The Queen v Bradley

[2020] NTSC 23

CITATION:The Queen v Bradley [2020] NTSC 23

PARTIES:THE QUEEN

v

BRADLEY, Thomas

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:21209291

DELIVERED ON:  14 May 2020

HEARING DATES:  29 January, 24 March and 12 May 2020

JUDGMENT OF:  Grant CJ

CATCHWORDS:

CRIMINAL PROCEDURE – Mental impairment – Procedure following declaration of liability for supervision

Whether supervision order should be varied from custodial to non‑custodial in nature – Failure to vary would subject supervised person to restrictions beyond those necessary for the maintenance of public safety – Supervision order varied

Criminal Code 1983 (NT) Pt IIA

The Queen v Forscutt [2004] NTSC 8, The Queen v KMD [2017] NTSC 18, referred to.

CRIMINAL PROCEDURE – Suppression and non-publication orders – Grounds

Application for suppression order on ground that publication of supervised person’s name might impede his progress or rehabilitation – Importance of principle of open justice not outweighed by possibility of prejudice

Evidence Act 1939 (NT) s 57

Advertiser Newspapers Ltd v Bunting & Ors [2000] SASC 458, Australian Broadcasting Corporation v L & Tudor Stack [2005] NTCA 7, J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, Nine Network Australia Pty Ltd v McGregor & Ors (2004) 183 FLR 44, referred to

REPRESENTATION:

Counsel:

Crown: M Nathan SC

Supervised Person:   S Cox QC

CEO (Health):   R Brebner

Solicitors:

Crown:Office of the Director of Public Prosecutions

Supervised Person:  Northern Territory Legal Aid Commission

CEO (Health):   Solicitor for the Northern Territory

Judgment category classification:    B

Judgment ID Number:  GRA2003

Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Bradley [2020] NTSC 23
No. 21209291

BETWEEN:

THE QUEEN

AND:

THOMAS BRADLEY

CORAM:    GRANT CJ

REASONS FOR JUDGMENT

(Delivered ex tempore on 14 May 2020)

[1]The supervised person in this matter was charged by indictment with the murder of his mother and father on 7 March 2012.  He was motivated by a range of longstanding delusional beliefs, including that his parents had abused him; that they had begged him to end their lives because they were struggling to live with what they had done to him; and that they were unable to commit suicide due to their religious beliefs.  The supervised person had been using amphetamines in the period leading up to the killings, although not immediately preceding his actions.

[2]After he was arrested, charged and committed for trial in this court, the supervised person was subject to psychiatric assessment.  That assessment concluded that at the time of the killings he was suffering from a “mental impairment” as defined in the Criminal Code 1983 (NT).  He pleaded not guilty to the charges on that ground.  On the basis of that assessment, the Crown accepted the plea of not guilty by reason of mental impairment to both counts of murder.

[3]On 31 October 2012, this Court recorded that the supervised person was not guilty by reason of mental impairment and declared him liable to supervision under the provisions of Div 5, Pt IIA of the Criminal Code.

[4]Following the entry of that order, and in accordance with the legislative scheme, the Court received a further report in relation to the supervised person's mental condition.  As a result of the matters disclosed in that report, including the nature and extent of the supervised person's continuing delusional beliefs, on 5 December 2012 the Court made a custodial supervision order requiring the supervised person to be kept at the Darwin Correctional Centre.

[5]As is required under the legislative scheme, the Court fixed 25 years as the non-parole period which would have been fixed for the homicides had the supervised person been found guilty of the offences charged.

[6]The matter has been reviewed every 12 months since that time.  On each of those reviews up to and including December 2018, this Court has ordered that the custodial supervision order continue for a further period of 12 months.  The expert evidence received in the course of those previous reviews was to the effect that the supervised person had not yet reached the stage where a non‑custodial supervision order could be recommended or safely made.  The continuation of the custodial supervision order on those occasions was based on the fact that the supervised person had, at those points in time, only a partial insight into his mental illness, residual delusional beliefs and some negative symptoms of schizophrenia. 

