Re LN [2006] VSC 62 (10 March 2006)

Last Updated: 24 March 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1400 of 1999

NOTE: The name and address of the forensic patient and any information which may identify him or the victim have been suppressed from publication by Order of the Court

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

- And –

IN THE MATTER of an Application for the Revocation of a Non-Custodial Supervision Order by "LN"

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 2006
DATE OF JUDGMENT:	10 MARCH 2006
CASE MAY BE CITED AS:	IN THE MATTER OF "LN"
MEDIUM NEUTRAL CITATION:	[2006] VSC 62

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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Application for the revocation of a non-custodial supervision order – Whether applicant would pose a danger to either himself or other persons were the non-custodial supervision order to be revoked – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. McLoughlin	Victoria Legal Aid
For the Attorney-General (Vic)	Ms F. Ellis	Victorian Government Solicitor
For the Department of Human Services	Mr G. Gilbert	Legal Services, DHS
For the Director of Public Prosecutions	Mr P. Raimondo	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions

HIS HONOUR:

1 This is an application pursuant to s.33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. By the application, the applicant seeks an order that the non-custodial supervision order to which he is presently subject be revoked.

2 On 29 May 1995, the applicant killed his wife. The circumstances need not be described here; but they were horrendous. At that time, however, the applicant was suffering from a psychotic episode associated with paranoid schizophrenia. Although presented on a charge of murder, he was on 16 October 1995 found not guilty on the ground of insanity. The judge ordered that he be detained at the Governor's pleasure.

3 The Crimes (Mental Impairment and Unfitness to be Tried) Act was assented to on 18 November 1997. It came into operation as to part on 18 November 1997, and as to the balance on 18 April 1998. By Schedule 3 of the Act, persons held at the Governor's pleasure were classified as "existing detainees" and, on and after the commencement, deemed to be subject to a custodial supervision order under the Act. The applicant continued in detention accordingly.

4 On 24 November 2000, however, the custodial supervision order to which he was subject was varied by Gillard J to a non-custodial supervision order. Two years later, an application for the latter’s revocation was on 29 November 2002 adjourned by Kellam J, for a further hearing before him on or after 1 May 2004.

5 The adjourned application was in fact heard by Williams J in May 2004, Kellam J being then unavailable. On 11 May that year her Honour refused the application. It has now been renewed before me.

6 I have heard evidence from Dr Andrew Carroll, who is a consultant psychiatrist with the Victorian Institute of Forensic Mental Health, from Dr Claudia Kleeberg, who is the treating psychiatrist responsible for the present care of the applicant, and from the applicant's case manager at the Darebin Community Mental Health Centre, Ms Fiona Pilley. I also have before me reports of each of those persons, together with a report by Dr Lester Walton who examined the applicant on each of 19 September 1995, 15 November 2002 and 30 January 2006.

7 The evidence of all those called before me, and the evidence contained in the report of Dr Walton, can I think accurately be described as unanimous in voicing the opinion that the applicant would pose no danger to either himself or other persons were the non-custodial order to be revoked. Indeed, Dr Walton went so far as to say in his report:

"The overall prognosis would appear to be excellent. In terms of this man's response to treatment and rehabilitation back into the community, to use a current cliché, it simply does not get any better than this."

8 It seems to me that, although expressed in strong language, Dr Walton's opinion is on all the evidence before me, justified. Indeed, one of the problems which in a sense the applicant faces in making this application is that his mental health at present, he being in remission, is so good that there is a danger that he will overestimate his prospects of continuing good health, and underestimate the need to remain under psychiatric care and under proper medication for the remainder of his life. Such care and satisfaction will, in fact, continue to be essential for as long as the applicant lives.

9 When, before the hearing began today, I read the reports to which I have referred, it occurred to me that it might (before the calling of any other evidence, and on the basis of non-leading questions) be appropriate for me to seek from the applicant evidence which might assist me to evaluate the likelihood of his not continuing with appropriate treatment – including appropriate medication.

10 The answers which I then obtained from the applicant satisfied me to the relevant standard that, for so long as he lives, he will continue to seek appropriate psychiatric treatment for what is a continuing mental condition presently in remission; and that he will continue to take appropriate medication. By "the relevant standard" I mean the standard now accepted as being appropriate in these matters: in other words, as held by Eames J in the matter of Derek Ernest Percy,^[1] the civil standard of proof (that is, on the balance of probabilities); but given the serious consequences of a mistake being made in this area, the Court must be satisfied in accordance with the precepts laid down in Briginshaw v Briginshaw^[2].

