Wilson v Director of Public Prosecutions
[2016] VSCA 204
•22 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0148
| CHERYL ANNE-MARIE WILSON |
| V |
| DIRECTOR OF PUBLIC PROSECUTIONS |
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| JUDGES: | REDLICH, KAYE JJA and CAVANOUGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 August 2016 |
| DATE OF JUDGMENT: | 22 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 204 |
| JUDGMENT APPEALED FROM: | [2016] VSC 426 (Emerton J) |
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CRIMINAL LAW – Bail – Show cause situation – Attempted murder – Appellant pleaded not guilty by reason of mental impairment – Appellant having established diagnosis of schizophrenia – Regular methamphetamine use and non-compliance with medication in period preceding alleged offending – Whether proposed bail condition that Health Clinic report non-compliance with medical regime desirable – Previous convictions and prior incidents involving dangerous conduct during psychotic episodes – Judge not satisfied cause shown – Judge satisfied appellant unacceptable risk of harm to others – Whether judge’s conclusions open – Whether judge erred in considering a non-custodial supervision order not likely if appellant found not guilty due to mental impairment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L Richter | Stary Norton Halphen |
| For the Respondent | Mr G Silbert SC with Ms D Mandie | Office of Public Prosecutions |
REDLICH JA
KAYE JA
CAVANOUGH AJA:
This is an appeal from a decision of a judge of the Trial Division on 26 July 2016 refusing the appellant’s application for bail pending the trial of charges against her in the Supreme Court.[1]
[1]In the Matter of an Application for Bail by Cheryl Wilson [2016] VSC 426 (‘Reasons’).
On 11 February 2016, the appellant was arrested and charged with four offences, including a charge of the attempted murder of her mother. Because of the nature of the charges against her, the appellant was required, pursuant to s 4(4)(c) of the Bail Act 1977, to show cause why her detention in custody was not justified.
The appellant, who is 48 years old, has suffered from long standing psychiatric illness. Approximately ten years ago, she was diagnosed with schizophrenia. During that period of time, she has had approximately seven admissions to public mental health facilities, the most recent of which was in 2008. Until her arrest, the appellant had been in receipt of case management from her local area mental health service, the Harvester Clinic of the Midwest Area Mental Health Service, as a voluntary patient. From 2013, her medication had consisted of an injectable depot anti-psychotic and an oral anti-psychotic drug. During the latter half of 2015, the appellant’s mother, and others, became concerned about her behaviour. She became non-compliant with her medication, and she was using methamphetamine on a regular basis. Before the alleged offending, she last received her fortnightly anti-psychotic injection on 15 January 2016, and she had not taken her oral medication since November 2015.
For some time, the appellant had been residing in a unit leased to her by the Women’s Housing Limited Division of the Ministry of Housing in Melton South. It appears that two days before the alleged offence, the appellant was visited by a staff member of the Harvester Clinic and was observed to be ‘pressured’ and ‘tangential’. Early on the day of the alleged offence, 11 February, a home visit was carried out by the psychiatric registrar of the Harvester Clinic, during which the appellant was noted to be verbally aggressive. She did not accept her depot injection. Subsequently, on the same day, the appellant visited her mother’s house, in Melton South, where she attended every day. The appellant’s mother noted that she was talking to herself in threatening terms. At about 7:50 am, the appellant’s mother told her that she needed to leave, because the mother’s partner was visiting, and he did not get on with the appellant. The appellant said that she was going to the toilet, but she came up behind her mother, grabbed her hair, and twice cut her throat with a knife with a serrated edge which it is alleged she had just taken from the kitchen in her mother’s home. She then came to the front of her mother and stabbed her in the throat. Her mother resisted and the appellant tried to stab her again.
The appellant then left her mother’s house, and walked home. She was arrested en route to her home, and was found to have a kitchen knife (which was not the knife used in the alleged offence) and two alcohol wipes in her bag. She was then mumbling and not making any sense. At the police station, she was found unfit for interview.
After her arrest, the appellant was detained in the Marrmak Mental Health Facility at the Dame Phyllis Frost Centre until 21 April 2016. Over that period, her condition improved substantially, and she was released into the mainstream prison. Since then, she has remained compliant with her medication and with attending appointments.
On her application before the primary judge, the appellant submitted that she had shown cause justifying her release on bail, based on the following matters:
(a) The appellant’s mental health had stabilised while in custody and she was now compliant with her medication.
(b) The appellant has not failed to answer bail for more than 15 years.
(c) The appellant had not been convicted of an offence involving serious violence since January 1994.
(d) The appellant has stable accommodation available to her, and she is at risk of losing her long term residence, in the unit provided by the Ministry of Housing, if she does not return to continue her tenancy.
(e) The appellant was prepared to adhere to strict bail conditions, including requirements that she report to police and comply with treatment.
(f) If the appellant is found not guilty of the offences charged because of mental impairment, it would be open to the sentencing judge to impose a non-custodial supervision order. The prospects of such an order being made would be diminished if she were not released on bail, particularly because, in such circumstances, she would lose access to the stable accommodation that would otherwise have been available to her.
(g) There was likely to be some delay in the hearing and determination of the charges against the appellant.