[7]The current review commenced in November 2019.  For that purpose I have received the following materials:

(a)reports dated 21 November 2019, 13 January 2020, 16 March 2020 and 11 May 2020 prepared by Dr Kini, a consultant forensic psychiatrist who has been the supervised person's treating psychiatrist since October 2014 and who has prepared periodic review reports each year since that time;

(b)a progress report dated 22 November 2019 prepared by the residential manager of the Complex Behaviour Unit at the Darwin Correctional Centre;

(c)a report dated 17 January 2020 prepared by Dr Weightman, a psychiatric registrar with specific qualifications in psychiatry;

(d)a report dated 17 January 2020 prepared by Dr Das, a consultant forensic psychiatrist whose experience includes 14 years as a forensic psychiatrist at the Broadmoor High Security Hospital in London preparing risk assessments in cases involving violent and sexual offending; and

(e)a certificate from Professor Catherine Stoddart, the Chief Executive of the Department of Health, certifying that the facilities and services necessary to provide care and treatment for the supervised person under a non‑custodial supervision order are available.

[8]The effect of those materials may be summarised as follows:

(a)The supervised person has been undertaking a community integration plan since December 2018.  That plan has involved supervised visits to the community which have increased incrementally in duration and frequency. 

(b)In addition to day visits, since February 2020 the supervised person has been having overnight stays at the facility at which he would reside in the event that the custodial supervision order is varied to a non-custodial supervision order.  By March 2020 he was residing at that residence between Monday and Friday and returning to the Complex Behaviour Unit at the Darwin Correctional Centre on Friday evening.  He has been subject to one‑on‑one supervision at all times when outside the residence.

(c)The supervised person has completed Stage 6 of the community integration plan, and during the period of almost 18 months while undertaking that integration he has adhered well to the conditions of his supervision order and his treatment plan.  He has demonstrated good insight into his mental illness.  He now fully accepts his diagnosis of schizophrenia and understands the importance of continuing his antipsychotic medication.  He has engaged well with his treating team and is compliant with his medication regime.  He has a good understanding about factors that can negatively affect his mental health.  He is aware of the early warning signs of relapse.  He understands that if he consumes any illicit substance he will be returned to prison.  He has not demonstrated any risk behaviours and his mental health has been stable with no evidence of psychosis.

[9]The supervised person's functioning and risk in community settings has been tested over an extended period of time and across reduced supervision levels.  It is the opinion of all the mental health experts involved in the supervised person's treatment and assessment that he can be safely managed in the community under a non-custodial supervision order subject to appropriate conditions.  Those conditions would include living in supported accommodation which is staffed on a 24‑hour basis and remaining subject to a rigorous risk mitigation plan.  That risk mitigation plan would, in the initial stages at least, likely include a curfew between the hours of 9 pm and 6 am except in case of medical emergency.  It would require compliance with the prescribed treatment and care plan and abstinence from alcohol and illicit drugs.  It would require the supervised person to undertake such clinical tests as are necessary for the treatment and management of his condition.  It would involve testing for alcohol and illicit drugs.  It would involve staff supervision and an incremental program of unsupervised community access.  It would also involve psychiatric review on a regular basis.

[10]In determining whether to make or vary a supervision order, this Court is required to apply the overarching principle expressed in s 43AM of the Criminal Code that restrictions on a 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. Section 43ZN of the Criminal Code then specifies the matters to be taken into account in determining whether to make or vary a supervision order, including the variation of a supervision order from one that is custodial to one that is non‑custodial in nature.  Those matters include:

(a)whether the supervised person would 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 likely to comply with the conditions of the supervision order, and;

(g)any other matters the Court considers relevant.

[11]That section then goes on to provide that the Court must not make an order reducing the level of supervision unless it has first obtained and considered two reports prepared by psychiatrists or other qualified experts, a periodic report on the condition of the supervised person and the views of the victim or next of kin of the victim concerning such matters as the conduct of the supervised person and the impact of the supervised person's conduct on the victim's family.

