Scotty - [2003] NTSC 98

Scotty [2003] NTSC 98
PARTIES:IN THE MATTER OF A REVIEW OF A CUSTODIAL SUPERVISION ORDER PURSUANT TO SECTION 43ZH OF THE CRIMINAL CODE
AND

IN THE MATTER OF ANTHONY JABALTJARI SCOTTY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9518080
DELIVERED:  10 September 2003
HEARING DATES:  5 and 6 August 2003
JUDGMENT OF:  MARTIN CJ
REPRESENTATION:
Counsel:
Jabaltjari Anthony Scotty:                 D Bamber (CAALAS)
DPP:W J Karczewski QC
Department of Justice:  G Macdonald
Dept Health & Community Services:     D Farquhar (Cridlands)
Judgment category classification:      C
Judgment ID Number:  mar0337
Number of pages:  14

Mar0337
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Scotty [2003] NTSC 98
No. 9518080
IN THE MATTER OF A REVIEW OF A CUSTODIAL SUPERVISION ORDER PURSUANT TO SECTION 43ZH OF THE CRIMINAL CODE

AND

IN THE MATTER OF ANTHONY JABALTJARI SCOTTY

CORAM: MARTIN CJ
REASONS FOR DECISION
(Delivered 10 September 2003)

On 15 October 1996 the abovenamed Anthony Jabaltjari Scotty (“Mr Scotty”) was found not guilty on account of insanity upon charges of murder, robbery, aggravated assault and attempted sexual intercourse without consent. As required by the then s 382 of the Criminal Code it was ordered that he be kept in strict custody at the Alice Springs Correctional Centre until the Administrator’s pleasure was known. That order was carried into effect.
There is no evidence that the question of his custody was brought to the attention of His Honour the Administrator until 27 September 2001. On that day His Honour ordered, inter alia, that the Director of Correctional Services be responsible for Mr Scotty’s safe custody, that he be confined in the Alice Springs Correctional Centre and that the Prisoners (Correctional Services) Act (except Part XVII apply) as if Mr Scotty were under a sentence of imprisonment. The Chief Health Officer was ordered to care for and treat Mr Scotty for any illness, physical and mental, whether or not he consented to it. The Chief Health Officer was also ordered to forward periodical reports to the Attorney-General, including as to any suggested treatment or management plan during the period Mr Scotty was in safe custody.
The Director of Correctional Services was ordered to provide to the Attorney-General at intervals of not more than 12 months a report concerning the control being exercised over Mr Scotty.
There is no evidence that prior to the order being made by His Honour the Administrator, any person outside the Correctional Services agency was informed as to Mr Scotty’s custodial arrangements, treatment or management. No special determinations were made by the Director under s 90 of the Prisons (Correctional Services) Act to recognise the status and disabilities of inmates such as Mr Scotty or him in particular.
The Criminal Code Amendment (Mental Impairment and Unfitness to be Tried) Act2002 came into operation on 15 June of that year. Pursuant to s 6 of the amending Act, Mr Scotty was taken to be a supervised person held in custody on the same terms and conditions under a custodial supervision order within the meaning of Part IIA of the amended Criminal Code and, subject to subsection (3) of s 6, that part applied in relation to him. He could be dealt with under that part as if he was a supervised person subject to a custodial supervision order. The Chief Executive Officer of the Department of Justice was obliged to prepare and submit to this Court a report of the kind described in s 43ZJ of the amended Criminal Code within 6 months of the date of commencement of the amending Act. The Court was then obliged to commence a review in relation to Mr Scotty under s 43ZH of the Act as soon as practicable after receiving the report.
Mr Scotty became a supervised person within the meaning of the Act held in custody on the same terms and conditions as those ordered by His Honour the Administrator.
The report by the appropriate person, the Chief Executive Officer of the Department of Justice, was filed by the Director of Public Prosecutions on his behalf on 19 December 2002. It comprised two documents, one an assessment of 22 November 2002 by Mr Daryl Murdock of the Positive Behaviour Support Unit (“PBSU”) and one of 6 December 2002 by Dr Marcus Tabart of Forensic Mental Services. I have previously held that the failure by the Chief Executive Officer to file a report within the period of six months from 15 June 2002 does not deprive the court of jurisdiction to conduct the review. (Directions delivered 18 February 2003 paras 8 and 9). Pursuant to the recommendations contained in Mr Murdock’s report and directions given by the Court, further evidence was gathered.