Evidence on application
In support of her application, the appellant relied on the evidence of Associate Professor Andrew Carroll, consultant forensic psychiatrist, who examined her at the Dame Phyllis Frost Centre on 5 May. Professor Carroll provided a report, and gave evidence before the judge. In short, Professor Carroll expressed the view that the appellant’s severely disturbed mental state on the day of the offending was due to a relapse of her schizophrenia, rather than being a drug induced psychosis. He considered that the appellant was unable to reason with a moderate degree of sense and composure that her conduct was wrong, due to her persecutory delusions and associated hallucinations. Accordingly, a defence of mental impairment was open to the appellant. Professor Carroll considered that, on the day on which he examined the appellant, her mental state was stable with no current mood or psychotic symptoms, and that she then had excellent insight into her mental health problems. The management of the appellant’s mental health in custody appeared to have been excellent, and she was in receipt of regular monitoring and appropriate medication.
On the hearing of the application before the judge on 26 July, Professor Carroll gave evidence that he had seen the appellant again that morning, and that she remained well. She was completely free of any mental state disturbance, and continued to demonstrate good insight into her mental illness. The appellant accepted and understood the need for ongoing medication, and she also understood that the use of illicit drugs would likely cause a major disturbance in her mental health. The two main risk factors, relevant to the appellant, were a failure to comply with medication and any use by her of methamphetamine. Professor Carroll noted that the Forensicare team at Dame Phyllis Frost Centre had liaised with the Midwest Area Mental Health Service, and he stated that if the appellant were released from prison, she would need to go straight into active community based mental health care.
In cross-examination, Professor Carroll expressed the view that the appellant’s mother had been the victim of her attack, because, at that time, she was continuing to try to persuade the appellant to abstain from the use of drugs, and to comply with her medication regime. It was for that reason that Professor Carroll thought that the appellant’s mother had been the subject of the appellant’s hostility on the day of the offending. He understood that, if the appellant were released, she would be living approximately 400 metres from her mother, but her mother would not be involved in seeing her every day, and thus she would be less likely to precipitate any further hostility by the appellant towards her. Professor Carroll noted that methamphetamine can trigger psychotic episodes, and he said that the threshold for becoming psychotic is lower for persons who already have a diagnosis of schizophrenia, such as the appellant.
Dr David Finn, the clinical director of the Midwest Area Mental Health Service, also gave evidence before the judge. Dr Finn stated that if the appellant were released on bail, she would have an appointment at the Harvester Clinic in Sunshine at midday on the following day. At that time, the appellant would be assessed by one of the consultant staff of the clinic to determine whether she met the criteria for detention under the Mental Health Act 2014. Dr Finn noted that the appellant had expressed an interest in signing an ‘advance statement’ to the Clinic authorising the service to contact the police if she refused treatment.
In cross-examination, Dr Finn stated that on assessment by the Harvester Clinic, if the appellant were deemed not eligible to remain under a treatment order, she would become a voluntary patient, and she would make her own decisions about her treatment. Dr Finn also stated that the usual purpose of an advance statement is to ensure that the clinic is able to continue with the patient’s medication regime when the patient becomes too unwell to be able to make rational decisions about his or her treatment. He expressed some concern about the proposal to use an advance statement by the appellant as a pre-existing authority by her for the medical practitioner to advise police if she became non-compliant, because such a permission might conflict with the medical practitioner’s important obligation of confidentiality to the patient. He explained that the principle of confidentiality is most important to medical practitioners to enable them to build rapport and relationships with their patients in the best interests of the patient.
An ‘advance statement’ is a statement made under Division 3 of Part 3 of the Mental Health Act 2014. According to s 19 of that Act, an advance statement is a document that sets out a person’s preferences in relation to ‘treatment’ (a defined term) in the event that the person becomes a ‘patient’ (another defined term). ‘Treatment’ is defined in s 6 of the Act. So far as relevant, s 6 provides that, for the purposes of the Act, a person receives treatment for mental illness if things are done in the course of the exercise of professional skills to remedy the person’s mental illness or to alleviate the symptoms and reduce the ill effects of the person’s mental illness. ‘Patient’ is defined in s 3 to mean a compulsory patient, a security patient or a forensic patient.
The advance statement referred to by Dr Finn in his evidence was to be addressed to the Harvester Clinic and would have purported to authorise the clinic to contact the police if the appellant refused treatment. Dr Finn agreed with a suggestion from the appellant’s counsel that the proposed advance statement would be ‘in line’ with the principle stated in s 11(c) of the Mental Health Act 2014, being a principle to the effect that patients should be involved in decision making about their assessment, treatment and recovery and that their views and preferences should be respected. However, it may be doubted whether an authorisation of the proposed kind (relating to the notification of the police) is capable of constituting, or of being included in, an ‘advance statement’ within the meaning of the Act. In any event, as Dr Finn agreed, such a statement could be revoked by the appellant at any time while she remained mentally well.
The other witness called on behalf of the appellant was Mr Kenneth Hughes, a neighbour and friend of the appellant. Mr Hughes stated that if the appellant were released from custody, he would provide all the support to her that he could by driving her to her appointments, and assisting her to meet the conditions of her bail. He said that he would contact the police, if he became aware that the appellant had ceased to take her medication. He said that he would see the appellant on a daily basis, and he would report to the police, if it came to his notice that the appellant was using drugs.