11 I have, during the course of the hearing today, been assisted by the careful cross-examination by Ms Ellis of all the witnesses, but principally of Dr Carroll. It seems to me that Ms Ellis has fairly and appropriately put to the witnesses the matters of concern to her client, and indeed of concern to the Court. It is entirely consonant with my assessment of Ms Ellis' cross-examination to say that it has assisted me in coming to the conclusion that I have, because it has assisted me to address those proper concerns. They also were the subject of Ms Ellis' final submissions to me, and I have taken those submissions, together with all the evidence, into account in coming to my conclusion.

12 That inclusion, of course, must be one which accords with the relevant legislative provisions. The matters to which the Court is to have regard are set out in s.40 of the Act. So far as is relevant, that section provides as follows:

"40(1) In deciding whether or not to ... revoke [a non-custodial supervision order] in relation to a person ... the court must have regard to –

(a) the nature of the person's mental impairment or other condition or disability; and

(b) the relationship between the impairment, condition or disability and the offending conduct; and

(c) 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

(d) the need to protect people from such danger; and

(e) whether there are adequate resources available for the treatment and support of the person in the community; and

(f) any other matters the court thinks relevant."

13 I have taken those matters into account, and having done so, I am satisfied that neither the applicant nor the community would be placed in a position of danger were the application to be granted. In coming to that conclusion, I also bear in mind s.39 of the Act, which provides that the Court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.

14 I have already mentioned one of the issues of most concern to me. That is the continued treatment of the applicant. He has, in the time since the conclusion of his trial for murder, taken different positions about the need for medical assistance. His opinion has varied from one in which he asserted that the care of a general practitioner would be sufficient to one that asserted he could be appropriately treated in the private sector by a qualified psychiatrist. His present position is that he will, for the foreseeable future, continue to seek appropriate psychiatric treatment from, and accept such treatment by, the Darebin Community Mental Health Centre.

15 I am confident that the position as sworn to by the applicant will be maintained. I am also confident that he will receive appropriate treatment from the Centre, that he will have the benefit of its collective knowledge of his position, of his treatment, of his diagnosis and his prospects; and that he will continue to obtain the benefit of a service plan which will be revised according to the changing circumstances of his case.

16 It is anticipated that those circumstances will include the arrival of the applicant's sister from China to act as his carer. What that will entail in practice is not certain. I am, however, satisfied on the balance of probabilities that should his sister as expected come to live either with the applicant or in such circumstances as to be able to maintain regular contact with him, that circumstance will be a benefit to him rather than a source of stress; and that his sister will benefit from the advice of the Darebin Community Mental Health Centre in the management of the applicant, particularly pursuant to an appropriately revised service plan.

17 It is the continuity of treatment offered by the Darebin Community Mental Health Centre, together with its institutional knowledge of the applicant’s history, that indicates the desirability of his continuing under its care. It may be that in the future a transfer to a private psychiatrist would be appropriate; but that is a bridge that can be crossed when it is reached.

18 In the meantime, I take comfort from the fact that the applicant has demonstrated a degree of insight into his condition which, on all the material available before me, is rare in patients who suffer from paranoid schizophrenia. Given his unusual capacity for insight, I am confident that he will continue to be acutely conscious of the need to continue under appropriate care and appropriate medication; but even were the applicant to cease taking his medication, the evidence is that his health should not deteriorate for a period of weeks or months thereafter. This is something from which I take comfort, as I do from the expectation that, should such cessation occur, the Centre will become aware of that fact and take appropriate action.

19 It is true that his condition is not and has not been as severe as that which afflicts many others. The disease came to him relatively late in life; and although he has had two relapses, these occurred over a decade ago. There is every reason to think that his current situation, in which he is in full remission, will be constant through the balance of his life, provided he continues his treatment and his medication. Subject to that proviso, the applicant (on the evidence available to me) presently enjoys unimpaired mental health.

20 In those circumstances, it seems to me appropriate that I grant the application. I will accordingly order that the non-custodial supervision order to which the applicant is presently subject be revoked.

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^[1] [1998] VSC 70 (18 September 1998)

^[2] [1938] HCA 34; (1938) 60 CLR 336