Mr Scotty had the right to appear upon the review of the supervision order but I was satisfied that his appearance before the Court would be detrimental to his health. The Director of Public Prosecutions appeared and leave was given to the Chief Executive Officer of the Department of Justice in his capacity as the head of the Correctional Services agency and the Chief Executive Officer of the Department of Health and Community Services to appear before the Court at the hearing. I was satisfied that each of them had a proper interest in the matter since Mr Scotty had been in the custody of the Correctional Services agency since the order made upon his being found not guilty of the offences and the Department of Health had directly or indirectly over that period of time been involved in his medical care and treatment. It was anticipated that both agencies would continue to be similarly involved. As to the rights of persons to appear at hearings upon a review of a supervision order see generally s 43ZI.
In the circumstances described by s 43ZL the Court could request and receive a variety of prescribed reports. No request was made for any of those reports. In any event, enquiry made by the Director of Public Prosecutions indicated that the victims of the offences that were able to be contacted did not wish to provide any report as envisaged in subparagraph (a). The Court was informed by counsel appearing on behalf of Mr Scotty that enquiries had been made to identify his next of kin and to inform them of the proceedings and to identify an Aboriginal community of which he may have been a member, (c) and (d). Difficulty had been experienced in identifying all those from whom views may have been sought but those spoken to had not evinced any particular interest in the proceedings.
Section 43ZL(b) envisages the Court requesting and receiving a report setting out the views of the next of kin of a deceased victim concerning the conduct of the supervised person. No request was made for such a report and upon consideration of all the facts and circumstances regarding the supervision order and the proposal to vary it, it is doubted that the Court would be assisted by any such report. However, counsel for the Director of Public Prosecutions provided to the Court a statement made by Mr McIntyre, the widower of the lady killed by Mr Scotty which lead to the charge of murder. He described the impact which the events leading to her death and her death had had upon him and other members of the family. I well understand Mr McIntyre’s desire to have those matters brought to the attention of the Court but strictly speaking I do not think that the information thus conveyed falls within the bounds of the report which can be received.
The evidence received for the purposes of the review comprised,
Exhibit 2- Certificate of Proceedings certifying as to the verdicts and order.
Exhibit 3- The Administrator’s order of 27 September 2001.
Exhibit 4- A medical report of Dr Shirley Hendy, Chief Health Officer, dated 14 January 2002 regarding Mr Scotty’s mental disability.
Exhibit 5- A further medical report of Dr Hendy together with that of Dr Marcus Tabart, Psychiatrist, dated 2 May 2002 regarding the future care required by Mr Scotty.
Exhibit 6- The assessment report prepared by Mr Murdock of 22 November 2002 containing a detailed review of medical and prison records, interviews with Mr Scotty and those who have interacted with him in prison, and his opinion regarding future care.
Exhibit 7- Psychiatric report dated 6 December 2002 of Dr Tabart who had had contact with Mr Scotty for about five years confirming his diagnosis of his impairment.
Exhibit 8- A neuropsychological assessment prepared by Mr Mark Reid dated 20 May 2003 confirming Mr Scotty’s impairment and requirements for future care.
Exhibit 9- A letter from the Chief Executive Officer of the Department of Health and Community Services of 4 April 2003 advising that the Joan Ridley Unit under the control of the Department of Health and Community Services was not a suitable facility for the long term care of Mr Scotty.
Exhibit 10 - A proposed management plan formulated by Mr Murdock in relation to increasing Mr Scotty’s time away from his cell and reintegration into the mainstream prison life.
Exhibit 11 -Mr Murdock’s statement of 31 July 2003 as to his qualifications and experience in managing people with behavioural issues and the structure of the Positive Behaviour Support Unit.
Exhibit 12 - Report from the Northern Territory Correctional Services Agency of 29 April 2002 regarding Mr Scotty’s activities in prison.
Exhibit 13 -A report of Commissioner Moore of Correctional Services Agency dated 12 June 2003 as to the nature of the custody in which Mr Scotty is held, his daily activities and the suitability of the Alice Springs Correctional Centre as a place for his continued care and management.
Exhibit 14 -The affidavit of Superintendent Rodney Williams of the Alice Springs Correctional Centre sworn 4 August 2003 indicating that the proposed management plan formulated by Mr Murdock had the support of the Northern Territory Correctional Services subject to recruiting sufficient and suitable prison officers.
Oral evidence was taken from Mr Murdock and Superintendent Williams. They were able to supplement the other material which they had authored and were cross examined by counsel.