In addition, the appellant relied on a letter from Rent Housing Limited stating that if she were incarcerated past July, her tenancy would be at risk, and she would lose her home. On the hearing of the application, the judge was told that that organisation had extended the deadline for the appellant to resume her residence in her unit to 13 August. Counsel for the appellant also tendered a letter from the Australian Community Support Organisation (ACSO) confirming that the appellant had been linked with the program provided by that organisation for women who had been diagnosed with a mental health illness. The letter stated that when the appellant is released from custody, ACSO would be able to provide support to her in the community for a six week period, provided that she continued to engage with the program.
In response to the application by the appellant, the respondent filed materials concerning the circumstances of the alleged offence, and the appellant’s background. Relevantly, the appellant has a long list of criminal convictions. As noted by the judge, although the appellant had not been convicted of any offence involving violence since 1994, nevertheless there were a number of other matters in her record which were cause for significant concern.
In January 1994, the appellant was convicted by the Moe Magistrates’ Court of one charge of recklessly causing serious injury. She was sentenced to 18 months’ imprisonment, which was wholly suspended for a period of 18 months. That offence occurred when the appellant stabbed the father of her eldest two children in the chest. In December 1998, the appellant was convicted by Sunshine Magistrates’ Court of being on court premises in possession of an offensive weapon in October 1997. In January 2013, she was again convicted of possessing an offensive weapon on court premises. Two years later, in July 2015, she was again arrested for carrying a knife into Sunshine Magistrates’ Court, and she was convicted of that offence in January 2016.
On 6 August 2007, the appellant’s house burned down in circumstances in which it was suspected that an act of arson had taken place. Two days later, the appellant accused her mother of hiding her twin boys, who had died in a house fire in 1994. The appellant repeatedly told her mother, ‘I will cut your throat, I will burn your house down’. She was restrained by her stepfather, and, after her arrest, she was remanded in custody for a period of seven weeks. The appellant’s mother later withdrew her complaint and, consequently, the charges against the appellant were struck out at the Sunshine Magistrates’ Court in September 2007.
In September 2008, the appellant attended the Shell petrol station in Melton intending to purchase petrol in plastic containers that did not comply with the store safety policy. When informed by the console operator that she could not take fuel in those containers, she threatened to kill the attendant. She then grabbed a jerry can from the store, filled it with petrol, walked back into the store, and poured the fuel all over the ground, yelling ‘If you don’t call the police I’m going to blow this place up’. The appellant was then holding a cigarette lighter in her hand. As a result of that incident, the appellant was charged with a number of offences, including reckless conduct endangering life, arson and extortion. Ultimately, the charges were discharged due to the appellant’s mental impairment.
Reasons for judgment
In her reasons for judgment, the judge noted the matters pertaining to the appellant’s mental health issues, and relating to her background, including her criminal history, outlined above. The judge noted the evidence given by Dr Carroll, that the appellant was in complete remission from schizophrenia and that her mental state was then stable. Her Honour also noted that, according to Dr Carroll, if bail were granted, it would be appropriate for the appellant to attend for ongoing mental health treatment with the local area mental health service, and that it would be essential for the courts to liaise with her visiting team at the prison to ensure that the appellant would be linked with her community based team. The judge also took into account the evidence given by Dr Finn, and the letter provided by ACSO. Her Honour accepted that the matters highlighted by Dr Carroll as being appropriate, if the appellant were granted bail, were in place or in the process of being put in place. Nevertheless, the judge was not persuaded that the appellant had shown cause.
In particular, the judge considered that the delay involved in dealing with the charges had not been, and did not threaten to be, inordinate. Further, her Honour noted that a number of the appellant’s ‘show cause’ arguments were based on the proposition that the appellant might be released back into the community on a non-custodial supervision order, if she were to succeed in her defence of mental impairment at trial. Her Honour stated:
Without wishing to second guess expert opinion as to the risk presented by the applicant, I also consider it to be unlikely that a non-custodial supervision order will be imposed at the outset, given the diagnosis of schizophrenia, the catastrophic consequences of the applicant’s psychotic episodes in the past, her history of non-compliance with medication, her history of substance abuse and the nature of the alleged offending itself, involving as it does the ongoing concerns for the safety of her mother.[2]
[2]Reasons [31].
The judge thus considered that it was more likely that a custodial supervision order would be imposed initially, at least for a short period of time. Her Honour also considered that the appellant’s accommodation was not optimal for the purposes of reducing the risk that the appellant might relapse into the use of drugs. In particular, she would be regularly exposed there to people from whom she had acquired methamphetamine in the past. Additionally, the judge considered that the appellant would then be living too close to her mother, who was (understandably) in fear of the appellant. Further, in light of the episodes in 2007 and 2008 involving the appellant, the judge did not consider that the appellant’s record of answering bail, and the claimed absence of violent offending by her since 1994, were sufficient to establish cause why the appellant should not be detained in custody.
The judge further considered that if the appellant were to be granted bail to return to her flat, there would be an unacceptable risk of harm to her mother and, possibly, to other members of the community. Her Honour observed that the appellant’s past psychotic episodes had led to particularly dangerous behaviour by her. The appellant had abused methamphetamine over a protracted period during the last year, and, as a consequence, she had failed to comply with her medication regime.
