The Queen v KMD (No 5)

Case [2022] NTSC 69

CITATION:The Queen v KMD & Ors (No 5) [2022] NTSC 69

PARTIES:THE QUEEN

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:  2 September 2022

HEARING DATES:  15 November 2021, 16 March 2022

ADDITIONAL WRITTEN               

SUBMISSIONS:  23 March, 1 April, 8 April 2022

JUDGMENT OF:  Brownhill J

CATCHWORDS:

CRIMINAL LAW – Mental impairment – Part IIA of the Criminal Code 1983 (NT) – Periodic review under s 43ZH(2) of the Criminal Code – Court not satisfied on current evidence of ‘serious risk’ posed by supervised person if released on a non-custodial supervision order – Further reports ordered pursuant to s 43ZN(2)(a)(i) regarding option of non-custodial supervision – Periodic Review not complete within s 43ZH until these reports have been received.

CRIMINAL LAW – Mental impairment – Part IIA of the Criminal Code – Periodic review under s 43ZH(2) of the Criminal Code – Supervised person had been found not guilty by a jury because of her mental impairment – Power of court conducting periodic review limited to s 43ZH considerations – Not permissible to revisit the jury’s decision.

CRIMINAL LAW – Mental impairment – Part IIA of the Criminal Code – Periodic review under s 43ZH(2) of the Criminal Code – Supervised person submitted that the assessing psychiatrists were biased or acted on flawed factual assumptions – Submission not found to be substantiated.

CRIMINAL LAW – Mental impairment – Part IIA of the Criminal Code – Periodic review under s 43ZH(2) of the Criminal Code – Supervised person submitted Part IIA of the Criminal Code is invalid on the grounds it is repugnant to the Constitution or otherwise unlawful – Submissions rejected.

Australian Constitution

Criminal Code Act 1983 (NT) s 43A, s 43ZG, s 43ZH, s 43ZI, s 43 ZK, s 43ZL, s 43ZM, s 43ZN, s 43ZO.

Juries Act 1962 (NT) s 6

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Briginshaw v Briginshaw (1938) 60 CLR 336; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; McGarry v The Queen (2001) 207 CLR 121; Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; The Queen v KMD [2015] NTSC 31; The Queen v KMD (No 2) [2017] NTSC 18; The Queen v KMD (No 3) [2017] NTSC 95; The Queen v KMD (No 4) [2021] NTSC 27; The Queen v RK [2019] NTSC 67, referred to.

NOM v Director of Public Prosecutions (Vic) (2014) 36 VR 618; Nigro v Secretary, Department of Justice (2013) 41 VR 359; NJE v Secretary, Department of Justice (2008) 21 VR 526, distinguished.

REPRESENTATION:

Counsel:

Crown:N Papas QC, L Payne

Supervised Person:  N Vadasz until 20 December 2021, then self-represented

CEO Department of Health:        R…

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AGLC
The Queen v KMD (No 5) [2022] NTSC 69
Case
[2022] NTSC 69
Decision Date

CaseChat Overview and Summary

In the case of The Queen v KMD (No 5), the primary dispute concerned the periodic review of KMD under Part IIA of the Criminal Code 1983 (NT). The court was tasked with determining whether KMD, who had previously been found not guilty by reason of mental impairment, posed a serious risk if released on a non-custodial supervision order. The case involved multiple submissions from both KMD and the CEOs, with evidence provided by Dr. Mrigendra Das, a Consultant Forensic Psychiatrist. The evidence included various reports, letters, and affidavits, which were integral to the court’s assessment.

The legal issues before the court included whether the court could revisit the jury’s decision of KMD's mental impairment, the validity of Part IIA of the Criminal Code, and the potential bias or flawed assumptions of the assessing psychiatrists. Additionally, the court had to decide whether the periodic review could be considered complete without further reports on the option of non-custodial supervision. The court also considered KMD's argument that she did not suffer from a mental illness as she had not deteriorated since her arrest in May 2013.

The court found that it could not revisit the jury’s decision on KMD's mental impairment and that the periodic review was not complete until further reports had been received. The court rejected KMD's submissions regarding the bias or flawed assumptions of the assessing psychiatrists and the validity of Part IIA of the Criminal Code. Dr. Das's evidence was deemed reliable, and KMD's argument about her mental state was not substantiated. The court concluded that KMD’s mental condition could deteriorate without treatment and that her delusional system could become resistant to treatment over time.

