for lesions on his “private parts”. When I asked how long he had been prescribed this antibiotic, Mr Salter stated “four months”. I noted that it had not caused earlier urine drug screens to be abnormal.
16. Mr Salter then stated that he had been in a car with some old friends from Springvale, and that they had been smoking ICE in this car. He stated that his previous drug and alcohol counsellor had informed him that this could cause a positive urine drug screen. I noted that the level detected was 300ug/Litre, and asked Mr Salter when this had occurred. He stated that it had been nine days earlier. I suggested that this seemed improbable. At this stage Mr Salter stated “I didn’t smoke it, I did lick the bag”.
17. I expressed some degree of disbelief at this statement. Mr Salter then acknowledged that he had smoked ICE, but said that he had only smoked one point. He stated “I tried to hide it from you guys”.
18. Mr Salter also acknowledged contacting a previous girlfriend, who he had obtained stimulant diet pills from. He stated that over coffee she gave him “one tablet” but also seemed aware that she had “a whole script”. Mr Salter stated that this occurred two days after his previous Court appearance. Mr Salter was aware that he was not supposed to be using stimulants of any form, and that I had previously directed him to not take further stimulant diet tablets.
19. Mr Salter gave an inconsistent history about when he had last had contact with Bella.
38 In oral evidence the supervising psychiatrist said that Mr Salter describes his relationship with his former girlfriend Bella Mort[36] as a friendship. However Mr Salter also told her that in the past 18 months there have been attempts between Ms Mort and Mr Salter to have a baby.[37]
[36] Bella Mort is a pseudonym.
[37] Transcript pp 25-26.
39 In the addendum report the supervising psychiatrist stated that, in her opinion, the NCSO should not be revoked for the following reasons:
28. Having presented with a documented history of abstinence from illicit drug use from September 2015, Mr Salter now appears to have had a relapse of his substance use. His substance use occurs in the context of two significant factors.
29. Firstly, there is now a history of further conflict between Mr Salter’s brother and his mother. Mr Salter continues to describe an extremely enmeshed relationship with his mother, and his levels of engagement in her conflict with his brother. This is a potential stressor. Mr Salter’s extreme enmeshment with his mother is continuing to hinder his own development, and progression of employment goals, for example. In this way, the relationship prevents development of protective factors, in addition to acting as a stressor.
30. Additionally, Mr Salter’s sodium valproate level is now sub therapeutic. It is difficult to establish at this time whether Mr Salter’s current presentation of irritability and disinhibition are due to emerging mania, or consequent to stimulant abuse alone.
31. Finally, Mr Salter appears to have used stimulants in the form of prescription weight loss tablets, two days after the most [recent} Court appearance. This suggests that the NCSO was performing some function in terms of inhibiting Mr Salter’s ongoing substance use.
32. I consequently no longer believe that Mr Salter’s risk to the community is minimised without the NCSO. I believe that he requires further supervision under the NCSO with the expectation that he will progress his recovery further before the risk to the community is minimised.
40 On 10 May 2018 the Secretary of the Department of Health and Human Services revisited their submission regarding Mr Salter’s application, in light of the information contained in the Addendum Report. The Secretary submitted that Mr Salter’s NCSO should be confirmed.
41
The addendum report was forwarded to the applicant and counsel for
Mr Salter was invited to make further submissions. The following further submissions were filed on behalf of the applicant.
(1) In relation to the matters raised in [the] report of 18 April,
Mr Salter instructs that he realises that he made a big mistake using ice. He said he was hanging around with the wrong people. He said he will stop seeing those people.
(2) He instructs he obtained the diet pills referred in that report from an
ex-girlfriend. He said it was not his ex-partner Bella, referred to at paragraph 19 of [the] report. Mr Salter instructs he has resumed contact with Bella as he considers her a good influence in that she does not use drugs.
(3) Mr Salter instructs he saw a job counsellor on 1 May and has purchased a new computer to assist with seeking work. He plans to continue seeing the job counsellor fortnightly initially then monthly.
(4) His treating team have recommended he see a psychologist to help deal with his difficult family dynamics and Mr Salter instructs he is keen to do that.
(5) In light of his drug use, though he instructs it was an isolated incident that will not be repeated, Mr Salter understands that his case for revocation of the NCSO at this point may have been weakened.
42 Having considered the whole of the evidence, the submissions made by counsel and having regard to each of the matters referred to in ss.39 and 40(1) of the Act, I dismiss Mr Salter’s application for a revocation of the NCSO. The Court orders that the NCSO made 14 February 2014, be confirmed pursuant to s.33(1)(a) of the Act.
43 The applicant submitted that a further review pursuant to s.33(2) of the Act should occur in 12 months. Having considered the whole of the evidence and the circumstances of this case which include the nature of Mr Salter’s mental impairment and the need to protect Mr Salter from endangering himself or other people generally, in my view it is not appropriate to order that the matter be listed for a further review in 12 months' time.
