Re XY
[2018] VSC 456
•30 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2010 0109
S CI 2018 00076
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| - and - | |
| IN THE MATTER of an application for extended leave by “XY” | |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2018 | |
DATE OF DECISION: | 30 April 2018 | |
DATE OF PUBLICATION OF REASONS: | 17 August 2018 | |
CASE MAY BE CITED AS: | Re XY | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 456 | |
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CRIMINAL LAW – Application for extended leave – Applicant, in 2009, at age 20 and when psychiatrically unwell, killed elderly woman – Applicant found not guilty of murder because of mental impairment – Whether applicant or members of the public will not be seriously endangered if applicant granted extended leave – Two psychiatrists supportive of application – Application supported by Secretary to Department of Health and Human Services and Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 26, 28, 38C, 39, 40, 41, 47, 57, 57A, 75 & 76A.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Wilkinson | Office of Public Prosecutions |
| For the Applicant | Ms J. Taylor | Victoria Legal Aid |
| For the Secretary to Department of Health and Human Services | Ms E. Frawley | Department of Health and Human Services |
| For the Attorney-General | Ms A. Haban-Beer | Victorian Government Solicitor |
HIS HONOUR:
Overview
On 30 April 2018, I heard an application by “XY” for extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”).
In 2009, on a public street in a country town in Victoria, XY, who was then aged in her early-20s, stabbed “DC” with a knife to the neck and elsewhere. DC, a vision-impaired widow in her mid-60s who just happened to be walking her two small dogs in the area at the time, was a complete stranger to XY. After the stabbing, XY fled to her home nearby. While help was at hand promptly, sadly, DC could not be revived. She died then and there as a result of the wounds to her neck.
At the time of the killing, XY was in the grips of a psychotic episode. She was labouring under the delusional belief that she was under threat and that killing someone would lead to a cessation of her hallucinatory torment. XY’s psychosis was caused by paranoid schizophrenia, from which she had suffered since adolescence.
In 2010, at a ‘consent mental impairment hearing’ in this Court before Coghlan J, XY was found not guilty of murder by reason of mental impairment and placed on a custodial supervision order.
Pursuant to that order, and for about eight years, XY received treatment at Thomas Embling Hospital. The evidence is to the effect that her psychiatric illness is now controlled with anti-psychotic medication, that she has done well on the more limited forms of leave she has had, that there are satisfactory supports and supervision available in the community, and that it is now safe to allow her to return to the community on extended leave with conditions.
The application was supported by both the Secretary to Department of Health and Human Services (“the Secretary”) and the Attorney-General for Victoria (“the Attorney”). On the other hand, in their reports made pursuant to s 42 of the Act, members of DC’s family made clear their opposition to the application.
On the strength of the available evidence, and having heard the submissions of the parties, I was satisfied that the safety of XY or members of the public would not be seriously endangered as a result of XY’s being allowed extended leave on conditions proposed by psychiatrist Dr Shannon Reid. Accordingly, I granted the application and made an order for extended leave for 12 months, with such conditions.
On the same day, on the application of XY, I also ordered, pursuant to s 75 of the Act, that the publication of the following is prohibited:
a) the names and addresses, or former addresses, of the applicant, the deceased and their relatives; and
b) any information which might identify the names and addresses, or former addresses, of the applicant, the deceased and their relatives, except insofar as such information is contained in the written reasons for judgment of the Court on this application.
That order was supported by the Secretary and not opposed by the Attorney.
My more detailed reasons for these orders follow.
Background
I turn first to the background to this matter.
Early psychiatric history
XY grew up in a large family in country Victoria. She is now aged 32, single and has no children.
XY was first referred to mental health services by her mother in May 2002, at the age of 16. An assessment report noted that she was a heavy marijuana user and exposed to domestic violence and (possibly) sexual abuse.
Two months later, XY was again referred to mental health services following a drug overdose incident. Records showed that community psychiatric services attempted to follow up treatment but found XY reluctant to engage.
In September 2002, a further referral was made following reports of her throwing knives and other objects at her mother, expressing suicidal and homicidal thoughts, and not sleeping or eating. She was admitted as an inpatient to a psychiatric ward of a regional hospital.
After being discharged on 26 September 2002, XY was case managed by an area mental health service until 25 November 2003. There had been one documented disclosure of psychotic symptoms in February 2003. The possibility of early psychosis was raised and her symptoms were monitored but there was no further evidence of psychotic symptoms during this period. She was, however, diagnosed with severe depression and treated with antidepressant medication.