The court ordered that further reports be obtained to complete the periodic review and to assess the option of non-custodial supervision for KMD. The court emphasised that KMD's engagement with mental health professionals and potential medication would be essential for a reassessment of risk and its management.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Reports dated 30 July 2021 (‘Exhibit SO46’), 1 March 2022 (‘Exhibit SO47’) and 9 March 2022 (‘Exhibit SO48’) were received from Dr Mrigendra Das. Dr Das is a Consultant Forensic Psychiatrist and forms part of the Forensic Mental Health Team (‘FMHT’) within the Top End Mental Health Service (‘TEMHS’), a work division within the Department of Health. He has been assigned as KMD’s treating psychiatrist since December 2016 and has been providing the Court with reports pursuant to s 43ZK since April 2017. Dr Das gave oral evidence at the hearing on 15 November 2021, where he was cross-examined by counsel engaged by KMD. Dr Das also gave oral evidence at the resumed hearing on 16 March 2022, where he was cross-examined by KMD (after she had discharged her counsel).Other evidence received Three letters were received from Mission Australia about their Community Wellbeing & Healing Program (‘Exhibit SO49’). Exhibit SO48 contains Dr Das’s opinions about these services. These matters are addressed in paragraphs [52] to [55] below. An affidavit made by the General Manager of the Darwin Correctional Precinct on 1 March 2022 was read into evidence. It stated that, on 29 October 2021, KMD was the victim of an act of violence against her by another female prisoner (‘EM’). EM walked past KMD and hit the bottom of a cup which KMD was drinking from at the time, causing a cut to KMD’s lip. KMD was seen by medical staff as a precaution, but did not (it appears) receive any medical treatment for the cut. This was put by KMD as an example of the acts of violence and hostility faced by her in custody, and is referred to further in paragraph [81] below. Submissions received The CEOs relied on the written submissions filed on their behalf on 15 January 2021 and put to Hiley J in R v KMD (No 4), supplemented with oral submissions which referred to the evidence before the Court on this periodic review. KMD provided to the Court five sets of written submissions and supporting documents on 16 March, 23 March, 1 April, 8 April and 27 June 2022. The first set was in five parts (headed ‘Overview’, ‘Applied Logic’, ‘The NTA ad verecundiam false dilemma vicious circle’, ‘Extent of Injury’ and ‘The Grief Process’) totalling 328 pages. Attached to those submissions were various documents including copies of extracts from Hansard relating to the Bill that introduced Part IIA into the Criminal Code, extracts from a book called Toxic Psychiatry, extracts from an Ombudsman’s Investigation Report into the Alice Springs Correctional Centre called Women in Prison II, articles regarding unfitness to stand trial and numerous items of correspondence, forms and photographs, totalling a further 234 pages. The second set comprised various documents including newspaper articles, extracts from Toxic Psychiatry, extracts from some of the psychiatrists’ reports received in this matter, extracts from some of the decisions of the Court in this matter and correspondence and forms. The third set comprised a five page letter from KMD to the Court, essentially correcting some errors in the first set of submissions, as well as copies of various authorities and articles KMD intended to include with the first set. The fourth set comprised a 10 page letter from KMD to the Court and copies of a letter written by KMD to NAAJA and a number of prisoner notes or prisoner request forms, relating to KMD’s issues with her use of a laptop provided by Community Corrections and to KMD’s concerns about preservation of the confidentiality of the footage of the SARC interview referred to in paragraphs [37] to [40] below. The fifth set comprised a 2 page letter from KMD setting out some corrections to the first set of submissions and various documents including extracts from articles.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In cross-examination, Dr Das said that engagement with KMD would require her discussing with the FMHT her mental state, her ‘inner mental world’, and treatment options. He said she could have a good level of engagement, even if she were to refuse medication. Such engagement would include engaging in a therapeutic process with a psychologist and, if she wished, an Aboriginal mental health worker. He said engagement of this kind was essential for a different assessment of risk and consideration of its management. He said medication would be an important part of her treatment, which would be incomplete without it, but medication is not a necessary requirement of a reassessment of risk. In cross-examination, he agreed that, ultimately, KMD would ‘require’ medication and any dialogue she entered with the FMHT would ultimately come to a discussion about medication. Asked then what the point of engagement would be, Dr Das said that was for KMD to decide. In further cross-examination, Dr Das indicated that, if KMD were to engage with the FMHT as he described, even if she did not take medication, he expected that it would be possible to make an informed reassessment of risk in approximately 12 months, depending on how often that engagement occurred.Potential deterioration of conditionInitial evidence about deterioration In evidence-in-chief, Dr Das opined that people with psychotic illnesses such as delusional disorder never improve without treatment and their delusional system can linger on for years, which leads to it becoming resistant to treatment. He said the condition ‘usually gets worse’. KMD argued that the opinion of Drs Kini and Ventura from 10 November 2014 (‘Exhibit SO1’) was that, without medication, she would suffer deterioration of her condition. She argued that it must follow from the fact that she had not suffered any deterioration in her mental condition since that time, that she did not have a mental illness. In Exhibit SO1, Drs Kini and Ventura opined that without treatment, KMD was highly likely to suffer serious mental deterioration. That opinion was based on the decline in her condition which led to her offending in 2013 and the scientific literature which disclosed that untreated psychosis is associated with ‘poorer outcome in positive and negative symptoms and relapse rate’. In cross-examination at the first tranche of this periodic review hearing, it was put to Dr Das that there had not been any deterioration of KMD’s mental state since her arrest in May 2013. He answered as follows:I don’t think I can answer that question. There could have been. I do believe that she has had a decline in her mental state. She has continued to persist with her delusional ideas. I wouldn’t agree that there hasn’t been a deterioration. I do think there has and I think with passing time she has become more entrenched in her, it would appear she had become more entrenched in the belief system [and] resistance to treatment. …