The King v KMD & Ors

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618; The Queen v KMD [2015] NTSC 31; The Queen v KMD (No 5) [2022] NTSC 69, referred to.

Crown: Office of the Director of Public Prosecutions

CEO Department of Health: Solicitor for the Northern Territory

Correctional Services: Solicitor for the Northern Territory

The King v KMD & Ors (No 6) [2023] NTSC 51

CHIEF EXECUTIVE OFFICER DEPARTMENT OF CORRECTIONAL SERVICES

[1] KMD is subject to a custodial supervision order ('CSO') made under Part IIA of the Criminal Code Act 1983 (NT) ('Criminal Code'). Section 43ZH of the Criminal Code permits the Court to conduct periodic reviews to determine whether a CSO should be continued or whether the supervised person may be released on a non-custodial supervision order ('NCSO'). On 2 September 2022, I delivered a decision on the most recent periodic review.[1] In that decision, I found (at [144]), on the basis of the evidence then before me, that the degree of likelihood that KMD would act on her delusional belief system in a violent way in the community was low, but real rather than fanciful. Consequently, I found that whether the safety of KMD or the public would be seriously at risk if she were released on a NCSO depends significantly upon the terms of any such order and the mechanisms in place to support KMD to live in the community in compliance with such terms.

[2] After I delivered my decision in R v KMD (No 5), I made orders for the filing of further expert reports as required by s 43ZN(2)(a)(i) of the Criminal Code, reports from the victims of the original offending as required by s 43ZL, and reports from KMD's next of kin and Aboriginal community as permitted by s 43ZN(2)(b).

[3] Reports and other evidence were tendered, written submissions were filed by the parties, and further oral evidence and submissions were heard in relation to the question of whether KMD should be released on a NCSO and, if so, on what terms, which included the issue of the need for, and the terms of, any transition plan towards such release. These reasons address that question and are essentially the second tranche of the periodic review process which commenced in November 2021.

Periodic review and the overarching issue before the Court

[4] As stated in R v KMD (No 5) (at [20]), on this periodic review, the Court is obliged by s 43ZH(2) of the Criminal Code to either: (a) vary the CSO to a NCSO; or (b) confirm the CSO or vary its conditions. The choice between those two main options turns on whether the Court is satisfied on the evidence available that the safety of KMD or the public will be seriously at risk if KMD is released on a NCSO (s 43ZH(2)). In making that determination, the Court must apply the principle that restrictions on a supervised person's freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community (s 43ZM). The Court is also required to take into account the matters set out in s 43ZN(1), which include whether KMD is likely to, or would if released be likely to, endanger herself or another person because of her mental impairment, condition or disability; the need to protect people from danger; the nature of the mental impairment, condition or disability; the relationship between the mental impairment, condition or disability and the offending conduct; whether there are adequate resources available for KMD's treatment and support in the community; and whether KMD is complying or likely to comply with the conditions of the supervision order.

[5] Section 43ZN(2) of the Criminal Code provides that the Court must not make an order releasing a supervised person from custody unless the Court has (relevantly): (a) obtained and considered two reports, each being prepared by a psychiatrist or other expert ('s 43ZN(2)(a)(i) reports'); and (b) considered the reports submitted to the Court under: (i) s 43ZK ('periodic reports'); (ii) s 43ZL(1) ('victims' reports') and (iii) s 43ZL(3) ('KMD's family reports').

[6] Three periodic reports were received from Dr Mrigendra Das (Exhibits SO46, SO47 and SO48). They were dealt with in R v KMD (No 5).

[7] A further report was received from Dr Das and Yvonne Roberts dated 6 January 2023 ('Exhibit SO57'). Ms Roberts is a registered mental health nurse with 17 years' experience in mental health care and related environments and, like Dr Das, a member of the Forensic Mental Health Team ('FMHT'). Dr Das did not give oral evidence further to that referred to in R v KMD (No 5). Ms Roberts did not give oral evidence.