Although not formally diagnosed, XY also described symptoms consistent with bulimia in her mid-teens.
At the age of 19, XY reported psychotic phenomena such as auditory and tactile hallucinations, thought broadcasting, insertion and paranoia.
At the age of 22, XY was admitted again as an involuntary patient to a psychiatric ward of a regional hospital with symptoms of psychosis. She was discharged on 2 December 2008 after spending two months as an inpatient at the hospital. However, this discharge was short-lived and she was re-admitted on 18 December 2008 with prominent psychotic symptoms.
An assessment conducted by Forensicare at the time noted that the combination of impulsivity, emotional dysregulation and mental illness that was partially responsive to treatment posed at least a moderate risk of future violence. She was eventually discharged on a community treatment order (“CTO”) on 2 March 2009.
On 6 March 2009, XY was re-admitted to hospital following an incident when she held a knife to her mother’s throat. Her mother reported that XY had been drinking and possibly had consumed cannabis. It also appeared that she was non-compliant with her medication. She was charged and found guilty of assault, and was ultimately released on a good behaviour bond.
On 26 March 2009, XY was again discharged from the hospital on a CTO, and was treated with a depot anti-psychotic medication on a fortnightly basis. She remained under case management and the CTO until the index incident.
XY kills DC
XY lived in a small country town in Victoria, with her boyfriend and another friend. DC lived alone nearby. XY and DC were not known to each other.
On the morning of 27 November 2009, at about 10:00 a.m., as was her almost-daily routine, DC headed off from her home on a walk in the streets with her two little dogs. DC was a widow in her mid-60s. She walked with the aid of a cane because her sight was seriously impaired.
Earlier that morning, at about 9:00 a.m., XY and her boyfriend went to the main street to do some shopping. XY went by herself to a gift shop and told the proprietor that she wanted to buy a sharp knife. After examining a particular knife and running her thumb across the blade, she declared, “That’s not sharp.” Nevertheless, she bought the knife and declined an offer to have it gift-wrapped. After meeting up with her boyfriend and doing some shopping together, the two went home. Shortly afterwards, XY left the house.
At about 10:45 a.m., DC was found lying on the footpath of a street not far from her home and XY’s. She was bleeding heavily from a wound to her neck. XY had attacked DC with the knife she had bought earlier, stabbing her four times. There were two knife wounds to her neck, one to the right upper chest and one to her left hand, which was defensive in nature.
One neighbour heard a scream and, with other neighbours, went to DC’s aid. Emergency services attended but DC could not be saved. The wounds to her neck severed the carotid artery, which led to her death at the scene.
XY was seen leaving the scene. She went home, changed her clothes and then headed off to work for a few hours.
Three days later, on 30 November 2009, police arrested XY at her home. Clothes she wore during the attack were seized and tested, which revealed the presence of DC’s blood. A receipt for the purchase of the knife was found in XY’s purse.
The next day, XY was charged with murder and remanded in custody.
On 10 December 2009, XY was transferred from prison to Thomas Embling Hospital. She was returned to prison on 9 April 2010.
Trial, verdict and orders
After being committed for trial, XY appeared in this Court before Coghlan J on 22 July 2010 at what is sometimes called a ‘consent mental impairment hearing’.
Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of murder is determined by a jury. However, pursuant to the Act, if a person is charged with an indictable offence (such as murder) and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence would establish the defence of mental impairment,[1] the trial judge may hear that evidence and, if satisfied that it does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.
[1]See s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
When arraigned on the charge of murder, XY pleaded not guilty by reason of mental impairment.
Coghlan J then heard evidence from the police informant outlining the circumstances surrounding the killing.
He also received reports from two forensic psychiatrists – Dr Nina Zimmerman and Dr Danny Sullivan – both of whom had examined XY. Dr Zimmerman also gave viva voce evidence. XY told Dr Zimmerman that, on the day of the attack, she heard the voice of her mother’s ex-boyfriend saying goodbye to her and telling her that he would leave her alone if she killed another. While she denied any voices directly commanding her to kill, XY further stated that the voice of a male angel told her that angels would stop interfering with her body if she killed someone. She accepted that she bought the knife but did not tell her boyfriend about it. She did not know DC and had not planned to assault her prior to the attack with the knife. XY gave a broadly similar account to Dr Sullivan. Both psychiatrists were of the view that XY’s thoughts and experiences were consistent with earlier reports of previous psychotic symptoms, including persecutory delusions and auditory hallucinations. Both were also of the view that XY could not reason with a moderate degree of sense and composure about the wrongfulness of the attack on DC and that she believed, as a consequence of her psychotic illness, that the bodily interferences she was experiencing would cease if she killed someone.