The judge then referred to the bail conditions proposed by the appellant, should she be released on bail. They included fortnightly drug testing by the Harvester Clinic, and authorising that clinic to contact the police if the appellant refused treatment or failed to submit to drug testing. The judge was not persuaded that those conditions would sufficiently reduce the risk that she would harm others while on bail, particularly because of the evidence that the use of methamphetamine by the appellant can bring on psychotic episodes very quickly, even when she was taking anti-psychotic medication. The judge was concerned that the appellant might relapse into abusing drugs, which would precipitate a drug induced psychosis. The judge concluded:
In my view, the applicant would need very close monitoring and supervision if released on bail. She would also need to be well entrenched in a drug rehabilitation program. I am not persuaded that such circumstances exist.
In the circumstances, I have formed the view that there is an unacceptable risk that the applicant will again become non-compliant with her medication. This makes her an unacceptable risk of causing harm to others and of re-offending.[3]
[3]Reasons [41]–[42].
Grounds of appeal
In this appeal, the appellant relied initially on three grounds of appeal, namely:
Ground 1: That the learned primary judge erred in finding that cause was not shown.
Particulars
(i)failing to have proper regard to the availability of a full defence in her assessment of the Crown case; and
(ii)finding that it was much more likely that a custodial supervision order will be imposed; and
(iii)that a custodial supervision order equates to a custodial sentence.
Ground 2: That the learned primary judge erred in determining that there was an unacceptable risk that the applicant would cause harm to her mother and possibly to other members of the community.
Particulars
(i)it was not reasonably open to the learned primary judge on the evidence before her to make that finding.
Ground 3: That the learned primary judge erred in refusing to grant the application for bail.
Particulars
(i)it was not reasonably open to the learned primary judge on the evidence before her to refuse to grant the application for bail.
On the day of the hearing of the appeal, the appellant, by leave, added three further grounds, namely:
Ground 1A: That the learned primary judge erred in finding that ‘a number of the applicant’s show cause arguments’ were based on the possibility of a non-custodial supervision order as an ultimate outcome then relied on her Honour’s assessment that a custodial supervision order was more likely to dismiss the ‘number of show cause arguments’.
Ground 1B: That the learned primary judge erred in failing to assess the show cause factors argued for as a combination of factors, and instead assessed each severally, finding them individually, or in discrete categories, to fail to show cause.
Ground 2A: That the learned primary judge erred in finding that, with respect to a comparison of risk factors preceding the alleged offending to the conditions proposed to manage risk, ‘nothing has changed since then, other than that the applicant has had another psychotic episode resulting in harm to a person that could well have ended even more badly than it did’.
Additional material on appeal
On the appeal, the appellant filed further material, including a letter dated 3 August 2016 written by Ms Shehanie Aban, the assistant manager, Tenancy and Property Team, Brimbank Melton area, of the Department of Health and Human Services. In that letter, Ms Aban approved the request by the appellant’s solicitors to extend the appellant’s temporary absence from her accommodation until 9 September next. The letter further stated that should the appellant be absent from her accommodation after that date, she might need to relinquish her tenancy.
In response, the respondent has provided further material, including a statement by Ms Aban. In that statement, Ms Aban explained that the letter was written in response to an application for an extension by the appellant’s solicitors in relation to her appeal. As the appellant was only seeking a short extension, Ms Aban used her managerial discretion to approve that extension of time. However, the appellant is not precluded from being granted any further extensions, provided that she is able to demonstrate exceptional circumstances. Ms Aban also has stated that another option available to the appellant is to relinquish her tenancy rights, and to apply for early housing under the temporary absence category six months before her expected release date. According to Ms Aban, if the appellant were absent from her property after 9 September, Ms Aban would need permission from her manager to serve a 120 day notice to vacate under the Residential Tenancies Act 1997. Thus any notice to vacate would expire around mid-January 2017. If the appellant did not vacate the premises on that date, the Department would need to take proceedings before the Victorian Civil and Administrative Tribunal to seek an order for possession of the property.
In reply, the appellant’s solicitor filed an affidavit stating that, after receipt of the respondent’s material, she sought clarification of the Department of Health and Human Services policies in relation to temporary absences, extended temporary absences and early housing applications. In response, Ms Christine Power of Women’s Housing Limited wrote a letter stating that, as that organisation could not provide an anticipated date on which the appellant might return to her property, an application for extension of temporary absence would be unlikely to succeed. If the appellant was to relinquish her tenancy and apply for early housing, she would not be guaranteed of housing when released from custody. In addition, Ms Belinda Dorian, the manager, Tenancy and Property Team, of the Department of Health and Human Services, has written a letter stating that if the appellant relinquished her tenancy before the period of six months, and subsequently applied for early housing, that would place her on a waiting list for public housing, and would not guarantee her a property at the time that she were released from custody. Ms Dorian also confirmed that extensions are generally only approved after six months.
Submissions
It is convenient, first, to outline, and consider, the submissions in respect of the original three grounds of appeal, before considering the three additional grounds.
In support of ground 1, it was submitted on behalf of the appellant that the judge, having formed the view that it was likely that a custodial supervision order would be made if the defence of mental impairment succeeded, failed to take into account that, if the appellant were refused bail, it would have a catastrophic effect on her, as she would thereby lose her rights to long term housing provided by Women’s Housing Limited. In that regard, counsel for the appellant referred to the evidence of Dr Carroll that, if the appellant lost her rights to her accommodation because of her continued incarceration, she was at a high risk of homelessness, which itself would have a ‘very adverse effect’ on her mental health. Professor Carroll stated that accommodation is very difficult to obtain for people with the appellant’s profile. Counsel also submitted that the judge erroneously equated a custodial supervision order with a sentence of immediate imprisonment, when reaching the conclusion that the appellant was likely to receive a custodial supervision order if she were found not guilty on the basis of mental impairment.
