The Queen v Murray Cameron Smith [No 2] - [2013] ACTSC 136

THE QUEEN V MURRAY CAMERON SMITH [No 2]
[2013] ACTSC 136 (9 July 2013)

CRIMINAL LAW – general matters – criminal liability and capacity – accused found not guilty by reason of mental impairment – whether order needs to be made – what orders can be made – no order made
MENTAL HEALTH – legal proceedings by and against mentally ill and other protected persons – accused found not guilty by reason of mental impairment – whether order needs to be made – what orders can be made – no order made

Crimes Act 1900 (ACT), ss 321, 323
Crimes Amendment Act 1994 (ACT)
Crimes (Sentencing) Act 2005 (ACT), s 8
Mental Health (Forensic Procedures) Act 1990 (NSW), s 39
Mental Health (Treatment and Care) Act 1994 (ACT), ss 26, 28, 36

Explanatory Memorandum, Crimes (Amendment) Bill 1994

R v Coleman [2010] NSWSC 177
R v Smith [2012] ACTSC 146.

EX TEMPORE JUDGMENT

No. SCC 294 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 9 July 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 294 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
v
MURRAY CAMERON SMITH

ORDER

Judge:  Refshauge J
Date:  9 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. No further order be made in relation to this matter

THE FACTS

On 24 August 2012, I declared under s 321 of the Crimes Act 1900 (ACT) that the accused, Murray Cameron Smith, was not guilty of arson by reason of mental impairment. That section of the Crimes Act required me to do so because Mr Smith had entered a plea of not guilty of that charge by reason of mental impairment.
The prosecution had agreed to the entering of the verdict, and I had considered the verdict to be appropriate.
Mr Smith had set fire to a jumper hanging in his wardrobe in the room of the house in which he lived, and the fire spread to the house.
The facts and the details of Mr Smith’s mental impairment are set out in my reasons for judgement: R v Smith [2012] ACTSC 146. I do not need to repeat that material but incorporate it in these reasons so far as is necessary.
Following the parties’ submissions, I considered, for reasons set out in my reasons for judgement, that I could and should proceed under s 323 of the Crimes Act and require Mr Smith to submit to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) to enable it to make recommendations as to how I should deal with Mr Smith.
Thereafter, s 323 of the Crimes Act provides that, after considering the recommendation of the ACAT, I may either:
·     detain Mr Smith in custody until the ACAT orders otherwise;
·     order that Mr Smith submit to the jurisdiction of the ACAT to enable it to make a mental health order; or
·     make any other order I consider appropriate.

THE RECOMMENDATIONS OF THE ACAT

ACAT held an inquiry on 11 October 2012, and published its recommendations on 11 June 2013. I do not know what the cause of the delay was, though I am aware that, like this court, the ACAT has a heavy hearing list.
ACAT had a comprehensive and detailed report from a clinical psychologist, Ms Kylie Betts, which was attached to the ACAT’s recommendation. It also considered the material that the court had considered.
It set out the contact that the ACAT had had with Mr Smith since 4 March 2011, when Mr Smith was referred by the ACT Magistrates Court to ACT Mental Health and was detained under the emergency detention powers of the Mental Health (Treatment and Care) Act 1994 (ACT). Subsequently, a psychiatric treatment order was made, but on 1 September 2011, the ACAT decided not to renew it.
Having considered the material before it from the October 2012 inquiry, the ACAT found that Mr Smith was not a person in respect of whom it could, at the time, make a mental health order.
As I have noted above (at [6]), one of the options available to me under s 323 of the Crimes Act is to order Mr Smith to submit to the jurisdiction of the ACAT in order to make a mental health order. If I were to so do, the ACAT would conduct an updated assessment to determine whether it could make a mental health order at this time. This would assess whether Mr Smith continued to engage with the requirements of his appropriate treatment, whether there had been a change in any mental state, and whether the criteria for making a mental health order were met.
The ACAT recommended, however, that “absent a change in circumstances” it was unlikely that a mental health order could be made.