Coghlan J also received in evidence a number of reports, made pursuant to s 42 of the Act, made by family members of DC.
Counsel for XY and counsel for the Director of Public Prosecutions (“the Director”) both submitted that the evidence showed that the defence of mental impairment was operative at the time of the killing. Coghlan J agreed. His Honour found XY not guilty of murder because of mental impairment[2] and declared her liable to supervision.[3]
[2]See ss 20(1)(b) and 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[3]See s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
The same day, having received the necessary certificate of available services,[4] Coghlan J then imposed a custodial supervision order on XY, with a nominal term of 25 years commencing 30 November 2009, and committed her to the custody of the Victorian Institute of Forensic Mental Health (“VIFMH”),[5] which meant the Thomas Embling Hospital.
Application for extended leave
[4]See ss 41 and 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[5]See ss 26(2)(a)(i) and 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Extended leave
Now, about eight-and-a-half years later, XY applies for extended leave.
“Extended leave” is leave for a “forensic patient” (which is XY’s classification while subject to a custodial supervision order) to be absent from her place of custody for a period, not exceeding 12 months, and subject to conditions fixed by the Court, if any.[6]
[6]See ss 3(1), 26 and 56 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Before extended leave is contemplated, forensic patients progress through graduated forms of leave, including on-ground leave (i.e. being absent from the hospital but within its surrounds) and limited off-ground leave (i.e. being absent from the hospital for limited periods, including overnight leave for up to three days in any seven-day period).[7] Applications for these categories of leave are determined by the Forensic Leave Panel.[8]
[7]See ss 48-55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[8]See ss 59-73 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Pursuant to s 54(2), the Panel may grant an application for such leave if satisfied that the proposed leave will contribute to the patient’s rehabilitation and the safety of the patient or members of the public will not be seriously endangered as a result of the patient’s being on leave.
Applications for extended leave, by way of contrast, are determined by the court which made the supervision order to which the particular forensic patient or forensic resident is subject.[9]
[9]See s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
The statutory test
Section 57(2) of the Act provides that a court may grant an application for extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant’s being allowed extended leave.
The notion of serious endangerment, which is employed in other provisions of the Act as well, requires consideration of, inter alia, both the level of risk that a harmful event might occur and the gravity of the harm that might be caused were the risk to materialize. Thus, a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[10]
[10]See In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70 (Eames J) at [56]; cited with approval in NOM v DPP & Ors [2012] VSCA 198 (Redlich and Harper JJA and Curtain AJA) at [63]. (See also NOM at [54]-[65] generally on the notions of endangerment and serious endangerment.)
In considering the test in s 57(2), the Court also must have regard to the matters set out in ss 39 and 40 of the Act. Section 39(1) provides as follows:
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) provides as follows:
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A 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.
In NOM,[11] the Court of Appeal said this of ss 39 and 40:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the [person’s] mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[12]
[11]NOM v DPP & Ors [2012] VSCA 198.
[12]NOM v DPP & Ors [2012] VSCA 198 at [47] (footnotes omitted).
No burden of proof; but Briginshaw gloss applicable
Also in NOM,[13] when dealing with an appeal against a refusal of an application to revoke a non-custodial supervision order, the Court of Appeal held that no party bears an evidential or legal onus of proof on such an application but that the court should make its decision applying the civil standard of proof subject to the gloss in Briginshaw v Briginshaw.[14] All counsel in the present case accepted that the same principles apply to an application for extended leave. I accept those submissions and have approached the matter by applying those principles.
[13]NOM v DPP & Ors [2012] VSCA 198 at [72]-[124].
[14]Briginshaw v Briginshaw (1938) 60 CLR 336.
Notification of, and reports from, XY and DC’s family members
At the outset of the application, Ms Wilkinson, who appeared on behalf of the Director, read an affidavit which explained that written notice of the application had been given to both XY and DC’s family members, in accordance with s 38C of the Act.
Ms Wilkinson also tendered five reports from members of DC’s family and one from XY’s mother, pursuant to s 42 of the Act.