Counsel further submitted that the judge erred in expressing the view that it was ‘much more likely’ that a custodial supervision order would be imposed initially, upon a finding that the appellant was not guilty because of mental impairment. Counsel submitted that that conclusion was not reasonably open to the judge, and that, as a result of it, her Honour failed to take into account that prolonged incarceration of the appellant would adversely affect her prospects of being released on a non-custodial supervision order, as she would no longer have suitable accommodation available to her.
In support of the second ground, counsel submitted that the judge failed to give sufficient weight to the evidence of Dr Carroll as to the stability of the appellant’s then mental health, when concluding that there was an unacceptable risk that the appellant would cause harm to her mother, and possibly other members of the community, if she were released on bail. Counsel referred to the evidence of Dr Carroll and Dr Finn that the anti-psychotic medication prescribed for the appellant decreased the risk of psychosis associated with methamphetamine use. Both doctors agreed that the decline in the appellant’s mental health, leading up to the offending, had taken place over a period of approximately six months to 12 months. It was submitted, therefore, that the judge placed too much weight on the risk that the appellant’s mental health might deteriorate rapidly. In addition, counsel submitted that the judge failed to give sufficient weight to various protective factors, that were in place should the appellant be released on bail, including the availability of drug treatment and mental health treatment, the fact that the appellant was willing to make the advance statement directing Harvester Clinic to contact police should she fail to comply with treatment, the existence of a family violence intervention order protecting her mother, and the availability of a support worker through ACSO for six weeks after her release, to assist to link the appellant with other support services in the community. Counsel also referred to the evidence of Dr Carroll that the appellant did not harbour a long standing animosity towards her mother, but the offending occurred because the appellant and her mother had spent much time together, and the mother had assumed an active role in her mental health care.
In support of the third ground, it was submitted that, in light of the matters relied on by the appellant in support of grounds 1 and 2, it was not reasonably open to the judge on the evidence to refuse to grant the application for bail. In particular, counsel submitted that, in light of the evidence of Professor Carroll that the appellant’s mental state was stable, that she had insight into her illness and into the detrimental effects of drug abuse, and in light of the conditions of bail proffered on behalf of the appellant which would protect the community against any relapse by her, it was not open to the judge to conclude that the appellant had not shown cause, and that she was an unacceptable risk of danger to her mother and to the community if released on bail.
In response, in respect of ground 1, counsel for the respondent noted that a number of the appellant’s show cause arguments, before the primary judge, were based on the prospect that she might be released back into the community on a non-custodial supervision order, upon a finding that she was not guilty because of mental impairment. Thus, it was submitted, the judge was specifically invited to consider the likelihood of such a disposition in respect of the appellant should her defence of mental impairment succeed at the trial. Counsel submitted that, in considering that issue, the judge correctly took into account the appellant’s long standing diagnosis of schizophrenia, the catastrophic consequences of her previous psychotic episodes, her history of substance abuse and non-compliance with her medication, and the ongoing risk to the safety and welfare of the appellant’s mother should she be released on bail. Counsel further contended that there was no suggestion that the primary judge did not consider the effect on the appellant’s right to maintain her accommodation if her application for bail was refused.
In respect of ground 2, counsel for the respondent submitted that the primary judge properly took into account all the evidence relating to the question of whether there was an unacceptable risk that the appellant would cause harm to her mother and possibly other members of the community if she were granted bail. Again, the judge took into account the seriousness of the alleged offending, the appellant’s history of dangerous behaviour, her previous psychotic episodes, her abuse of methamphetamine, and the evidence relating to the effect of the abuse of methamphetamine by her on the capacity of the anti-psychotic medication to maintain the stability of her mental state. It was submitted that accordingly it was open to the judge to conclude that there was an unacceptable risk that the appellant might endanger her mother, and possibly other members of the community, if she were released on bail.
In response to the third ground of appeal, counsel submitted that, based on the foregoing factors, it was clearly open to the judge to conclude that there was an unacceptable risk to the appellant’s mother, and to her community, if she were released.
Legal principles
The right of appeal (of an accused person) in respect of a refusal of bail, or (by the Director of Public Prosecutions) in respect of a grant of bail, is now well established.[4] In either case, in order to succeed, the appellant must demonstrate that the primary judge made a material error of law, or relied on a finding of fact, or reached a conclusion, not open on the evidence.[5]
[4]Dale v DPP [2009] VSCA 212, [20] and following; Fernandez v DPP (2002) 5 VR 374.
[5]Fernandez v DPP (2002) 5 VR 374, 390 [31] (Winneke P); Barbaro v DPP (Cth) 20 VR 717, 719–20 [10]–[11] (Maxwell P, Vincent and Kellam JJA); Dale v DPP, [29] (Maxwell P, Nettle JA and Lasry AJA); Robinson v The Queen [2015] VSCA 161, [5], [56] (Maxwell P, Redlich JA), [86] (Priest JA).