[12]I have already described the psychiatric evidence and the progress report.  The uncontested evidence is to the effect that the safety of the community may be maintained and protected under a non-custodial supervision order.  At the same time, however, the Court has received an impassioned letter from the brother of the supervised person, who is also, of course, the son of the victims of this incident.  The salient points made in that letter may be summarised as follows:

(a)the actions of the supervised person on 7 March 2012 were extremely violent and heinous, even accepting that they took place when he was in the grip of a psychotic state;

(b)that conduct took place in a context in which the supervised person had voluntarily embarked on a course of drug use, addiction and consequent psychosis;

(c)a member of the public might validly question whether custody for a period of eight years would properly reflect the gravity and consequences of that conduct;

(d)the progress which the supervised person has made over the past eight years has taken place in a restricted environment where abstinence from methamphetamine has been enforced by circumstance.  That progress is also supported by medication, without which the supervised person might suffer from relapse of his florid condition; and

(e)any decision to reduce the level of supervision to the point where the supervised person will eventually be unsupervised in a public place requires very careful scrutiny and consideration.  The next of kin expresses the view that such a situation would be unthinkable. 

[13]Although the letter acknowledges that the circumstances and situation are complex, it urges the continuation of the custodial supervision order.  While the Court has much sympathy for the torment of the next of kin and the impact this incident has had on them, any determination in this respect must be made in accordance with the legislative scheme.  That legislation has been enacted by our parliament, which is constituted by the elected representatives of the community.  That legislative scheme recognises and reflects that since at least the 1840s our legal system has acknowledged that a person is not criminally liable for his or her conduct if at the time of committing the act he or she was labouring under such a defect of reason due to mental illness as not to know the nature and quality of the act or whether it was wrong.  There is no doubt that was the case with the supervised person at the time he committed these acts, and that is why the Crown accepted the pleas of not guilty by reason of mental impairment.

[14]The legislative scheme also recognises and reflects that although a person who has committed an otherwise criminal act in those circumstances does not bear criminal responsibility for their conduct, a balance must be struck between the legitimate interests of that person and the safety of the community.  The legislation seeks to strike that balance by requiring that any restrictions imposed by the Court on that 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.  As this Court has previously observed, the stated purpose of Pt IIA of the Criminal Code is not criminal sanction, but the safe rehabilitation and reintegration of mentally impaired persons back into society: see The Queen v Forscutt [2004] NTSC 8 at [11]-[16]; The Queen v KMD [2017] NTSC 18 at [33].

[15]I have already described the psychiatric assessments and opinions which have been undertaken and formulated since November last year.  The psychiatrists who formed those opinions and prepared those reports have been treating the supervised person over an extended period.  In one case, that therapeutic relationship has been in place since 2014.  All the experts involved are fully informed as to the nature of the supervised person's conduct in 2012 and the nature of his psychiatric condition.  Against that background and with that knowledge, they are of the view that the supervised person's treatment under a non-custodial supervision order, subject to the treatment plan and the conditions imposed, would be consistent with maintaining and protecting the safety of the community.  There is no countervailing evidence.

[16]In those circumstances, the legislation requires the variation of the present supervision order from custodial to non‑custodial in nature.  To do otherwise would be to subject the supervised person to restrictions beyond those necessary for the maintenance of public safety.

[17]Counsel for the supervised person and counsel for the Chief Executive of the Department of Health have also sought an order suppressing the publication of the supervised person's name, proposed residence, place of employment and any other particular likely to identify him as a supervised person. That application is made pursuant to s 57 of the Evidence Act 1939 (NT) and, or in the alternative, pursuant to the inherent jurisdiction of this Court. The basis for the application is an apprehension that publicity may draw unwanted attention to the supervised person and retard or adversely affect his progress and rehabilitation.

