The Queen v GK (No 2) - [2022] NTSC 44

CITATION:The Queen v GK & Anor (No 2) [2022] NTSC 44
PARTIES:THE QUEEN

v
GK
And
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF HEALTH

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21914404
DELIVERED:  10 June 2022
HEARING DATES:  7, 8, 13 December 2021; 1, 15 March 2022; 13 May 2022
FURTHER WRITTEN
SUBMISSIONS:  13, 20 May 2022

JUDGMENT OF: Blokland J
CATCHWORDS:

MENTAL HEALTH – Forensic patient – Non custodial supervision order - Application to convert to custodial supervision order – Whether care in remote community satisfactory in terms of public safety – Less restrictive care appropriate and available – Criminal Code Act 1983 (NT) s 43 – Part IIA

REPRESENTATION:

Counsel:
Crown:J McBride/ G Dooley/ S Thomas
Supervised Person:T Collins
CEO:C McGrath/ E Farquhar/ L N Ha
Solicitors:
Crown:Office of the Director of Public Prosecutions
Supervised Person:  North Australian Aboriginal Justice Agency
CEO:Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  BLO2202
Number of pages:  30

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v GK (No 2) [2022] NTSC 44

No.21914404
BETWEEN:

THE QUEEN

AND:

GK

AND:

CHIEF EXECUTIVE OFFICER, DEPARTMENT OF HEALTH

CORAM: BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 10 June 2022)
Background and Procedural History

On 15 April 2021 the Court ordered GK be subject to a non-custodial supervision order (NCSO) under Part IIA of the Criminal Code 1983 (NT) ‘Criminal Code’. Initially, a custodial supervision was sought by the Chief Executive Officer of the Department of Health.[1]
In brief, the terms of the NCSO ordered on 15 April 2021 required GK to remain under the care of, and receive treatment from the Chief Executive Officer and staff of the Department of Health and the Urapuntja Health Service, who together were referred to in the NCSO as ‘the treating team’.
During the operation of the NCSO, GK was to:
a)    comply with all reasonable directions of the treating team;
b)    receive and take all medications prescribed by his treating team and submit to all blood tests and other medical examinations that may be ordered by his treating team as adjuncts to those medications;
c)    participate to the best of his ability in appointments, assessments, therapy, counselling, and positive behaviour and psychoeducational interventions, offered and recommended by the treating team;
d)    he must not purchase, possess or consume alcohol, cannabis or any dangerous drug or volatile substance and must comply with any reasonable directions given to him by the treating team to ensure compliance with this condition including random or scheduled testing for alcohol or illicit substances;
e)    reside at Boundary Bore Utopia or as approved by the treating team;
f)     not contact MB or her children directly or indirectly; and
g)    not travel to Alice Springs except in a medical or dental emergency or for court appearances, or with the prior permission of and on the terms as stipulated by the treating team.
The NCSO also…

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 Queen v GK (No 2)

Details

AGLC: The Queen v GK (No 2) [2022] NTSC 44
Case: [2022] NTSC 44
Decision Date: 10 June 2022

CaseChat Overview and Summary

The Queen v GK (No 2) involved a forensic patient, GK, who was subject to a non-custodial supervision order (NCSO) and an application to convert it to a custodial supervision order. The primary concern was whether the care GK received in a remote community was satisfactory in terms of public safety and if less restrictive care was appropriate and available. This case was heard in the Northern Territory Supreme Court.

The legal issues that the court needed to decide were whether the breaches of the NCSO by GK were serious enough to warrant a custodial supervision order and whether the care provided to GK in the remote community was satisfactory in terms of public safety. The court also had to consider whether less restrictive care was appropriate and available to GK, as per section 43 of the Criminal Code Act 1983 (NT) and Part IIA.