In oral submissions, the central contention made on behalf of the appellant was that it was not open to the judge to conclude that there was an unacceptable risk that the appellant might endanger her mother, and other members of the community, if she were released on bail. In Robinson v The Queen,[6] Priest JA accepted, as correct, the approach to that issue outlined by Redlich J (as his Honour then was) in Haidy v DPP,[7] where his Honour observed:
Bail when granted is not risk free. …
As the offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. …
It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. … To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk. … .[8]
[6][2015] VSCA 161 (‘Robinson’).
[7][2004] VSC 247.
[8]Ibid, [14]–[16] (citations omitted).
In our view, that approach is appropriate, and applicable, in the present case.
In Robinson,[9] the Court considered, but did not resolve, the conflicting decisions at first instance as to whether an application for bail, in which the applicant is required to show cause, involves a two stage process,[10] or a one stage process.[11] As this Court observed in Robinson, in most such cases, that question is academic. In the present appeal, neither party, correctly, considered that it was necessary for this Court to resolve that issue.
[9][2015] VSCA 161.
[10]See DPP v Harika [2001] VSC 237.
[11]Re Asmar [2005] VSC 487.
Conclusions: Ground 1
In light of the submissions raised by the appellant before the primary judge, it was clearly appropriate, and indeed necessary, for her Honour to consider whether or not it was likely that the appellant would be released into the community on a non-custodial supervision order, if her defence of mental impairment were to succeed at trial. Counsel for the appellant had opened that issue, by contending (to the judge) that it was likely that her client would be granted a non-custodial supervision order, and that her prospects of obtaining such an order would be prejudiced if she were not granted bail, because as a consequence she would lose her entitlement to the accommodation provided to her by the Ministry of Housing. In light of those submissions, it was clearly necessary for the judge to address the issue whether it was likely that the appellant would be released on a non-custodial supervision order, if she established the defence of mental impairment. As counsel for the respondent has contended before us, the submissions made on behalf of the appellant, at first instance, in effect invited the judge to enter into that area of consideration.
The appellant has not demonstrated that the judge made any relevant error in her assessment, on the materials before the court, that it would be unlikely that a non-custodial supervision order would be imposed initially, if the defence of mental impairment succeeded. As we have noted, the judge listed a number of factors which would, in such an event, militate against the grant of a non-custodial supervision order as the initial disposition imposed on the appellant in the event of a verdict of not guilty on the grounds of mental impairment. It has not been demonstrated that the judge took into account any irrelevant circumstances. Further, taking into account the factors noted by the judge, her conclusion, that it was most likely that a custodial supervision order would be made, was clearly open on the evidence.
Further, having reached the conclusion that it was unlikely that a non-custodial supervision order would be made initially in respect of the appellant, the judge expressly addressed the issue of the effect of a refusal of bail on the appellant’s entitlement to public housing. Earlier in her reasons, the judge had acknowledged the submission made that the appellant had stable accommodation available to her, and that she was at risk of losing that accommodation if she did not return to continue her tenancy.[12] However, having concluded that it was unlikely that the appellant would be released on a non-custodial supervision order, the judge concluded that those arguments ‘… fall away or become much less important’.[13] The judge’s reasoning, in that respect, is logical and unassailable.
[12]Reasons [14].
[13]Reasons [32].
There is no substance in the submission made on behalf of the appellant that the judge thereby equated a custodial supervision order with a sentence of immediate imprisonment. The judge was clearly cognisant of the evidence of Professor Carroll as to the availability to the appellant of a defence of mental impairment under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). As we have stated, the appellant’s arguments required the judge to consider whether it was likely that, upon the establishment of such a defence, the appellant might be released into the community on a non-custodial supervision order. As the judge correctly noted, the appellant’s long standing diagnosis of schizophrenia, the dangerous conduct in which she had previously engaged when subject to psychotic episodes, her history of non-compliance with prescribed medication, her history of substance abuse, and the nature of the offending alleged in the case, all raised significant concerns about the safety of the community, and, in particular, the safety of the appellant’s mother. It is those considerations which are of fundamental importance to a court in determining the appropriate disposition of a person who has been found not guilty because of mental impairment.
Section 39(1) of the Act provides that, in deciding whether to make (or vary or revoke) a supervision order, or to make any other order under the Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum ‘consistent with the safety of the community’. Section 40(1) of the Act lists the matters which the court must have regard to in making such a determination. Those factors include the nature of the person’s mental impairment, the relationship between that impairment and the offending conduct, whether the person is, or would, if released, be likely to endanger themselves, another person or other people generally because of his or her mental impairment, and the need to protect people from such danger. The reasons given by the judge, for her conclusion that it was unlikely that the appellant would be released on a non-custodial supervision order, were all relevant to addressing those matters, and, in particular, the issue of the danger to the members of the community, and the need to protect people from such danger, arising from the appellant’s mental impairment. In that way, the judge did not equate a custodial supervision order with a term of imprisonment, and was, conspicuously, cognisant of the relevant issues which would need to be taken into account should the appellant establish the defence of mental impairment on her trial.
Ground 2 and Ground 3
Grounds 2 and 3 can be dealt with together. Notwithstanding the contentions made on behalf of the appellant, there was ample evidence justifying the conclusion by the judge that there was an unacceptable risk that the appellant would cause harm to her mother and possibly other members of the community if she were released on bail. In reaching that conclusion, the judge did not fail to give adequate weight to the matters relied on by the appellant.