[8] In Exhibit SO57, Dr Das and Ms Roberts expressed their concurrence with the report of Professor James Ogloff and their disagreement with the report of Janet Guy (both reports are dealt with below).

[9] They also prepared a proposed transition plan for KMD ('FMHT Transition Plan'), which is dealt with below.

[10] A report, tendered by the CEOs, was received from Distinguished Professor James Ogloff AM ('Exhibit SO53'). He is a registered psychologist in Australia with endorsements in clinical and forensic psychology. He works as a clinical and forensic psychologist and has worked in various clinical and forensic settings, including gaols, prisons, youth detention centres, community mental health clinics, and forensic psychiatric clinics and hospitals, since 1982. He holds a Bachelor degree in psychology, a Masters degree in clinical psychology, a Juris Doctor degree in law and a Doctorate (PhD) in forensic psychology and law. He is a Fellow of the Australian, Canadian, American and International professional psychology associations, and a Fellow of the Australian professional psychology association Colleges of forensic and clinical psychologists. He is a Professor of Forensic Behavioural Science and Dean of the School of Health Sciences at Swinburne University of Technology. He is also the Strategic Advisor, Research, Education and Innovation at the Victorian Institute of Forensic Mental Health ('Forensicare'). From 2001 to July 2022, he was the Executive Director, Psychological Services and Research at Forensicare. From 2004 to 2021, he was the Director of the Centre of Forensic Behavioural Science. Professor Ogloff has conducted risk assessments since 1986, regularly publishes scholarly work on risk assessment, and is a pioneer in the assessment of risk among women offenders and psychiatric patients. Professor Ogloff is familiar with the Darwin Correctional Centre and forensic mental health services in the Northern Territory.

[11] Professor Ogloff's report sets out his opinions on various matters, which are referred to below.

Objection to receipt of Professor Ogloff's report

[12] I received Professor Ogloff's report into evidence over the objection of KMD to its receipt. KMD objected on the basis of its inconsistency with my finding in R v KMD (No 5) at paragraph [144] that there was a real but low risk that KMD would act on her delusional belief system in a violent way in the community. I overruled KMD's objection because s 43ZN(2)(a)(i) of the Criminal Code requires the Court to take into account the reports of two experts (in addition to the periodic reports). Those reports were ordered to address the specific means by which KMD and the risk that she might act on her delusional belief system in a violent way in the community might be managed on a NCSO, and how she might transition from custody to living in the community. Any expert opinion about those issues would necessarily be based upon the expert's opinions as to the nature and degree of the risk.

[13] KMD refused to be interviewed by Professor Ogloff for the purpose of his preparation of the report. Professor Ogloff considered that this lack of direct assessment of KMD and her very limited direct clinical contact with mental health professionals over many years put him at 'a considerable disadvantage in completing' his report, so approached it 'cautiously'. In cross-examination, he agreed that a consequence of this rather cautious approach was that, when considering the diagnoses of a mental illness, he placed greatest weight on the assessments done with KMD directly. He did consider himself to be able, based on a documentary review, to comment on KMD's diagnosis, the course of her illness and the appropriateness of risk assessments which had been undertaken.

[14] Set out in Exhibit SO53, Professor Ogloff's opinion was that the diagnosis of a delusional disorder, persecutory type, with continuing symptoms appeared to be the most appropriate. He considered KMD's delusional beliefs to have persisted over many years. He did not consider KMD to have demonstrated symptoms consistent with a diagnosis of schizophrenia.

[15] In Exhibit SO53, Professor Ogloff opined that the nature and strength of KMD's delusional symptoms are uncertain, but it is most unlikely that they would have abated, with her lack of insight and paranoia about being assessed by psychiatrists providing some evidence of persistent delusional thinking.

[16] The remainder of Professor Ogloff's expert opinions are considered below.

