CITATION:The King v Ajax & Anor [2023] NTSC 80
PARTIES:THE KING
v
AJAX, David
and
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22028681
DELIVERED: 12 September 2023
HEARING DATE: 3 May 2023
ADDITIONAL WRITTEN
SUBMISSIONS: 11, 22, 25 May 2023
JUDGMENT OF: Brownhill J
CATCHWORDS:
Criminal Code 1983 (NT) ss 43R, 43T, 43XA, 43XB, 43Y, 43ZA, 43ZG, 43ZH, 43ZJ, 43ZLA, 43ZM, 43ZN, 43ZO
Briginshaw v Briginshaw (1938) 60 CLR 517; Gifford v The Queen (2016) 263 A Crim R 373; Nigro v Department of Justice (2013) 234 A Crim R 1; Reberger v The Queen [2011] NSWCCA 132; The Queen v Faulton [2004] NTSC 12; The Queen v Forscutt [2004] NTSC 8; The Queen v Gibson [2017] NTSC 47; The Queen v KMD (No 2) [2017] NTSC 18; The Queen v KMD (No 5) [2022] NTSC 69; The Queen v KMD [2015] NTSC 31; The Queen v Kunoth [2014] NTSC 41; The Queen v Morton (2010) 27 NTLR 114; The Queen v RK [2019] NTSC 67; The Queen v Skeen [2018] NTSC 28; The Queen v Verdins (2007) 16 VR 269, referred to
REPRESENTATION:
Counsel:
Crown:TJ Wrathall
Supervised Person: T Collins
CEO Department of Health: K Bremner
Solicitors:
Crown:Office of the Director of Public Prosecutions
Supervised Person: North Australian Aboriginal Justice Agency
CEO Department of Health: Solicitor for the Northern Territory
Judgment category classification: C
Judgment ID Number: Bro2317
Number of pages: 49
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Ajax & Anor [2023] NTSC 80
No. 22028681
BETWEEN:
THE KING
Crown
AND:
DAVID AJAX
Supervised Person
AND:
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 12 September 2023)
Introduction
By an indictment dated 12 May 2021, Mr Ajax was charged with two counts of aggravated assault alleged to have been committed on 11 September 2020.
On 31 August 2021, by agreement between the Crown and Mr Ajax’s counsel on his behalf[1], the Court found that Mr Ajax was unfit to stand trial pursuant to s 43T(1) of the Criminal Code, and that there was no reasonable prospect that Mr Ajax might, within 12 months, regain the necessary capacity to stand trial pursuant to s 43R(1) of the Criminal Code.
Following these findings, the Court received a report from psychiatrist, Dr Sam Calvin, of a psychiatric assessment of Mr Ajax (‘Calvin report’). The Calvin report stated that Mr Ajax meets the criteria for a major neurocognitive disorder due to multiple aetiologies, and displays features of alcohol use disorder. Consequently, the report found that Mr Ajax has an established diagnosis of intellectual disability and brain damage. The Calvin report recorded that Mr Ajax lives in supported accommodation, cannot manage his finances and needs assistance for activities of daily living. There is a longstanding history of poor…
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- Decision Date
CaseChat Overview and Summary
The court was required to consider several legal issues, including the specific conditions to be included in the NCSO, the appropriateness of the duration of the order, and whether the order should commence from the time of Ajax's first custody or from the date of the court's decision. The primary legal considerations involved interpreting sections 43ZM and 43ZN of the Criminal Code, which outline the principles and factors to be taken into account when determining the conditions of a NCSO.
The court held that a term of 12 months was appropriate, noting that the order should commence from the date of the decision. The court emphasised that the restrictions on Ajax's freedom and personal autonomy should be kept to the minimum necessary to protect the community, and it considered the relevant factors outlined in section 43ZN of the Criminal Code. The court balanced Ajax's mental health needs and the risk he poses with the need to ensure his successful reintegration into the community. The court also highlighted that the purpose of the NCSO is rehabilitation, not punishment.
The court made a non-custodial supervision order for a term of 12 months, to commence from the date of this decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Pursuant to s 43ZG(1) of the Criminal Code, I fix a term of 12 months. While the Court may, pursuant to s 43ZG(4B), determine that the term is to commence from a time before the making of the supervision order and at or after the time Mr Ajax was first taken into custody for the offences, I consider that the 12 month period should commence from the date of this decision, noting that Mr Ajax was granted bail following his arrest. Making a supervision order – Relevant considerations and approach The Court may make a NCSO subject to the conditions the Court considers appropriate and specifies in the order (s 43ZA). In determining whether to make an order under Part IIA, including a NCSO (s 43ZLA), the Court must apply the principle that 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). The matters to which the Court must have regard are set out in s 43ZN(1), namely:(a)whether the supervised person is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability;(b)the need to protect people from danger;(c)the nature of the mental impairment, condition or disability;(d)the relationship between the mental impairment, condition or disability and the offending conduct;(e)whether there are adequate resources available for the treatment and support of the supervised person in the community;(f)whether the supervised person is complying or is likely to comply with the conditions of the supervision order; and(g)any other matters the Court considers relevant. In The Queen v KMD [2015] NTSC 31, Riley CJ made the following observations (at [39]) in relation to the Court’s determination in accordance with ss 43ZM and 43ZN:[4]In my opinion determination of these matters involves a balancing of competing considerations. The likelihood of the person being a danger to herself or another person and the need to protect others must be balanced against the desire to ensure the liberty of the individual. The consequences for the individual who, it must be remembered, has been found not guilty of criminal activity by virtue of mental impairment, may be quite serious including ongoing detention or living under onerous supervision. The risk assessment must reflect both the likelihood of conduct of concern occurring and the magnitude of the harm that may result from any such conduct. The legislation calls for an assessment of the degree of likelihood of the occurrence of the risk along with the nature of the risk and its consequences. Some level of risk will, almost always, be present. The extent of the risk must be weighed in the balance in determining the nature of the supervision order to be imposed. The purpose of Part IIA is to assist a supervised person to successfully integrate into the community if that can be achieved safely.[5] It is not about sanction under the criminal law, but a plan for the rehabilitation of a person who has been found not guilty of a crime by reason of mental impairment.[6]