In accordance with the practice on applications of this type, Ms Wilkinson was then excused, such that the Director took no further part in the hearing.
Sources of evidence
On the hearing of the application, I received evidence from the following sources:
First, in accordance with a direction given pursuant to s 76A(2) of the Act, the Director filed a summary of proceedings and facts to which various documents were annexed, including the indictment, transcript of the proceedings before Coghlan J, parts of the depositions and the reports of Dr Zimmerman and Dr Sullivan.
Secondly, the Secretary filed a helpful chronology.
Thirdly, I also received the separate reports of, and heard viva voce evidence from, psychiatrists Dr Shannon Reid and Dr Meredith Gray and XY’s case manager Thelma Lynch.
Fourthly, there were the reports of DC’s family and of XY’s mother.
I now turn to the latter two categories of evidence.
Dr Reid
Dr Reid: Dr Reid is a consultant forensic psychiatrist employed by VIFMH, which is also known as Forensicare. He has been involved in XY’s care on the Jardine Unit of Thomas Embling Hospital between March and August 2016. Upon a grant of extended leave, Dr Reid would adopt the role of psychiatrist responsible for XY’s treatment and supervision as part of his role on the Community Integration Team at the Community Forensic Mental Health Service. For the purposes of this application, he reviewed XY on eleven occasions between August 2017 and April 2018.
Substance use history: XY used cannabis from an early age but ceased at 17. She began to drink alcohol at 18. She has reported using ecstasy and amphetamines on only a few occasions. She maintains that she had ceased using illicit drugs well before the killing of DC.
No violent incidents: Dr Reid understands that there have been no incidents involving violence or aggression to others and no occasion of deliberate self-harm during her admission to Thomas Embling Hospital.
Use of leave: During her time on the Jardine Unit, XY successfully utilised three nights per week of overnight leave.
Treatment: After a period of stabilisation of treatment, XY’s experience of acute psychosis essentially ceased aside from hallucinations of “clicking” noises. Some minimally interfering hallucinations were present in 2015 but full resolution of psychosis has been noted since 2016.
Her medication was altered early in her treatment to Clozapine, which is now at a daily dose of 500 mg. XY accepts that the medication assists in controlling her mental state.
After an initial reluctance to engage in group psychological work, by 2014 she was working well in individual psychological work and she was better able to tolerate discussion of difficult material. By 2015 and thereafter, she was able to undertake work focusing on issues related to offending and violence, which XY regards as a source of pride. On the other hand, XY’s level of engagement in discussing her history has fluctuated.
Potential employment: In 2016, XY completed a course in makeup artistry. In 2017 and 2018, she expressed interest in involvement in traffic management work. By the time of the hearing, XY had been interviewed for a job in traffic management but the outcome of the application was pending.
Interaction with staff and patients: XY has a variable level of comfort with some parts of her own history and discussion of these areas sometimes causes her a degree of agitation. That said, she accepts that, with new practitioners, there is a need to discuss matters raised previously with others and that, at times, difficult topics must be confronted.
Family integration and social support: XY speaks to her mother, who lives interstate, each day by telephone. XY is hopeful of visiting her mother if granted extended leave and perhaps ultimately of living with her, although that may be difficult given the nature of the order to which she is subject. XY also maintains contact with her father and his new partner, and also one of her siblings (who also lives interstate).
Professional supports: If released on extended leave, XY will have professional supports in the community, including a general practitioner and a support co-ordinator through the “MeWell” support service.
Early warning signs: In Dr Reid’s view, XY has been able to describe some of the signs that may provide an early warning of relapse of acute psychosis.
Plans for the next 12 months: If granted leave, XY’s plans for the next twelve months are to commence living at the Austin Community Recovery Programme (“CRP”) on a full-time basis, during which time she would continue to work on living skills that would enable her to live in the community in an independent setting. Her anti-psychotic medication would be prescribed through the Austin CRP and she would receive intermittent review by a psychiatrist or a psychiatry registrar. She would also have fortnightly contact with a psychiatrist or psychiatry registrar from the Community Transition and Treatment team (“CTT”) interleaved with fortnightly contact with a CTT clinician, such that she would have approximately weekly contact with a CTT member, at least in the early stages of leave.
Current mental state: As for XY’s current mental state, Dr Reid opines that, when discussing difficult issues, she maintains a friendly demeanour but there is some evidence of intermittent anxiety and anger. There is, however, no evidence of the presence of delusional ideas and there have been no recent thoughts of self-harm or harm to others. There are no apparent perceptual abnormalities. In Dr Reid’s view, XY demonstrates relatively good insight regarding her illness and its treatment.