[17] A report, tendered by KMD, was received from Janet Guy ('Exhibit SO52'). Ms Guy is a clinical social worker engaged by KMD and her family to provide a report for these proceedings. Ms Guy holds a Bachelor degree in social work and an Associate Diploma in social welfare. From 2019 to 2023, she worked as a social worker for various non-government organisations and the Aboriginal & Torres Strait Islander Health Service in Queensland. She worked with Aboriginal people who have suffered trauma, mental health disorders and physical health problems, providing support, advocacy and skills to 'get through difficult times'. Before that, she worked for more than 20 years as a social worker for Queensland Health, in both mental health and alcohol and drugs contexts. In those roles, she provided counselling, education, support and advocacy to mental health consumers 'during life's difficulties and complications' as a result of their mental conditions. She facilitated various programs, including programs addressing grief and loss, anger management and cognitive behavioural therapy, including with Queensland Community Corrections.

[18] Ms Guy's report was based primarily on around 50 hours of sessions with KMD (either in person or via teleconference or phone). Ms Guy said she and KMD had developed a relationship of trust, such that there was a mutual intention for Ms Guy to continue counselling with KMD during and after any transition into the community. Ms Guy also engaged with members of KMD's family, which led her to conclude KMD has strong family ties and support for her release. During the course of these counselling sessions, Ms Guy utilised psychoanalysis, motivational interviewing, cognitive behaviour therapy, narrative therapy and humanistic therapy. She said she had not observed any symptoms of mental illness in KMD. She noted that KMD's thought form and content were sequential and logical with no obvious formal disorder to thought form, content and flow. Her judgement appeared intact and she expressed no thoughts of self-harm nor harm to others.

[19] Ms Guy produced a draft transition plan, in consultation with KMD, which was subsequently refined ('KMD's Transition Plan'). The foundation of KMD's Transition Plan was her immediate release on a NCSO.

[20] The DPP submitted that Ms Guy's opinions about the risk to the public posed by the release of KMD on a NCSO should be given little weight because: (a) forensic risk assessment is a specialised area in which Ms Guy lacked expertise; (b) Ms Guy had a limited understanding of the original offending; and (c) Ms Guy's approach in her counselling with KMD was forward looking rather than forensic. I do not accept that Ms Guy's evidence should be given little weight. She did not purport to make any formal risk assessment, acknowledging that she lacked the expertise to do so. Ms Guy is not a psychiatrist or psychologist, but she has undertaken extensive work with people with mental illnesses, including people who have committed violent offences, and with Aboriginal people. She has had more engagement with KMD, and more recently, than any of the psychiatrists or psychologists who have provided reports about KMD to this Court. Ms Guy's inability to recite the facts of the original offending from memory in cross-examination did not demonstrate a lack of sufficient familiarity with KMD's actions on 7 May 2013 to offer valid and important evidence about the risk to the public of placing KMD on a NCSO. Further, I find that Ms Guy's evidence about her methodology in counselling did not eschew a forensic approach, but placed that in a context of assisting her clients to move forward in their lives, accepting what had occurred in the past and avoiding any repeat of it in the future. Ms Guy's methodology in counselling is addressed further below.

[21] I consider that Ms Guy's opinions and observations carry significant weight, and are to be considered along with those of Professor Ogloff and Dr Das, bearing in mind their respective fields of expertise.

[22] The remaining expert opinions and observations of Ms Guy are referred to below.

[23] I received a report from Mr I. He is the victim referred to in R v KMD (No 5) at paragraphs [9]-[11] and [13]. He expressed his understanding that, as part of KMD's 'sentence', she was required to take medication and acknowledge her mental illness and 'crimes' towards the victims, and he understood she had done neither. That understanding is misplaced. KMD was not 'sentenced' and the CSO imposed by the Court did not oblige KMD to do any of those things.

[24] Mr I expressed his view that releasing KMD into the community before the expiry of the 'sentence' (which I take to be a reference to the nominal term fixed under s 43ZG of the Criminal Code) could only lead to the endangerment of RL and Mrs L and, to a lesser extent, himself. I give little weight to his concerns for RL and Mrs L as they themselves have provided victim reports. Mr I said he was concerned about retaliation towards himself and his family due to his evidence contributing to KMD being held in custody, and the possibility of resentment about that having built up over the period KMD has been in custody. He said he had not received any apology from KMD. He said the events of 7 May 2013 took a 'large toll' on him. He still takes medication and suffers from panic attacks as a consequence of those events. He also said there was a considerable financial cost to himself and his family, but does not specify the nature or quantification of such cost.

