The King v Murdoch - [2024] NTSC 60

CITATION:The King v Murdoch [2024] NTSC 60
PARTIES:THE KING
v

MURDOCH, Gerald

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21312275
HEARING DATE:  12 January 2024
JUDGMENT GIVEN:  12 January 2024
REASONS DELIVERED:                17 July 2024
JUDGMENT OF:  Kelly J

Criminal Code 1983 (NT), s 43H, s 43I, s 43ZG(1), s 43ZG(6), s 43ZH(2)(a), s 43ZH(3), s 43ZH(3)(d), s 43ZLM, s 43ZN, s 43ZN(2)(a)(i), Part IIA
Mental Health and Related Services Act 1998 (NT)
R v KMD [2015] NTSC 31

REPRESENTATION:
Counsel:
Crown:S McMaster
Chief Executive Office of the
Department of Health:               E Farquhar
Supervised Person:  A Abayasekara
Solicitors:
Crown:Office of the Director of Public Prosecutions
Chief Executive Officer of the
Department of Health:               Solicitor of the Northern Territory
Supervised Person:  Northern Territory Legal Aid
Judgment category classification:    C
Judgment ID Number:  Kel2406
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Murdoch [2024] NTSC 60

No. 21312275

BETWEEN:

THE KING

AND:

GERALD MURDOCH

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 17 July 2024)
Background and Procedural History

On 23 March 2013, Mr Murdoch was charged with one count of attempting to have sexual intercourse without consent and knowing about or being reckless as to the lack of consent.
Mr Murdoch’s actions were found to be as a result of schizophrenia and on 13 February 2014, the Court accepted a plea of not guilty due to mental impairment pursuant to s 43H of the Criminal Code 1983 (NT) (the Code). The Court formally declared that Mr Murdoch was liable to supervision pursuant to s 43I of the Code.
On 12 June 2014, a Custodial Supervision Order (CSO) was imposed and a term of imprisonment of three years was set for the purposes of s 43ZG(1) of the Code. Following a major review of Mr Murdoch’s case in 2016, the Court ordered the continuation of the CSO.
On 21 July 2017, following a periodic review, the CSO was varied to a Non-Custodial Supervision Order (NCSO) and Mr Murdoch was permitted to relocate to Alice Springs.
As part of the NCSO, Mr Murdoch has been continuously subject to:
(a)electronic monitoring,
(b)a curfew,
(c)a residential direction,
(d)geographic restrictions,
(e)a non-contact order,
(f)a direction to participate in treatment and programs,
(g)a direction to take medications as directed,
(h)a direction to abstain from alcohol and drug use, and
(i)a direction to participate in breath testing or other testing for alcohol and drugs.
Mr Murdoch became a participant in the National Disability Insurance Scheme (NDIS) operated by the federal National Disability Insurance Agency (NDIA) while residing in Alice Springs between 2017 and 2021. He has a disability support worker who assists him with daily community access. He has previously had NDIS supported accommodation.
In June 2021 Mr Murdoch obtained permission of the Court to return to Darwin and did so, residing in private accommodation before moving into Banksia House in May 2022. Since Mr Murdoch’s return to…

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 Murdoch

Details

AGLC: The King v Murdoch [2024] NTSC 60
Case: [2024] NTSC 60
Decision Date: 17 July 2024

CaseChat Overview and Summary

The King v Murdoch involved the respondent, Mr Murdoch, who was subject to a non-custodial supervision order (NCSO) due to his mental health conditions. The dispute centred around whether Mr Murdoch should be released unconditionally or continue under a Community Mental Health Order (CMO). The case was heard in a court with appropriate jurisdiction over mental health matters.

The central legal issues were whether Mr Murdoch's mental impairment and associated risks could be adequately managed under a CMO, considering his schizophrenia and cognitive distortions, and if the risks he posed outweighed his right to be free from the NCSO. The court had to balance the safety of Mr Murdoch and the public against his right to freedom and the presumption in Part IIA of the relevant legislation.

The court considered expert evidence from Dr Kini and Dr Das, who testified that the risk to Mr Murdoch or the public was not likely to be serious if he were released under a CMO. The court also accepted that any risk could be managed within the CMO framework, particularly given Mr Murdoch's funding through the NDIS, which provided some stability. The court found that while Mr Murdoch's cognitive distortions and views posed some risks, these did not outweigh his right to be free from the NCSO, especially considering the legislative presumption in favour of freedom under Part IIA.

Ultimately, the court concluded that Mr Murdoch should be released unconditionally, acknowledging that while his cognitive distortions and views presented risks, they did not negate his right to freedom under the presumption set out in the legislation. The court ordered the revocation of the NCSO and Mr Murdoch's release without any further supervision.

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

Defence submitted that a CMO will appropriately manage Mr Murdoch’s treatment in the community and that a CMO includes the necessary enforcement powers and options for involuntary treatment should the supervised person disengage. Counsel for the supervised person contended therefore that the Court should revoke the order and release the supervised person unconditionally.Consideration I accept the expert opinion evidence of Dr Kini and Dr Das that the safety of either Mr Murdoch or the public is not likely to be seriously at risk if Mr Murdoch is released from the NCSO and that any risk can be appropriately managed on the CMO currently in place. I initially experienced some doubt as to the potential effectiveness of a CMO given that such orders are enforceable only in the Northern Territory, Mr Murdoch has expressed a desire to relocate interstate, and if unconditionally released from any form of supervision order, he would be free to do so without notice to his treating team. However, I asked Dr Kini about this possibility and was satisfied that, if given sufficient notice of any relocation, contact could be made with the appropriate interstate agency and Mr Murdoch’s treatment transferred to them. Further, Mr Murdoch now has funding through the NDIS which gives him some ties to the Territory and decreases the likelihood of a sudden, unannounced relocation interstate without transferring his treatment to an alternative agency. Turning to the factors set out in s 43ZN of the Code, I accept the evidence of Dr Das and Dr Kini that Mr Murdoch’s mental impairment is stable and his schizophrenia is well managed with medication such that the risk of him endangering himself or another is unlikely. Part IIA is largely directed towards the management of the risk that arises from the mental impairment that gave rise to the initial order rather than anti-social personality traits and faulty thinking patterns. However, s 43ZN(g) does envisage the need for the Court to have regard to other matters that may influence a person’s risk. That would include the “cognitive distortions” identified in the reports. Mr Murdoch’s cognitive distortions formed part of his risk profile alongside mental illness as identified by Dr Kini in his RSVP assessment. Although they are not the result of Mr Murdoch’s mental illness, the reports suggest that these distortions are likely to influence Mr Murdoch’s attitude towards the initial offending including his lack of remorse and lack of empathy for the victim. I have reached the conclusion, based on the expert opinion evidence, that while Mr Murdoch’s views, mainly his views on women, give rise to some risk to those with whom he may be in an intimate relationship, the risks posed by these views do not outweigh his right to be free of the NCSO, particularly in light of the legislative presumption identified by this Court from the language in Part IIA. Further, there appears to be limited utility in Mr Murdoch remaining on the NCSO for the purposes of treating and managing any risks posed by these cognitive distortions when on both expert accounts, they have remained unchanged despite consistent efforts. Mr Murdoch needs to be managed outside of an NCSO notwithstanding these views.