Professor Carroll did give evidence, both in his report and on the hearing before her Honour, that the appellant’s mental state was then stable. However, that was in the context of the appellant having been in custody for three months at the time of Professor Carroll’s report, and five months at the time of the hearing before the judge. During that time, the appellant had been quarantined from access to illicit drugs, and she had been subject to close monitoring and supervision in the controlled environment of prison. Her circumstances, in those respects, would be very different if she were to be released on bail. In that respect, Professor Carroll noted the factors which constituted a risk of a relapse in the appellant’s mental state, and he expressed the view that those matters would need to be managed ‘as best as feasible’ upon the appellant’s release from custody.
In those circumstances, the judge was entitled to consider that ‘the protective factors’, relied on by counsel for the appellant, did not sufficiently alleviate the gravity of the risk to the public, and to the appellant’s mother, if she were now released from custody. Professor Carroll stated that the appellant had a very typical history of relapses in her mental state. As demonstrated by her history, the appellant, on relapse, constitutes a danger to others, and indeed to herself. In cross-examination, Dr Finn noted the close interrelationship between drug abuse on the one hand and her relapse on the other. He said that it was more likely that a patient would be non-compliant in taking medication once that patient commenced using drugs. Although a condition might be imposed on the appellant requiring her to undergo drug screens, those tests are not useful in the short term, because (according to Dr Finn) the process of testing the sample, and reporting the results of that screen, took some time. As we have already noted, Dr Finn also expressed some reservations about using an advance statement, given by the appellant, as authority to her medical practitioners to report to the police any non-compliance with her treatment regime. The circumstance that the proposed arrangements were to be formalised in bail conditions would be no sufficient assurance that they would be adhered to. The proposed bail conditions would have been binding on the appellant only. A risk remained that information about a breakdown of the arrangements would not come to the attention of the authorities in a timely fashion or at all, especially if the appellant were to revoke the proposed advance statement. Accordingly, even without taking into account our doubts about the legal efficacy of the proposed ‘advance statement’, considerations of these kinds necessarily undermined the dependability of the central protective measures relied on by the appellant in support of her application for bail.
Counsel for the appellant placed some emphasis on the appellant’s preparedness to make the proposed advance statement, which, as well as purporting to authorise those responsible for her treatment at the Harvester Clinic to notify the police if the appellant failed to comply with the conditions of her bail, was to include content relating to the medication to be administered to her, and relating to her abstinence from the abuse of illicit drugs.
It is understandable that the judge was not persuaded that this proposal was sufficient, either of itself, or in combination with the other matters relied on by the appellant, to demonstrate that there was not an unacceptable risk in the circumstances of the case. It must be borne in mind that the fundamental role of the Harvester Clinic is to treat the appellant for her psychiatric condition. As Dr Finn noted, it is important that, in order to perform that role, the practitioners at the clinic be able to establish and maintain an appropriate rapport with the appellant, and that they be able to develop a relationship of trust with her. Even apart from the legal issues, it is understandable that Dr Finn felt some discomfort at the prospect of acting on an advance statement, provided by the appellant, to notify the authorities in the event of non-compliance by her with the bail conditions. It is the function of the police, and, when the matter is before it, the court, to supervise and monitor compliance by an accused person with the terms of that person’s bail conditions. It could only be in a most unusual case, that such a role ought to be delegated to, or cast upon, those responsible for the care of an accused person’s mental health. Clearly, this was not such a case.
The evidence before the judge was to the effect that the abuse of methamphetamine by the appellant, as had occurred in the past, was a very prominent risk factor. Professor Carroll stated that if the appellant took methamphetamine, she was at heightened risk of acute psychosis with delusions and hallucinations, together with aggression and disorganisation. If the appellant abused methamphetamine, but remained on medication, then, according to Professor Carroll, her episodes would be shorter and much less likely to happen. However, it is pertinent that Professor Carroll did not state that, in such an event, the anti-psychotic medication would neutralise, or entirely offset, the detrimental effects of the methamphetamine on her psyche. Dr Finn stated that the effect of methamphetamine is to promote her psychosis, and the anti-psychotic was designed to mitigate or ameliorate against it. So, as he stated, the two effects would work against each other. Further, as already noted, in cross-examination, Dr Finn stated that the more a person used drugs, the less likely that person would be to remain compliant with her treatment regime.
It is correct that the decline in the appellant’s mental state took place over a period of 12 months leading to the circumstances of the incident in respect of which she is currently charged. However, in re-examination, when asked if that meant that the appellant generally would only again become actively unwell after a decline over a similar period of 12 months, Dr Finn stated:
Well I think the timeframe in this case is twelve months but I’m uncomfortable with the question simply because substance abuse can cause a very rapid decline in mental state. … If someone takes a dose of methamphetamines it would change their mental state acutely.
The appellant has also submitted that the judge failed to give adequate weight to the evidence of Professor Carroll that, if the appellant were released on bail, her mother would not be subject to the same risk as previously, as her mother would not be involved in endeavouring to ensure that the appellant remained compliant with her anti-psychotic medication. However, in his report, Professor Carroll noted that the appellant’s current inability to contact her mother was causing her some distress and that she was keen to re-unite with her mother. In cross-examination, he agreed that if the appellant sought to reunite with her mother, and were rejected, the appellant would become upset, and that that would need to be worked through with the assistance of a family therapist. While Professor Carroll considered that that contingency did not constitute an ‘acute’ risk to the appellant’s mother, the judge was nevertheless justified in considering that the appellant, on release, would constitute an unacceptable risk to her. In particular, the judge was, justifiably, concerned that on release the appellant would return to accommodation in which she would be exposed, on a daily basis, to persons from whom she had previously acquired methamphetamine. As mentioned above, the judge also considered that the accommodation was too close to her mother who, understandably, remained fearful of the appellant. Taking those matters into account, the judge did not fail to give adequate weight to the evidence of Professor Carroll that is relied on on this appeal.