[18]The operation of s 57 of the Evidence Act has been considered by the Court of Appeal on a number of occasion, including most extensively in Australian Broadcasting Corporation v L & Tudor Stack [2005] NTCA 7 and Nine Network Australia Pty Ltd v McGregor & Ors (2004) 183 FLR 44. So far as is relevant to this application, the section provides that “[w]here it appears to any Court … that for the furtherance of, or otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party or intended party to, or witness or intended witness in, such proceeding … the Court may, either before or during the course of the proceedings or thereafter, make an order … forbidding the publication of the name of any such party or witness”.

[19]That power is constrained by a number of matters.  First, it is limited to prohibiting the publication of the name of a party to a proceeding or details which might identify that party.  It does not extend to a general prohibition on the publication of other details.  Secondly, an order forbidding the publication of the name of a party to a proceeding before the Court can only be made if it is desirable to do so in the furtherance of, or otherwise in the interests of, the administration of justice.  Thirdly, the power must be exercised judicially.

[20]In this context, the phrase “the interests of the administration of justice” is primarily directed to ensuring that the publication of a party's name does not create a risk that the trial of the party would be unfair, or of the party suffering undue prejudice or undue hardship in the party's defence or in the conduct of the case: see Advertiser Newspapers Ltd v Bunting & Ors [2000] SASC 458 at [19]. Even accepting that is the primary purpose of the provision, it may in its terms extend to situations which involve undue prejudice or undue hardship to a party to proceedings beyond matters concerning a fair trial and the conduct of the case. However, it is not entirely clear that the power extends to permit a suppression order to be made for these purposes and in these circumstances. What is clear, however, is that any such order made under that provision could not extend beyond the name of the supervised person and any details which might have a tendency to identify him.

[21]This Court also has an inherent jurisdiction to make a suppression order forbidding the publication of the name of a party to a proceeding if such an order is in the interests of the administration of justice. The test as to whether a suppression order forbidding the publication of the name of a party to proceedings should be made in the inherent jurisdiction is a stricter test than that required by s 57 of the Evidence Act.  It is whether such an order is reasonably necessary to secure the proper administration of justice.  The power is not available merely because disclosure might interfere with important privacy interests: see J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10. The reason for the stringency of this test is that it is well‑established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public is an essential quality of an Australian court of justice: see John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 352 per Spigelman CJ.

[22]The reasons for the application in this case are to ensure that there is no prospect that adverse publicity might have some negative impact on the supervised person's mental state.  That is said to involve the administration of justice to the extent that it bears on the implementation of the scheme under Pt IIA of the Criminal Code.  It may be noticed in that respect that had the legislature considered that the interests of justice required the suppression of the name of a person not found guilty of a crime by reason of mental impairment, it could have made express provision for that restriction.  There is no general practice of suppressing the names of defendants in Pt IIA matters, and no statutory provision which would have that effect.  The position under this legislative scheme may be contrasted in that respect with proceedings involving juveniles, sexual offences and adult guardianship. 

[23]It is unnecessary in this application to determine whether s 57 of the Evidence Act or the inherent jurisdiction extends to the making of a suppression order for these purposes.  Even assuming there is power to do so, I am of the opinion that no such order should be made in the circumstances of this case.

[24]First, the supervised person's name and the circumstances of the killings were subject to extensive publicity and reporting at the time.  The supervised person's name has been published recently in the context of the review of his custodial supervision order.  No suppression order has previously been sought or made in the matter over the previous eight years.  It would, in those circumstances, be anomalous and of no appreciable effect to make a suppression order at this stage of the proceedings.

[25]Secondly, I have received an affidavit from the treating psychiatrist which suggests that the supervised person's progress or rehabilitation will be impacted by adverse publicity.  That adverse effect is said to be that media coverage could make the supervised person feel stigmatised, suspicious, guarded, worried about reprisal and hyper-vigilant.  The highest that opinion goes is that media coverage could potentially act as a psychological stressor.  What must be noted in this respect is that even if a suppression order was made in precisely the terms sought by the applicant, it would not preclude reportage that a person who was found not guilty of the murder of his parents in 2012 has been released on a non-custodial supervision order into supported accommodation in the community.  The supervised person would no doubt be able to identify himself as the subject of that reportage.  It is difficult to see how the inclusion of his name might have some different or greater effect on his psychological state. 

