The Chief Executive Officer Department of Health v KMD

The Chief Executive Officer Department of Health (the appellant) appealed to the Supreme Court of the Northern Territory against a decision of the primary judge to impose a non-custodial supervision order on KMD. KMD had previously been found not guilty of eight offences by reason of mental impairment and declared a person liable to supervision. The appeal concerned whether the primary judge erred in making a non-custodial supervision order, specifically regarding the assessment of risk posed by KMD if released from custody.

The legal issues before the court were whether the primary judge erred in considering the evidence of a clinical social worker, Ms Guy, and whether the terms of the proposed non-custodial supervision order adequately mitigated the risks posed by KMD, particularly in light of her untreated delusional mental illness. The court was required to determine if there was sufficient material to conclude that KMD did not pose a serious risk to the public if released on a non-custodial supervision order, taking into account her current mental state and the reports submitted under the Criminal Code.

The court reasoned that while the primary judge correctly acknowledged the limitations of Ms Guy's expertise as a mental health professional, her evidence was still relevant and influential in structuring the non-custodial supervision order. The primary judge understood Ms Guy's role was to support KMD and report any observed deterioration in her mental health to a support team. The court found that the terms of the non-custodial order, including the involvement of family support and a back channel to professional mental health services, were designed to mitigate the risks. The court noted that while risk can never be entirely eliminated, the restrictions placed on KMD were considered to sufficiently address the potential for catastrophic consequences should the risk materialise, especially given a consensus that KMD was at low risk of actual violence.

The appeal was upheld.