Risk assessment: In Dr Reid’s view, overall, the risk of harm associated with XY is low. This assessment assumes that XY will be staying full-time at the Austin CRP, where she will receive treatment from the clinical team and be under the supervision of Forensicare.
Opinion and recommendations: Dr Reid’s hope is that ongoing development of familiarity with the CTT team will increase XY’s comfort in engaging in clinical discussion. He recommends that XY have an increased level of rehabilitation activity in the community but adds that there is no evidence that she would be exposed to considerable stress if she retained her current level of activity. In his view, the risk of harm is low and at an acceptable level. That risk assessment would need to be re-evaluated should different accommodation plans arise at the end of the proposed period of twelve months of extended leave.
In those circumstances, Dr Reid was supportive of the application for extended leave.
Proposed leave plan: Dr Reid suggested that the following conditions should apply if XY were to be granted extended leave:
1) That XY be under the supervision of the authorized psychiatrist of the … VIFMH or his or her delegate.
2) That XY reside at a location approved by the authorized psychiatrist of the VIFMH or his or her delegate.
3) That XY abide by the lawful directions of the authorized psychiatrist of the VIFMH or his or her delegate
4) That XY comply with treatment and testing and attend appointments as directed by the authorized psychiatrist of the VIFMH or his or her delegate
5) That XY abstain from the abuse of alcohol and from use of illicit drugs.
6) That XY not leave Victoria without written permission of the authorized psychiatrist of the VIFMH or his or her delegate.
Suppression order: When asked about the benefit of a suppression order in this matter, Dr Reid gave the following answer:
I feel … that it’s clearly beneficial. We’re in a position where it is important from a recovery and risk management perspective for [XY] to be able to reintegrate with the community smoothly and doing so will involve her seeking connection with community groups, developing employment and other community connections that could be adversely affected if there was publicity around her offence and her health.
Dr Gray
Dr Gray: Dr Gray is an advanced trainee in psychiatry based at the Jardine Unit of Thomas Embling Hospital. She was XY’s treating psychiatric registrar from February 2018.
Opinion: Dr Gray reached essentially the same conclusions as reached by Dr Reid, including as to the importance of a suppression order to XY’s rehabilitation. In short, Dr Gray opined that XY’s overall risk of violence in the community is low. In those circumstances, she too supported the application for extended leave.
Ms Lynch
Ms Lynch: Ms Lynch is XY’s CTT programme mental health case manager. She is a senior social worker employed by the VIFMH.
Opinion: Based on all the available information and the management plan in place to supervise and monitor XY effectively, Ms Lynch also supported the application for extended leave.
DC’s family
DC’s family consider that released on extended leave after only eight-and-a-half years is simply too soon. Further, they are concerned that, if granted extended leave, XY might kill another person. One member of the family submitted that, if XY is to be released on extended leave, she should not be released into the town where the killing occurred; there should be daily reporting; and the area of release should have adequate mental health supports, such as the city.
XY’s mother
XY’s mother says that, since her daughter has been receiving treatment at Thomas Embling Hospital and a different medication, her mental health has improved “monumentally”. To her, XY appears to be happy and motivated. She would like her daughter to come and stay with her and her partner (they live interstate) and then eventually live with them.
Submissions of the parties
Ms Frawley, counsel for the Secretary, advised that her client supported the application for extended leave, for the full period of 12 months, and submitted that I should include as conditions on that leave the matters set out in the leave plan suggested by Dr Reid. In particular, by reference to ss 39 and 40 of the Act, and allowing for the concerns expressed by DC’s family members in their reports, it was submitted that the minimum restrictions consistent with the safety of the community in this case is for the Court to grant the application for extended leave on the conditions suggested by Dr Reid in the leave plan.
Ms Taylor, counsel for the applicant, and Ms Haban-Beer, counsel for the Attorney, made similar submissions.
Conclusions
I accept the parties’ submissions that, on all the evidence, I should be satisfied that the safety of XY or members of the public would not be seriously endangered as a result of XY’s being allowed extended leave on the conditions in the suggested leave plan.
Dr Reid, Dr Gray and Ms Lynch were impressive witnesses. They addressed all issues in a considered, forthright and convincing manner. I accept their evidence.