[25] In a written response to Mr I's victim report, KMD said she has no 'vested interest' in Mr I or his family or his life, beyond apologising 'for the most mortifying, unladylike and undignified behaviour I have ever invoked upon any persons in my life'. That Mr I was a stranger to her was 'no less appalling'. She said she was sorry Mr I suffered 'stress-related' symptoms after the incident.

[26] KMD said that Mr I's beliefs were to some degree influenced by RL and Mrs L. She said she may not be able to change his mind about how he feels or what he believes, but asked him to keep an open mind.

[27] KMD went on to explain her position that treating mental illness with drugs is not helpful to recovery, whereas cognitive models of therapy can be, because they can examine and compare thoughts with an objective, rational view of the same situation, helping the person to recognise how their perception is distorted and biased, and to find a more realistic or broader way of thinking about the situation.

[28] KMD said that she accepts the challenge that 'bad things happen' and she can move forward with her life with a positive mindset, rather than feel crushed and inadequate and suffer. She said she is meeting the challenge of psychological resilience with positive emotions and humour. She said her challenge is to overcome what has happened, to find strength in the experience and to use that strength to move forward.

[29] KMD said, at the end of the day, she is 'not a convicted person', there is no evidence base to believe she is 'violent or dangerous or mentally unwell', and if Mr I can accept that, then perhaps he can also accept her 'sincere apology'.

[30] I received a report from Mrs L. She said KMD's release would have a detrimental impact on her, RL and her grandson, R. She said the events have left her with multiple medical issues and severe mental issues. The medical issues were not identified but relate to a small piece of bullet 'lodged in yung', which I take to be a reference to her arm as she was shot in the arm.[2]

[31] The mental issues referred to by Mrs L were: (a) regular anxiety attacks (with symptoms including heart palpitations and increased blood pressure) when she has to leave home to go shopping; (b) the need to check all the rooms of her home, cupboards and other places that someone might hide, whenever she returns home; and (c) lack of sleep due to fear, for which she needs medical intervention, but has had little improvement. She also said she has taken steps to increase security in her home, but she has not felt safe in her own home and still feels traumatised and terrified of KMD. She expressed a concern that KMD would have 'unfettered access' to weapons if she were to live at the Station (see below), which would be a concern given the use of the gun in the events of 7 May 2013. She also expressed a concern that the Station is only 108 km or 1 hour from her home.

[32] Mrs L said she had been victimised by KMD before the events of 7 May 2013. I have no evidence about such matters, and make no findings in that regard.

[33] Mrs L also made reference to a podcast interview by KMD as confirming her fears. Again, there is no evidence before me about that and I make no finding in relation to it.

[34] Mrs L said she continues to live in total fear for herself, RL and her grandson. She said there is no evidence that KMD has given up on trying to kill her as she did on 7 May 2013. She does not want KMD released because KMD has inflicted fear, trauma and long lasting anxiety on Mrs L (and others) for a long period of time.

[35] In a written response to Mrs L's victim report, KMD said she accepted that Mrs L may feel a state of tension about KMD's potential release. She said she hoped to reassure Mrs L that she has 'a happy spectrum of healthy human experiences to look forward to' when she is released.

[36] KMD denied what Mrs L had said about KMD's actions towards RL during their relationship (matters which I have expressly made no findings about). She also made various allegations about Mrs L having harassed and denigrated her prior to the original offending. Again, there is no evidence before me about these matters and I make no findings about them.

[37] KMD said she would not cause the stress or burden of seeking Family Court orders to permit her to see her son, R, who is now old enough to make his own decisions.

[38] KMD said she has a positive mindset, is not in a state of pressured or conflicted mind, and can find ease or comfort with a past experience that cannot be changed. She said she understood that Mrs L might find this distressing. She said she cannot change Mrs L's attitude but KMD chooses to be positive about the future, and is open to all perspectives, including Mrs L's.