The court found that GK had breached his NCSO on several occasions, but the totality of the evidence suggested that he should be released on an appropriate non-custodial supervision order. The court acknowledged that there had been less than ideal compliance with the NCSO and that the Urapuntja clinic was not within the Northern Territory Department of Health's supervision. However, the court also noted that there were periods of regular compliance and that the distance between GK's residence and Alice Springs provided some protection. The fact that the Urapuntja health service had more recently confirmed assistance with his medication regime, with assistance from the remote health team, indicated appropriate management of the risk in the community.

The court decided that the appropriate course of action was to continue GK's non-custodial supervision order, with the understanding that the Urapuntja health service and GK's family would continue to cooperate in ensuring his compliance with the order. The court did not find it necessary to convert the NCSO to a custodial supervision order, as the evidence suggested that GK could be managed appropriately in the community with the support of his family and the Urapuntja health service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no significant dispute between the parties about the principles to be applied. Further discussion of the evidence and submissions When the non-custodial supervision order was originally made, substantial reliance was placed on the cooperation of GK’s family in the Utopia region and the cooperation of the Urapuntja health service to ensure he received his medication and importantly was not in breach of the non-custodial supervision order. While there have been some breaches of the order, I am satisfied as result of the evidence currently before the Court that there is greater knowledge and understanding by the Urapuntja Aboriginal Corporation and the Urapuntja health service of the nature of the Court orders and support for GK, which includes giving him assistance to comply with any order. The following breaches were alleged in these proceedings:a. Residing at Mosquito Bore in breach of condition 3(e) of the NCSO dated 15 April 2021;b. Cannabis usage, confirmed via positive Urine Drug Screen taken on 3 September 2021, in breach of condition 3(d) of the NCSO;2 c. Undated and unknown number of attendances at Alice Springs prior to 14 October 2021 in breach of condition 3(g) of the NCSO;3 d. Attendance at Alice Springs and interaction with Maureen Braedon on 20 October 2021 in breach of conditions 3(g) and (f) of the NCSO;4 ande. Attendance at Alice Springs on 27 October 2021 in breach of condition 3(g) of the NCSO. In my view, with regard to breach (a), although proven, this was previously dealt with by the Court by varying the NCSO to deal with the reality of GK staying in different places within the Utopia region, yet well away from Alice Springs. Currently, this breach is of marginal relevance, if any. In relation to (b), cannabis use was proven by the urine drugs screen. It is fair to infer that GK has from time to time had access to cannabis which is harmful in the context of his mental state and may contribute to its deterioration. In terms of (c), the “undated and unknown number of attendances in Alice Springs”. This allegation is too vague to act on in these proceedings, bearing in mind the burden of proof that is on the Chief Executive Officer of the Department of Health which engages the Briginshaw principles. However, clearly GK did attend Alice Springs on 20 October 2021 and 27 October 2021 and had the interaction with MB described above on the 20th of October 2021. I find breaches (a), (b), (d) and (e) proven. Of those, (d) and (e) are in a relatively serious category as the victim became apprehensive, however GK did not commit any violent act towards MB. The conduct which constitutes the breaches must be seen against the background of periods of general compliance over a relatively lengthy period, including previous compliance with bail. There have been previous breaches which are a risk to GK’s own health and potentially elevate the risk to MB if he does not comply with his medication regime. From 15 July 2020 until 6 August 2020 he suffered a relapse as a result of a failure to take medication. However, in my view, the totality of the evidence points to the conclusion that he should be released on an appropriate non-custodial supervision order. A number of fair points have been made by counsel for the Chief Executive Officer of the Department of Health. First, that there has been less than ideal compliance with the non-custodial supervision order and second that the Urapuntja clinic is not within the Northern Territory Department of Health’s supervision. Balanced against this is the fact that there are also periods of regular compliance and the distance between GK’s residence and Alice Springs provides some protection. The fact that the Urapuntja health service has more recently confirmed assistance with his medication regime, with assistance from the remote health team, all point to appropriate management of the risk in the community.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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