In our view, the judge properly took into account, and gave adequate weight to, each of the matters relied on by the appellant. In the upshot, the appellant’s long standing diagnosis, her history of relapse, her background of drug abuse, the repeated dangerous conduct in which she engaged during periods of relapse, and the nature of the incident that is the subject of the current charges, were all factors which justified the judge concluding that, if the appellant were released into the community, there was an unacceptable risk that she would cause harm to her mother and possibly other members of the community.
For those reasons, grounds 2 and 3 fail.
Additional Grounds 1A, 1B and 2A
We turn, then, to the three additional grounds relied on by the appellant.
Under Ground 1A, counsel submitted that, notwithstanding that the appellant relied on seven factors to show cause, only two of those factors related to the possibility of the appellant being placed on a non-custodial supervision order if she were found not guilty because of mental impairment. Thus, counsel submitted, the judge erred in stating that ‘a number’ of the appellant’s show cause arguments were based on that possibility.
The argument is misconceived. Basically, it equates the number of factors relied on by the appellant with the number of arguments made on her behalf before the judge. Having read the transcript of argument, we consider that the judge was correct in her characterisation of the arguments presented on behalf of the appellant. Those submissions placed emphasis on the possibility (indeed asserted probability) of the appellant being placed on a non-custodial supervision order, particularly as a basis for the contention that, if the appellant were not granted bail, her entitlement to public housing would be jeopardised, which, in turn, would diminish the prospect of a court releasing her on a non-custodial supervision order. Further, the judge did expressly deal with each of the seven factors relied on by the appellant. Thus Ground 1A is without substance.
Under Ground 1B, it was submitted that the judge erred by dealing separately with the appellant’s ‘relatively good bail history’ and ‘absence of relevant convictions’ for serious violence since 1994, rather than considering those two matters as part of the combination of factors relied on as showing cause.
We do not accept that argument. In the passage in the judge’s reasons referred to by the appellant,[14] the judge considered the submission by the appellant that her good bail history, and the absence of relevant convictions for violent offending since 1994, constituted factors in support of the proposition that the appellant had shown cause why she should not be detained in custody. The judge, in that passage, rejected those considerations as factors weighing in favour of the appellant. Her Honour, in our view correctly, considered that the episodes involving the appellant in 2007 and 2008, and the two incidents in which she more recently entered court precincts carrying weapons, negatived the appellant’s record relating to her answering bail, and the absence of any convictions for violent offences during the last 25 years, as factors in favour of her showing cause. That conclusion by the judge was well open on the evidence. Having reached that conclusion, the judge was therefore entitled to put those two factors, relied on by the appellant, to one side, in considering whether the appellant had otherwise shown cause why she should not be detained in custody.
[14]Reasons [34].
In support of Ground 2A, counsel for the appellant submitted that, contrary to the observation by the judge, to the effect nothing had changed in respect of the risk factors that preceded the offending, in fact a number of matters had changed, including the incident itself, the period of remand, the proposed bail conditions, the ‘advance statement’, the availability of drug counselling and of an ACSO worker, and the presence of a family violence intervention order.
The submissions made in support of Ground 2A take the passage from the judge’s reasons — that nothing had changed — out of context. The judge directed that observation to the argument on behalf of the appellant relating to the proposed role that the Harvester Clinic should play in supervising compliance by the appellant with her anti-psychotic medication and with the conditions of her bail. Immediately before the passage relied on in ground 2A, the judge noted that in the 12 months before the alleged offending, the appellant had used methamphetamine consistently, her mental health was deteriorating, and she was refusing medication. The judge observed that all those matters were known to her treating clinic, who did not assess her as requiring compulsory treatment. Her Honour then stated:
I make no judgment about that. The Clinic saw itself as acting in accordance with the Mental Health Act and no doubt it was. It is the Clinic’s role to treat, not to police.[15]
[15]Reasons [36].
That passage immediately preceded the passage relied on in support of Ground 2A, namely:
However, nothing has changed since then, other than the applicant has had another psychotic episode resulting in harm to a person that could well have ended up even more badly than it did.[16]
[16]Reasons [37].
In that context, it is clear that the judge was there referring to the factors that might affect the assessment by the Harvester Clinic of the appellant and her condition, should she be released on bail. The passage, relied on in support of Ground 2A, in fact reflected a part of the evidence of Dr Finn in cross-examination, relating to whether he would seek to have the appellant detained as an involuntary patient, if she were released on bail and became psychotic again. Dr Finn agreed that the only factor, that had changed in that respect from the 12 months that preceded the alleged offence, was the occurrence of the alleged offence.
Accordingly, Ground 2A is based on a misconception by the appellant of the passage of her Honour’s reasons relied on in support of the ground.
Conclusion
For the foregoing reasons, the appellant has failed to make out any of the grounds of appeal relied on. It follows that the appeal should be dismissed.
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