[39] KMD said her conduct on 7 May 2013 was 'undignified behaviour'. She said she was sorry that Mrs L had experienced a range of physical and psychological symptoms. KMD said her conduct on 7 May 2013 was 'an appalling lack of lady-like grace' and said it was the most 'undignified act' of her life. She said she would never again emulate it.

[40] KMD said she had always wanted the best in life for her son, R, and that his happiness and well-being and those of Mrs L are 'closely linked', which is a great responsibility both she and Mrs L have been given.

[41] I received a report from RL. He set out his perspective of his relationship with KMD leading up to 7 May 2013. Again, there is no evidence before me about that and I make no findings in relation to it. RL said he has suffered with ongoing mental and safety issues, and that his son, R, has also had ongoing issues regarding his safety. RL does not describe what those issues are. He said he and R have had some semblance of safety during KMD's incarceration. He expressed the same concerns about access to weapons at the Station as Mrs L, and similar concerns about KMD's capacity to harass and intimidate himself and Mrs L if she were to be released. He fears that the distance between the Station and his home is not a barrier for KMD to finish what she tried on 7 May 2013. He said that the possibility of KMD's release has resulted in all the fear and anxiety returning to him and his family. He said KMD has not shown any remorse for her actions and it would be detrimental to his family and the general public if KMD were to be released.

[42] In a written response to RL's victim report, KMD took issue with the things RL said about KMD's actions towards RL during their relationship (matters which I have expressly made no findings about). She also made various allegations about RL, his behaviour and his mental capacities during that time. Again, there is no evidence before me about these things and I make no findings about them.

[43] Much of KMD's response to RL's victim report: (a) stated that RL is 'reverse-projecting' - ie, accusing KMD of doing to RL the things RL actually did to her; and (b) put KMD's submissions about the unfairness and impropriety of the Part IIA and criminal investigation processes she has previously complained about. Neither of those things is of assistance in determining the issues in this proceeding.

[44] KMD said she regrets her conduct on 7 May 2013 and is remorseful that her actions caused harm to others. She said she has moved on.

[45] It is not possible to resolve the significant factual differences between KMD, on the one hand, and RL and Mrs L, on the other. Their differing perspectives and experiences cannot be reconciled or resolved by this Court, but they must be acknowledged and taken into account.

[46] In written submissions, the DPP submitted that the victims expressed common themes, including their suffering of adverse psychological effects from the original offending, concerns about any proposal for KMD to live at the Station, in close proximity to the victims and having access to weapons, KMD's failure to acknowledge or address her mental illness, and fear of persistent thoughts of ill-will towards or retribution against them.

[47] I find that RL, Mrs L and Mr I have suffered significant and long-lasting adverse psychological and emotional consequences from the events of 7 May 2013. I accept that they hold genuine concerns for their personal safety if KMD were to be released on a NCSO.

[48] KMD's lack of insight into her mental illness, and the impact of that on risk was dealt with in R v KMD (No 5), particularly at paragraphs [42]-[43], [84]-[90] and [141]. I found (at [139(c)(iii)] that KMD denies that any of her beliefs are delusional and that she has a mental condition, which contributes to the risk that she would endanger others.

[49] The victims' concerns about KMD living in proximity to them, and her access to weapons, are addressed below.

[50] As to KMD's persistent thoughts of ill-will against the victims, the DPP submitted that the Court ought be cautious about accepting what KMD has said as indicating genuine remorse, acceptance of responsibility or insight into her offending, because KMD has significantly understated the seriousness of her conduct, its profound effects on the victims and denied that it was because of her delusional disorder. The issue of KMD's remorse is addressed further below. The DPP also submitted that the victims' fears of persistent thoughts of ill-will are 'supported to some extent' by KMD's responses to the victims' reports. I do not accept that. KMD's responses are, in part, her attempts to address the factual differences referred to in paragraph [45] above. More importantly, KMD's responses indicate her focus on her future, her desire to move on from the past and her wish to never repeat the events of 7 May 2013. Those matters point against, not towards, a finding that KMD holds persistent thoughts of ill-will against the victims.