Accordingly, the ACAT advised:
In the circumstances, the Tribunal recommends that the Court consider making no order in relation to Mr Smith or in the alternative, an order that Mr Smith submit to the jurisdiction of the Tribunal to enable it make a mental health order.
Despite the apparent oddity of the alternative order recommended in light of what the ACAT earlier had said, it explained that this alternative order, if made, “would at least allow the Tribunal to confirm that ACT Mental Health Services continue[s] to treat and monitor Mr Smith’s mental health.”
POWERS OF THIS COURT UNDER SECTION 323 OF THE CRIMES ACT
Mr Smith now appears before me for me to make an order under s 323 of the Crimes Act; if I am so minded, I may make any order I consider appropriate. That is a very wide power, apparently, but it is entirely unclear what the boundaries of it are.
I have already suggested that this power would not permit me to make an order under the Crimes (Sentencing) Act 2005 (ACT): see R v Smith at [68]. Those orders can only be made on a finding of guilt or a conviction (see Crimes (Sentencing) Act s 8), neither of which applies in these circumstances.
FACTORS TO BE CONSIDERED
Community Safety
A similar power exists under s 39 of the Mental Health (Forensic Procedures) Act 1990 (NSW), but so far as I can tell, there has not, in that jurisdiction, developed jurisprudence which explores the limits or nature of such orders.
My attention has also been drawn to the decision of R v Coleman [2010] NSWSC 177 at [69]-[79], in which Hall J considered the rationale for the detention of persons under that section.
His Honour considered that the safety of the community was the central issue. That decision has been referred to a number of times subsequently.
In considering how I should proceed, it seems to me that this is one of the very important factors that I need to consider.
Likelihood of self-harm or harm to others and compliance with treatment
Another important factor is suggested by the reference in the section to the ACAT making a mental health order.
The issue in respect of the making of a mental health order is whether a person who is suffering a mental illness is likely to harm himself or herself or others, or is likely to suffer a deterioration in their mental health unless a mental health order is made, where that person refuses or is unable to consent to the appropriate treatment: see Mental Health (Treatment and Care) Act ss 26, 28, 36. These matters, perhaps, give a general clue to the approach I should take to the disposition of these proceedings.
This is, perhaps, underlined by the commentary on s 323 of the Crimes Act and the Explanatory Memorandum of the Crimes (Amendment) Bill 1994 (which became the Crimes Amendment Act 1994 (ACT)) which inserted the provision, though it has since been renumbered. The Explanatory Memorandum was helpfully provided by Mr J Robertson, who appeared for Mr Smith.
Though generally only a summary of the section, it did add (at 7) that:
The Court is to have regard to the Tribunal’s recommendations, as well as to the health and safety factors and danger to the community if a person is released.
As to dangerousness, Ms Betts, the psychologist, records a structured risk assessment of Mr Smith that she completed. Ms Betts assessed Mr Smith in the low range for the risk of further violence. She referred to protective factors in place:
His symptoms have responded well to treatment ... and he has been compliant with medications and treatment as a voluntary client ... [H]e has established contact with Mental Health services [which he did not have at the time of the events which brought him before this court].
Ms Betts identified that there were risks because of his lack of employment and unlikely employment opportunities, his social isolation leading to loneliness, and the fact that, were his mental state to deteriorate, he would be unlikely to possess the insight to enable him to actively seek assistance.
As to these various matters, I have had some evidence which, though limited, was, in my view, sufficient for my purpose.
Criminal History
Mr Smith’s criminal record was tendered. It shows an offence of possession of cannabis in 1979. I was told that there was one other similar offence in early 2011 associated with the charge of arson.
Despite the principal offence of arson, these other offences do not suggest, by themselves or together, that there is a risk to the safety of the community from Mr Smith, particularly as he is now engaged with the mental health system.
Nothing else was put to me to suggest that this was a case where he should be detained for any period in the particular circumstances.
Clinical History
I also had tendered the clinical notes which confirmed that since October 2012, Mr Smith has had regular contact with the mental health system, and has been consulting with a psychiatrist regularly.
The last consultation was on 23 May 2013 when Dr Saba Javed noted that Mr Smith was on time, had seen his general practitioner since his last review, had a good mood, was not smoking cannabis, was not using other drugs, and was not consuming alcohol. He also noted that his psychosis was in remission, that he was continuing on his current medication, and that he had some insight, and his judgment was reasonable. I was told that he was to see Dr Javed in August.
It seems to me that there is no utility in referring Mr Smith back to the ACAT for it to consider whether to make a mental health order.
On the evidence before me, and in the circumstances of the Act under which such an order is made, the ACAT is not going to make such a mental health order. That it will assess his position in a month or so does not seem to me to be particularly relevant since he is going to see Dr Javed in August. Thereafter, the ACAT will have no further role in monitoring Mr Smith or his treatment unless the mental health professionals with whom he interacts identify some risk either by a deterioration in his mental health or by his refusal or failure to comply with the treatment regime. I assume that the mental health system will do such monitoring as is necessary to ensure that Mr Smith does remain compliant with his mental health regime, takes his medication, and attends as necessary. And if that does not continue, it will bring to the attention of the ACAT, that matter, if a mental health order is required.
I have had careful regard to the recommendation of the ACAT and all the material that has been provided before me.
DISPOSITION
In the circumstances of the case, I propose that no further order is necessary.
Accordingly, I direct that there be no further order in relation to this matter.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013

Counsel for the Crown:  Mr K Lee
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:   Mr J Robertson
Solicitor for the defendant: Legal Aid ACT
Date of hearing:  9 July 2013
Date of judgment:  9 July 2013