44 Pursuant to s.33(2) of the Act, I direct that the matter be listed for further review on 7 December 2020.
45 Subject to any further submissions by counsel in relation to the terms of the order, I propose to order:
1. That the non-Custodial supervision order in respect of Jacob Salter made on 14 February 2014 be confirmed pursuant to s.33(1)(a) of the Act.
2. The following conditions in respect of Jacob Salter apply to the supervision order:
(a) That Mr Salter be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his/her delegate;
(b) That Mr Salter reside at an address as agreed by the authorised psychiatrist of VIFMH or his/her delegate;
(c) That Mr Salter abide by the lawful directions of the authorised psychiatrist of VIFMH or his/her delegate or nominee;
(d) That Mr Salter comply with treatment, testing and attend appointments as directed by the authorised psychiatrist of VIFMH or his/her nominee;
(e) That Mr Salter abstain from the use of excess alcohol and from use of illicit drugs;
(f) That Mr Salter is not to leave the State of Victoria without written permission of the authorised psychiatrist of VIFMH or his/her delegate.
3. Pursuant to s.27 of the Act, the Supervision Order is for an indefinite term.
4. Pursuant to s.28 of the Act, the nominal term of the Supervision Order will be 20 years from 14 February 2014.
5. I direct, pursuant to s.33(2) of the Act, that the matter be brought before the Court for review on 7 December 2020.
6. I direct that the Secretary of the Department of Health and Human Services arrange for the preparation and filing with the Court at intervals of not more than 12 months for the duration of the order, a report containing the matters required by s.41(3) of the Act.
7.
I direct that a copy of this order and a transcript of the proceedings of
19 March 2018 be made available to the Victorian Institute of Forensic Mental Health or his/her delegate.
Application for a Suppression Order under s.75 of the Act
46 Mr Salter’s solicitor, Ms Delaney, made an oral application during the hearing for a suppression order under s.75 of the Act.
47 Section 75 of the Act provides:
75 Suppression orders
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.
3) A person must not publish or cause to be published any material in contravention of an order under this section.
Penalty: 500 penalty units in the case of a body corporate;
120 penalty units or imprisonment for 1 year in any other case.
48 Ms Delaney referred to an Order made by the Supreme Court of Victoria and dated 16 September 2010 and indicated to the Court that the terms expressed in the past Order should be applied in this matter. Order 4 of this document provided that:
Pursuant to s.75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, until further order, no person shall publish or cause to be published or broadcast by means of radio, television or by other means:
(1)Any matter which might directly or indirectly enable identification of the person subject of these proceedings or his place of residence.
(2)Any matter which might directly or indirectly enable identification of only the victim relevant to the proceedings or his or her place of residence.
(3)Any matter which might directly or indirectly enable identification of a family member of the person the subject of these proceedings or his or her place of residence.
49 The application for a suppression order was made on the basis that the order would be “in the interests of the ongoing stability of Mr Salter’s mental health and his continuing rehabilitation”.[38] Ms Delaney proposed to call evidence from the supervising psychiatrist that “any identification of… Mr Salter and generally people in his position has the potential to destabilise his mental health or interfere with their rehabilitation”.[39] The supervising psychiatrist later gave evidence that “if Mr Salter were to be identified in the media, this could, because of the stigma of his mental illness and his offending, make him more reluctant to participate in programs that involved potential recovery focus” and that this could “hamper Mr Salter’s engagement in treatment and confer an indirect potential increase of risk to others.”[40]
[38] Transcript p 3.
[39] Transcript p 4.
[40] Transcript pp 34 – 35.
50 Counsel for the Department of Health and Human Services did not oppose the application.[41]
[41] Transcript p 140.
51 Counsel for the Attorney-General, Ms Haban-Beer, submitted that while the Attorney-General does not generally make submissions with regard to suppression orders, the supervising psychiatrist and the other witnesses called during the hearing had not given “evidence that would amount to satisfying the court that it would be injurious to the public interest” for a suppression order not to be made.[42] I accept that submission.
[42] Transcript p 137.
52 The public interest is generally skewed in favour of transparency in judicial purposes, and, as remarked by Kellam J, “the inappropriate use of suppression orders has the potential to jeopardise both the fact and the perception of the transparency, and the justice of processes in these courts”.[43] The Act, as noted by Hollingworth J, “seeks to strike a balance between protecting the community, and advancing the needs of offenders who suffer from a mental illness.”[44] Court processes being shielded from the public may corrupt the administration of justice.[45]
[43]IMO Derek Percy [2004] VSC 67, [36].
[44] In the matter of an application under s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by Sestilio Tiziano Cavallari [2016] VSC 478, [20].
[45]IMO Derek Percy [2004] VSC 67, [37].