[51] In Exhibit SO52, Ms Guy gave some useful background information about KMD's family, which she obtained from both KMD and KMD's family members. Background information is also provided in KMD's family reports.

[52] KMD grew up in Batchelor with her parents and siblings, living close to extended family. KMD went to primary school locally and then to boarding school in Melbourne where she completed high school. She had a happy childhood and acknowledges her parents' encouragement and support over her childhood and into adulthood.

[53] KMD's parents live on a station about 130km by road from Darwin. It is on Aboriginal Land Trust land and the traditional country of KMD's family. One of KMD's maternal aunts (and mother under their Aboriginal kinship system) and her husband (KMD's uncle and father under their Aboriginal kinship system) live and work on an adjacent cattle station and care for that country. For convenience, the stations will be referred to as 'the Station'.

[54] KMD's mother has recently retired from an education role. KMD's parents had four children, including KMD and her brother who recently passed away. KMD's sister is a teacher who lives in Brisbane. KMD's other brother lives and works on the Station. KMD's parents and siblings manage a family business running cattle on the Station, and doing contract work such as fencing and civil works in the local area. KMD's parents and siblings care for their country on which the Station is situated in accordance with their culture.

[55] KMD's cousin, the son of KMD's aunt and uncle, is the manager of the Station and the leading elder of the family under their culture. The family keep their Aboriginal culture alive. KMD has a cultural responsibility to assist in raising and teaching her nieces and nephews.

[56] KMD's sister flies back from Brisbane three or four times a year to work in the family business on the Station. The business is operated through a corporate entity. The board members of that entity, all members of KMD's family, support KMD and have created a casual administrative assistant position within the business for KMD to undertake upon her release, which would utilise her skills and allow her time to complete her Business degree. As part of that position, KMD would be permitted to live in a worker's house on the Station. KMD's presence on the Station would also facilitate her involvement in caring for her country and cultural activities.

[57] Another of KMD's aunts lives in Darwin. She is only nine years older than KMD and their relationship is more like that of sisters. They were very close growing up. KMD's aunt is a senior public servant who has worked for government for over 20 years. KMD's aunt's husband is an accountant who has worked for over 30 years. KMD's aunt and her husband visit the Station regularly. KMD's aunt and her husband have offered for KMD to live with them in Darwin until she is permitted to live at the Station.

[58] Section 43ZL(3)(a) of the Criminal Code refers to a report setting out the views of KMD's next of kin and the impact of KMD's conduct on the next of kin or other members of KMD's family. I received into evidence a letter from KMD's mother in response to the opportunity to provide a report under s 43ZL(3)(a) ('Exhibit SO61'). In Exhibit SO61, KMD's mother wrote that the wrong question was being asked and a fairer question was what she thought had impacted the family the most, which was KMD's 'juridical (of law and administrative justice) treatment and her nine and a half years of indefinite detention'. For a number of reasons, KMD's mother declined to address the impact of KMD's conduct on her or her family, saying (in effect) that, in finding KMD not guilty by reason of mental impairment and subjecting her to a CSO, the truth had been denied, namely the reality of KMD's and her family's experience 'of brutal, structural, prejudicial violence in the context of malicious prosecutions and wilful negligence by the Police, the Department of Health, the Juridical (law and administration) and treatment of justice'.

[59] For the reasons set out in paragraphs [128]-[136] of R v KMD (No 5), it is not tenable in this proceeding to accept such arguments about flaws in the determination that she was unfit to stand trial, the 2014 special hearing and the jury's finding that she was not guilty by reason of mental impairment.

[60] Nevertheless, I take it from Exhibit SO61 that, in KMD's mother's view, KMD's conduct on 7 May 2013 (as distinct from its consequences for KMD) did not have any adverse impact on KMD's mother or other members of her family.