[26]In any event, any media coverage of the issue is likely to be relatively short‑lived.  As I have already described, the supervised person has previously been subject to publicity which might be described as adverse.  Despite that, his progress has apparently remained positive.  The Court is entitled to presume that any coverage will be fair and accurate rather than sensationalist or distorted.  Nor should this Court proceed on the basis that there would be any inappropriate conduct on the part of members of the community towards the supervised person as a result of any such publication.  The Court should proceed on the assumption that the members of the public will conduct themselves in a law‑abiding fashion.

[27]Thirdly, this application necessarily involves weighing the possibility that publication may impede the supervised person's recovery against the principle of open justice.  Public confidence in the justice system depends upon transparency.  The legislative scheme that I have earlier described, and its operation in a given case, are properly the subject of public scrutiny and discussion unless there is some overwhelming reason warranting an order for suppression.  In my opinion, the importance of the principle of open justice is not outweighed in this case by the possibility of prejudice suggested by the applicant.

[28]Against that background, I make the following orders:

1.The custodial supervision order made on 5 December 2012 is varied to a non-custodial supervision order.

2.For the purposes of the non-custodial supervision order, the “appropriate person” within the meaning of Pt IIA of the Criminal Code is the Chief Executive Officer of the Department of Health.

3.The supervised person is to remain under the care of and receive treatment from the servants and agents of the appropriate person and, in particular, the Top End Mental Health Service (“the treating team”).

4.During the operation of the non-custodial supervision order, the supervised person must:

(a)    comply with all reasonable and lawful directions of the treating team;

(b)    comply with the provisions of the Risk Management Plan dated 11 May 2020 prepared by Dr Kini, a copy of which is attached to this order;

(c)    in accordance with the recommendations and directions of the treating team, take all medications prescribed, comply with clinical treatment and care plans, participate in medical and therapeutic assessments and reviews, and undergo such clinical testing as required for the monitoring and further development of treatment and care plans, including medication regimes;

(d)    reside at Banksia House;

(e)    follow all reasonable directions of Banksia House staff, including in relation to participation in the structured activity program provided by Banksia House, the delivery of the treatment plan and the requirements of the Risk Management Plan; and

(f)     comply with any curfew imposed by the appropriate person for the period and during the time specified and not leave Banksia House during that curfew except in case of medical or dental emergency.

5.During the operation of the non-custodial supervision order, the supervised person must not:

(a)    engage in any behaviours in breach of the rules of Banksia House or that would cause his expulsion or exit from that facility;

(b)    purchase or consume alcohol or illicit drugs and must submit to testing for the purpose of detecting alcohol or illicit drugs as directed by the treating team, a Community Corrections officer or a police officer, or;

(c)    travel outside the Greater Darwin Region without the prior approval of the Supreme Court.

6.During the operation of the non-custodial supervision order, the supervised person must be fitted with and wear an approved electronic monitoring device, and must comply with all reasonable directions in relation to the maintenance and recharging of the monitoring device and associated equipment.

7.If during the operation of the non-custodial supervision order the treating team observes any deterioration in the supervised person's mental state, he may be transferred to the Cowdy Ward and/or the Joan Ridley Unit at the Royal Darwin Hospital for treatment without need for any other or further order.

8.In conformance with s 43ZF of the Criminal Code, during the operation of the non-custodial supervision order a member of the Northern Territory Police Force may apprehend the supervised person if that member suspects on reasonable grounds that the supervised person is failing or has failed to comply with a condition of the order, the safety of the supervised person is at risk, or the safety of the public is at risk.

9.The appropriate person is to file and serve a report pursuant to s 43ZK of the Criminal Code by the close of business on 7 May 2021.

10.The matter is listed for mention at 9 am on 14 May 2021.

11.The parties have liberty to apply.

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