53 While s.75 suppression orders are not governed by the provisions of the Open Courts Act 2013, the public interest in open justice is maintained in the Act by s75(1). I agree with Judge Cohen’s observation that “the Victorian parliament has made clear through that Act [the Open Courts Act 2013] that courts considering making suppression orders should closely scrutinise whether an order is required, and if it is, limit its operation as much as possible.”[46] Each application must be considered within the context of the matter in relation to which it is made.[47]
[46]Pelley (a pseudonym) v DPP & Ors [2016] VCC 1804, [32].
[47] In the matter of an application under s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by Sestilio Tiziano Cavallari [2016] VSC 478, [19].
54 Ms Haban-Beer submitted that the application did not seem to be for a suppression order as much as “just de-identification of Mr Salter and any identifying information that might enable him to be identified.”[48] Ms Haban-Beer submitted that a pseudonym order would be more appropriate as that would serve the purpose of de-identifying Mr Salter.[49] When the Court suggested that the judgment instead be restricted, Ms Haban-Beer submitted that would be “going a step too far because in fact there might be a public interest in having issues of mental impairment ventilated in the community”.[50]
[48] Transcript pp 136 – 137.
[49] Transcript p 137.
[50] Transcript p 137.
55 Ms Delaney expressed concern about the use of a pseudonym, submitting that such an order “doesn’t have the clarity that a s.75 order has to members of the public and in particular media organisations”.[51] Ms Delaney submitted that a pseudonym would not prevent identification “based on material that is accessible from the past”[52] such as material “already on the internet”,[53] which a suppression order would do. Ms Delaney also indicated that it would be preferable for the judgment to be restricted.[54]
[51] Transcript p 138.
[52] Transcript p 139.
[53] Transcript p 138.
[54] Transcript p 139.
56 Ms Delaney’s concerns appeared to arise from what she referred to as the “stigmatising, sensationalist”[55] reporting engaged in by some publications, which has resulted in at least one campaign where a newspaper “ran information about forensic patients getting their disability support pension… under the Social Security Act, and they identified half a dozen forensic patients, some of whom weren’t even in the category they were complaining about”.[56]
[55] Transcript p 135.
[56] Transcript p 136.
57 In IMO Derek Percy,[57] Kellam J considered similar submissions regarding the alleged sensationalist tendencies of some publications. This was a matter that had been widely reported Australia-wide from when the offence was committed in 1969 up until the review in 2004, so there was no doubt as to whether there would be media reports following the review. His Honour stated:
First, of course, there is no reason to say that the public should be excluded from information of this nature merely because some members of the media may in the past have demonstrated a lack of understanding of the process in question or… failed to responsibly and accurately report what has occurred. There are many intelligent and responsible persons associated with the media who can be relied upon to provide accurate reporting of such matters and it should not be assumed that they will not do so.
Secondly, it should not be assumed that the public are not discerning about the media or that they do not scrutinise what is put before them.[58]
[57] [2004] VSC 67.
[58]IMO Derek Percy [2004] VSC 67, [51]-[52].
58 Judge Cohen considered a similar argument put before the Court in a prior matter. Her Honour found that “experience with a newspaper going back and reviewing cases and publishing details… does not in my view amount to evidence of how a public interest against publication is invoked.”[59] I agree with Her Honour and adopt the same reasoning.
[59]Pelley (a pseudonym) v DPP & Ors [2016] VCC 1804, [36].
59 Even if the media’s methods of reporting were of concern, it is unclear what previous material Ms Delaney is suggesting could be exploited by the media. The sentencing remarks and subsequent rulings in this matter, while they do identify Mr Salter, have all been marked restricted and have not been published. Agencies and individuals must therefore request permission to view these documents. Should a valid request be submitted, the documents could be varied retrospectively to anonymise their subject. The medical reports tendered in this matter also cannot be accessed without a request being made. Should this occur, the issue could be revisited. Ms Delaney did not provide any evidence of material currently available on the internet or elsewhere that identifies Mr Salter, his offending or the nature of his mental illness, nor of previous media reports identifying Mr Salter. Without such evidence, I cannot accept Ms Delaney’s submissions that a pseudonym order is not sufficient.
60 While I do accept the supervising psychiatrist’s evidence that identification of Mr Salter in the media could cause him some distress and threaten his mental stability through his being reluctant to consequently participate in recovery-focused programs, I believe that this risk can be minimised through the use of a pseudonym. This course will reduce the risk identified by the supervising psychiatrist by protecting Mr Salter’s identity while still enabling the decision to be published so that the public can have access to, and be informed about, the evidence upon which applications for revocation are decided.
61
I dismiss Mr Salter’s application for a suppression order. I order that
Mr Salter’s name be anonymised including any information that might enable him or members of his family or friends to be identified.
0
4
0