[61] Section 43ZL(3)(b) of the Criminal Code refers to a report setting out the views of the members of the Aboriginal community of which KMD is a member. I received four letters which the parties accepted fell within s 43ZL(3)(b).

[62] The first letter is from the Chairperson of the corporate entity (KMD's cousin) through which the family business is operated on the Station ('Exhibit SO58'). The Chairperson set out the ways in which the family business would support KMD if she were to be released on a NCSO, and the resources available to it to do so. The mechanics of those have already been described.

[63] The Chairperson stated that KMD would receive emotional and social support through stable paid employment, training and work experience, and healthy recreation with family on her homeland. He stated that medical support and services are available at local regional areas, as are other services like shops, a post office, a library, and a fortnightly grocery delivery service. He stated KMD would be provided with accommodation in the workers' quarters, which have communication services including mobile phone service, broadband and wifi (which would be sufficient for KMD's online studies). He stated KMD would be provided with support to attend appointments or engagements outside of the Station.

[64] The Chairperson stated that the members of the corporation were of the view that KMD did not pose any threat to them, their community or anyone living on or near the Station, including the victims. He stated that the Station is a substantial distance from Darwin and its rural and suburban outskirts. He stated that they were confident that KMD would not put herself and her family through the loss and deprivation of her dignity and liberty again.

[65] The Chairperson stated that working on her country is vital to KMD's transition back to normal everyday life, where she can make a valuable contribution to the future of the corporation and as an emerging elder and stakeholder in the business, that KMD is mentally and emotionally in a good place now and the Station would be a safe and secure family environment for her.

[66] The second letter is from KMD's aunt who has offered her accommodation in Darwin ('Exhibit SO59'). In Exhibit SO59, KMD's aunt set out hers and KMD's history as noted in paragraph [57] above, adding that she and KMD enjoy similar interests and hobbies. KMD's aunt stated that KMD has told her a number of times that she knows she did wrong and is remorseful. KMD's aunt stated that reconnection to her homelands, her people and her culture will be healing for KMD. KMD's aunt stated she would keep close contact with KMD even if she resides on the Station, and her husband and adult children would also provide KMD with support. KMD's aunt also stated that her home in Darwin was also open to KMD if she needed it.

[67] The third letter is from KMD's sister ('Exhibit SO62'). She stated that, while in prison, KMD has re-evaluated her life and her actions. She noted KMD's cultural responsibilities as an emerging elder. She reiterated the matters in Exhibit SO58 regarding what the corporation could provide KMD if she were to live on the Station.

[68] The fourth letter is from KMD's uncle (and father under their Aboriginal kinship system) ('Exhibit SO63'). He reiterated the benefits for KMD from the proximity of her extended family on the Station. He stated that KMD's family are in the process of pursuing a land claim in the courts, involving considerable research, document gathering and writing. They also intend to create a historical and anthropological record of their family's history for future generations. Both are activities KMD could be involved in. He noted KMD's role as a person who will replace the female elders in due course, and assist with the extensive land care work the family business has undertaken over many years.

[69] KMD's family reports disclose that KMD does have a very supportive family who will, if she is released on a NCSO, provide her with many of the things which are considered important in the rehabilitation of offenders and reduction of risk of reoffending in the ordinary criminal context (often called 'protective factors'), such as employment, stable housing, financial means, connection to culture and close familial bonds with people who live law abiding lives. Even in the present context of a periodic review under Part IIA of the Criminal Code, it was not disputed by any party that such matters are protective factors which reduce the risk of reoffending by a person who has committed acts of violence due to mental illness. The debate between the parties was essentially as to the capacity of KMD's family to mitigate the risk posed by KMD's release on a NCSO in the circumstances of this case. That is considered further below.

[70] In R v KMD (No 5), I made some observations (at [41]-[47]) about a risk assessment undertaken by Dr Das in 2017 using a risk assessment tool, the Historical Clinical Risk Management Guide (HCR-20) assessment ('2017 HCR-20').