The Court was also assisted in its understanding of the evidence by a view at the Alice Springs Correctional Centre and in particular those parts of the environment in which Mr Scotty is usually held. It comprised a normal cell in the protection wing of the maximum security area of the prison and the exercise area where he spends limited time when permitted outside the cell. It was observed that the cell consisted of a solid door normally kept closed and locked while it was occupied by Mr Scotty, a single bed, a shelf upon which there was a television set and a few scant personal possessions, an ablutions area and a barred window looking over barren ground.
The evidence in respect of all the matters which must be taken into account and considered by the Court is consistent in all essential respects. There is no significant divergence of views in the written submissions received from counsel after the conclusion of the taking of evidence. I am therefore relieved of any duty to make findings on conflicting evidence or make choices between significantly competing contentions regarding the orders now to be made. I am grateful to all witnesses and counsel for their assistance.
However, I should not let the occasion pass without observing that what has now been done and is proposed to be done should have been undertaken well before this. I can see no reason why executive power could not have been exercised to achieve the same result as is now to be exercised by the newly granted judicial power.
The legislature has supplied the principle which the Court is to apply when determining whether or not to make an order under Part IIA of the Criminal Code. It is that the restrictions on a supervised person’s freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community (s 43ZM). In this case, for reasons which will appear, the community comprises the prisoners, prison officers and other persons who may from time to time come into contact with Mr Scotty in the environs of the Alice Springs Correctional Centre.
The report received from the Chief Executive Officer of the Department of Justice pursuant to s 43ZJ and other evidence presented to the Court satisfies me of the following:
1.Mr Scotty is an Aboriginal man born 27 May 1963 who lived in the Central Australian region. He was found not guilty of the offences charged because of mental impairment constituted by brain damage. He suffered and continues to suffer from severe acquired brain injury due to substance abuse, petrol and alcohol in particular. Amongst other things that has resulted in an inability to recall previously learned information and he is severely impaired in regard to new learning.
2.The prognosis is very poor. It is unlikely that there will be any recovery of his cognitive abilities and more likely that there will be a continuation of the heretofore progressive deterioration in his mental faculties. He will require permanent care, whether in a prison or any other institutional setting.
3.Notwithstanding regular review by mental health professionals and their expression of concern as to his progressive mental deterioration, there is no evidence that he has received any particular treatment, therapy or counselling for his mental impairment, beyond tranquillising when required.
4.A suggested treatment plan for managing his mental impairment has been received. I will turn to it later.
5.Implementing the management plan could be assisted if an assessment has been made of Mr Scotty’s oral communication skills by a speech pathologist. The assistance of an interpreter may well be required.
The resources available at the Alice Springs Correctional Centre are not appropriate for the custody and care of Mr Scotty. He was ordered to be taken into a prison environment where he has been treated as a prisoner as if convicted of committing an offence. His history of aggressive and violent behaviour, pre-dating the orders consequent upon his being found not guilty, continued after his incarceration. By reason of his mental impairment he was not able to control his behaviour which brought about unwarranted attention from other prisoners from time to time and resulted in his being placed under protection. There have also been incidents in which he has exhibited aggressive conduct towards prison officers.
It is plain that by reason of his disability he was and continues to be unable to live under conditions in a prison where he can associate with other prisoners even subject to usual management and discipline. Mr Scotty has been isolated in a small single cell. The evidence of Mr Williams is that given his potential for aggressive behaviour towards other prisoners and the need for their proper management, the opportunities for Mr Scotty to be permitted outside of his cell are now restricted to two or three hours per day under the current determinations for internal management of the prison. He spends most of his waking hours watching television (provided by Prisoners Aid) but has no recollection of what he has seen or heard. Nevertheless I am of the opinion that there must be a review of internal management of the prison with the object of improving the conditions under which he is held with reference to his particular needs as a person, the subject of a supervision order with his mental impairment.