Of course, it is for the Court, not the psychiatrists or other professionals, to make findings of fact and to determine the application. But judges are not psychiatrists or others with expertise in the area of mental health. Yet much of what is in issue on an application of this nature turns on matters of psychiatry. The Court’s findings of fact, and its determination, are necessarily very much informed by the opinions of the psychiatrists and other professionals when those opinions are well reasoned and convincing, come from well-qualified and responsible professionals who have been involved in the treatment of the patient in question for a considerable period of time, and are not contradicted by other evidence.
In particular, I am satisfied, to the requisite standard, on all of the available evidence, including the evidence of Dr Reid, Dr Gray and Ms Lynch, of the following matters: First, XY’s psychiatric illness is now controlled with Clozapine. Secondly, her positive psychotic symptoms have been in remission for a substantial period. Thirdly, she has coped well on the graduated forms of leave she has had in the community. Fourthly, provided XY maintains compliance with her current regime of medication and abstinence from use of illicit drugs, she will pose only a low risk of harm to herself or others in the future. Fifthly, XY will abide by the conditions imposed upon her in the leave plan. In particular, I am confident that she will continue to take her medication and that she will abstain from illicit drug use and abuse of alcohol. Sixthly, there are satisfactory supports and supervision available in the community to ensure that her mental health remains good. Seventhly, those supports and supervision are such that, even if her mental health were to deteriorate significantly, that deterioration would be detected and treated before any risk of harm to XY or others materialized.
I should mention two further matters, both of which concern DC’s family. First, while I acknowledge the understandable concerns expressed by DC’s family members in their reports about releasing XY on extended leave at all, those concerns cannot displace or override my finding that the safety of XY or members of the public would not be seriously endangered as a result of XY’s being allowed extended leave, on conditions. In my view, having made such a finding, I am compelled to grant the application for extended leave.
Secondly, I am satisfied that, during the period of extended, leave, XY will not return to the country town in which the killing of DC occurred, and where some of DC’s family and some of XY’s family still live. Counsel appearing for XY gave an undertaking on behalf of XY that she would not go to that town. I accept that undertaking.
It is, of course, impossible to be certain that XY’s mental health will remain good and that she will pose no risk of harm to herself or anyone else when in the community. But that is not the test. Rather, the ultimate question is whether, on the evidence available, the safety of XY or members of the public will not be seriously endangered as a result of her being allowed extended leave. Having considered the evidence before me, the matters set out in ss 39 and 40, the proposed conditions in the leave plan and the submissions of counsel, for the foregoing reasons, I am satisfied, to the requisite standard, on the evidence available, that the safety of XY or members of the public will not be seriously endangered as a result of XY’s being allowed extended leave.
I also accept the evidence of Dr Reid and Dr Gray concerning the suppression of XY’s name and related information. In my view, based on that evidence, it would be preferable for XY’s rehabilitation and reintegration back into the community, and therefore in the public interest, that the names and addresses of XY, DC and their relatives not be published.[15]
[15]In order to ensure that these reasons complied with my own order and with the intention of the parties, I caused a draft of these reasons to be sent to the parties for their consideration before publication to the world at large.
Orders
It was for these reasons that I made the following orders on 30 April 2018:
1) Pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), the applicant is granted extended leave – i.e. leave to be absent from her place of custody, Thomas Embling Hospital – for a period of 12 months, commencing 30 April 2018, subject to the following conditions:
a)that the applicant remain under the supervision of the authorized psychiatrist of the Victorian Institute of Forensic Mental Health (“VIFMH”) or his or her delegate;
b)that the applicant reside at an address approved by the authorized psychiatrist of VIFMH or his or her delegate;
c)that the applicant abide by the lawful directions of the authorized psychiatrist of VIFMH or his or her delegate;
d)that the applicant comply with treatment and testing and attend appointments as directed by the authorized psychiatrist of VIFMH or his or her delegate;
e)that the applicant abstain from the abuse of alcohol and from the use of illicit drugs; and
f)that the applicant not leave the State of Victoria without the written permission of the authorized psychiatrist of VIFMH or his or her delegate.
2) Pursuant to s 75 of the Act, publication of the following is prohibited:
a)the names and addresses, or former addresses, of the applicant, the deceased and their relatives; and
b)any information which might identify the names and addresses, or former addresses, of the applicant, the deceased and their relatives, except insofar as such information is contained in the written reasons for judgment of the Court on this application.
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