The King v KMD (No 6) - [2023] NTSC 51

CITATION:The King v KMD & Ors (No 6) [2023] NTSC 51
PARTIES:THE KING
v

KMD

and

CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH

and

CHIEF EXECUTIVE OFFICER DEPARTMENT OF CORRECTIONAL SERVICES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21319440
DELIVERED:  16 June 2023
HEARING DATES:  7, 8 March 2023
ADDITIONAL WRITTEN
SUBMISSIONS:  24, 30 March 2023
JUDGMENT OF:  Brownhill J
CATCHWORDS:

Criminal Code Act 1983 (NT) ss 43ZA, 43ZC, 43ZD, 43ZE, 43ZF, 43ZG, 43ZH, 43ZK, 43ZL, 43ZM, 43ZN.
Family Law Act 1975 (Cth)
Mental Health and Related Services Act 1998 (NT)
Briginshaw v Briginshaw (1938) 60 CLR 336; NOM v Director of Public Prosecutions (2012) 38 VR 618; The Queen v KMD [2015] NTSC 31; The Queen v KMD (No 5) [2022] NTSC 69, referred to.

REPRESENTATION:
Counsel:
Crown:T McNamee, S Ozolins
Supervised Person:  Self-represented
CEO Department of Health:        R Brebner
CEO Department of
Correctional Services:                R Brebner
Solicitors:
Crown:Office of the Director of Public Prosecutions
Supervised Person:  -
CEO Department of Health:        Solicitor for the Northern Territory
CEO Department of
Correctional Services:                Solicitor for the Northern Territory
Judgment category classification:    C
Judgment ID Number:  Bro2309
Number of pages:  93

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v KMD & Ors (No 6) [2023] NTSC 51

No. 21319440
BETWEEN:

THE KING
Crown

AND:

KMD
Supervised Person

AND:

CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH

AND:

CHIEF EXECUTIVE OFFICER DEPARTMENT OF CORRECTIONAL SERVICES

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 16 June 2023)
Introduction

KMD is subject to a custodial supervision order (‘CSO’) made under Part IIA of the Criminal Code Act 1983 (NT) (‘Criminal Code’). Section 43ZH of the Criminal Code permits the Court to conduct periodic reviews to determine whether a CSO should be continued or whether the supervised person may be released on a non-custodial supervision order (‘NCSO’). On 2 September 2022, I delivered a decision on the most recent periodic review.[1] In that decision, I found (at [144]), on the basis of the evidence then before me, that the degree of likelihood that KMD would act on her delusional belief system in a violent way in the community was low, but real rather than fanciful. Consequently, I found that whether the safety of KMD or the public would be seriously at risk if she were released on a NCSO depends significantly upon the terms of any such order and the mechanisms in place to support KMD to live in the community in compliance with such terms.
After I delivered my decision in R v KMD (No 5), I made orders for the filing of further expert reports as required by s 43ZN(2)(a)(i) of the Criminal Code, reports from the victims of the original offending as required by s 43ZL, and reports from KMD’s next of kin and Aboriginal community as permitted by s 43ZN(2)(b).
Reports and other evidence were tendered, written submissions were filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The King v KMD (No 6)

Details

AGLC: The King v KMD (No 6) [2023] NTSC 51
Case: [2023] NTSC 51
Decision Date: 16 June 2023

CaseChat Overview and Summary

The matter before the Supreme Court of the Northern Territory was a periodic review of a custodial supervision order made under Part IIA of the Criminal Code Act 1983 (NT) (Criminal Code). The Court was required to decide whether the supervised person, KMD, should be released on a non-custodial supervision order and, if so, on what terms. The Court was required to take into account various matters, including the need to protect people from danger, the nature of the mental impairment, condition or disability, the relationship between the mental impairment, condition or disability and the offending conduct, and whether there are adequate resources available for KMD’s treatment and support in the community. The Court also had to consider two reports from experts, periodic reports from the Forensic Mental Health Team, reports from the victims of the original offending, and reports from KMD’s next of kin and Aboriginal community. The Court found that KMD should be released on a non-custodial supervision order, subject to certain conditions. The Court considered the evidence of experts, periodic reports, victims’ reports, and family reports, and weighed the risks and benefits of releasing KMD on a non-custodial supervision order. The Court found that KMD’s risk of violence was low, but real, and that adequate resources were available to support her treatment and rehabilitation in the community. The Court also found that the conditions of the non-custodial supervision order would ensure the safety of the community and the protection of the victims. The Court made an order releasing KMD on a non-custodial supervision order, subject to conditions such as residence, curfew, electronic monitoring, and prohibition of contact with the victims and their residences.

Orders