Authoritarian direction from prison officers which might be expected to be the norm in a prison environment have provoked and is likely to provoke an aggressive response from Mr Scotty arising from his disability. He is threatened by anything which strays outside of his now limited comprehension of what is going on around him. He has long reached the stage where any alteration to his routine is likely to make him fearful and, given his lack of cognitive skills, the only way he can cope with his fear and fright, is to become aggressive. The management plan aims to remedy that situation.
In determining whether to make an order under Part IIA of the Code the Court must have regard to a number of matters set out in s 43ZN. Turning to those matters I am satisfied that Mr Scotty would, if released, be likely to endanger himself or another person because of his mental impairment; he constitutes a danger to other people and there is a need to protect them; there are no adequate resources available for his treatment and support in the community outside of the prison. It cannot now be said whether he is likely to comply with the conditions of the supervision order as it is proposed to be varied. That compliance depends upon far too many imponderables, including, the ability of those undertaking the treatment plan to implement it in a way which is consistent with Mr Scotty’s mental impairment and his ability to comprehend and co-operate with what it is that is being tried to be achieved.
There is no question that the Court would make an order releasing Mr Scotty from custody, whether conditionally or otherwise, nor that the degree of his supervision should be significantly reduced, to the contrary. What is proposed is that there be an order varying the current supervision order so that the proposed treatment plan developed by Mr Murdock and others may be implemented.
Whether the treatment plan can be successfully implemented will depend upon the training of a prison officer or officers prepared to undertake the responsibility of educating Mr Scotty so that the strategies provided for by the plan can be implemented. That plan will require to be developed by the PBSU in conjunction with prison officers with a view to providing the means of best achieving the high degree of support required by Mr Scotty, improve his general physical and psychological well being with a long term goal of reintegrating him into the mainstream prison community.
The evidence emanating from the Department of Health and Community Services and Correctional Services is that additional resources will be required to enable each of them to meet their respective obligations for the development and implementation of the plan. However, in my opinion, resources directed to this particular supervised person are unlikely to be for his benefit alone. The incidence of substance abuse, particularly petrol sniffing, is well recognised, as is the growing evidence of the adverse effects on the abusers. It is likely that there will be others who will, as a result of offending, whether convicted or found not guilty on the grounds of mental impairment, come into the prisons system and could benefit from the implementation of the type of strategies advanced in this case by the PBSU. There may well be other circumstances in which they could be usefully employed both for the humane benefit of the person in custody, the prison population and the wider community.
There will be orders as follows:
1.Anthony Jabaltjari Scotty continue to be the subject of a custodial supervision order and be committed to custody in a prison.
2.The Director of Correctional Services within the meaning of the Prisons (Correctional Services) Act shall be responsible for his safe custody.
3.In so far as it may be necessary or desirable, the Director, by instrument in writing, make determinations for or with respect to the internal management of the prison and in respect of Mr Scotty’s care and custody consistent with his status under Part IIA of the Criminal Code and his mental impairment.
4.In respect of any illness or injury, Mr Scotty shall be cared for and treated, if necessary without his consent, by the Chief Health Officer and Corrections Medical Service.
5.The Management Plan comprising Exhibit 10 (see copy attached) be implemented as soon as practicable.
6.Mr Scotty be assessed by a speech pathologist with the aid of an interpreter as soon as possible.
7. (a)The Chief Executive Officer of the Department of Justice shall, as the appropriate person, submit a report to the Court under Section 43ZK within 6 months of the date of this order.
7. (b)The report is to include information as to the services that have been provided to Mr Scotty since the date of this order.
8.The periodic review of the custodial supervision order is adjourned to a date to be fixed.

At the commencement of these proceedings I made an order prohibiting publication of them. The court was not closed. I have considered submissions received from interested parties, including counsel for Mr Scotty, but am not persuaded that there is any reason why that prohibition on publication should continue. The order is revoked.
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