[71] In Exhibit SO53, Professor Ogloff opined that the HCR-20, which is a structured professional judgement approach, is the best validated violence risk measure and one of the most commonly used structured clinical judgement tools used internationally. He said the HCR-20 has been found to have a similar level of validity for both men and women. In examination-in-chief, Professor Ogloff said that it is more challenging to validate the HCR-20 tool for women because there are far fewer women who offend. He said the most recent study involved 1500 women internationally. He also said the HCR-20 tool has been validated for women from different cultural backgrounds, including Aboriginal women from places like Canada.

[72] In examination-in-chief, Professor Ogloff said that unstructured assessment, which is not grounded by guidelines, does not have any validity. He said the HCR-20 tool is widely used in Australia by every forensic mental health service. He said it is the most widely used violence risk assessment tool in the world.

[73] In examination-in-chief, Professor Ogloff explained that 'validity' refers to the accuracy or extent to which the HCR-20 assessment tool has been demonstrated in empirical studies to predict violent behaviour in the future.

[74] In Exhibit SO53, Professor Ogloff said the HCR-20 assessment tool can be administered without the benefit of an interview with the subject, but there may be limitations in the extent and nature of information available to score the measures. In examination-in-chief, he said that the most important element of a risk assessment is careful evaluation of the history. He also said that the absence of an interview limits the validity of the assessment, but it is hard to know to what extent.

[75] In Exhibit SO53, Professor Ogloff said the HCR-20 considers the extent to which an individual has experienced problems with a range of empirically validated risk factors during three time periods: (a) in the past until the time the HCR-20 is administered (being the 'H' (historical) scale); (b) recent problems (being the 'C' (clinical) scale); and (c) future problems (being the 'R' (risk management) scale).

[76] In examination-in-chief, Professor Ogloff said that a significant part of risk assessment is the historical or static factors, the things leading up to the offending behaviour and the behaviour itself. The historical scale in the HCR-20 is a static scale that remains largely unchanged. He said the clinical scale looks at the person's current functioning in five areas and is often supplemented by clinical interview. He said not having access to information from a clinical interview is a limitation of the assessment. He said the risk management scale is the forward looking element, which looks into plans in the future, such as the availability of professional resources and factors that would play into meeting the person's needs for a smooth transition to community. Again, that part is often supplemented by interview.

[77] As already noted, the absence of a clinical interview when administering the HCR-20 assessment tool is a limitation of its validity in this case, and the degree of impact on validity is unknown.

[78] In written submissions, KMD referred to an online bulletin article published by Cambridge University Press on a page titled 'Against the Stream', written by Dr Edward Silva titled 'The HCR-20 and violence risk assessment - will a peak of inflated expectations turn to a trough of disillusionment?' ('Silva article'). The Silva article lists numerous limitations to structured professional judgement tools like the HCR-20 and expresses the view that it is given too much emphasis in assessing the risk of future violence.

[79] In examination-in-chief, Professor Ogloff said he agreed with some of the concerns expressed in the Silva article, and emphasised that Dr Silva was not saying structured risk assessment should be abandoned, just that professionals should be much more circumspect about the power, utility and explanatory value of risk assessment tools and recognise how narratives may mislead as well as explain. Professor Ogloff said this confirms the need to continually evaluate procedures and test validity and utility.

[80] One of the views expressed in the Silva article, which Professor Ogloff was not asked to respond to, was the following:

... we cannot stratify risk using the [risk assessment] tools available. The information they provide regarding the likelihood of the outcomes we are really concerned about is of no practical use. ... Although short structured assessments would be helpful, our attempts to stratify risk of violence are not useful and should be abandoned, as should narrative explanations of the past and hypothesising future scenarios. It is not particularly useful to say that a man who has been violent in the past might be violent in future if intoxicated, threatened, feeling disrespected or aggrieved, lost to follow-up, non-adherent to anti-psychotic or mood stabilising medication and in contact with a vulnerable potential victim.

[81] Difficulty with stratification of risk is the issue referred to in R v KMD (No 5) at paragraph [50]. That is, how to characterise or quantify the risk where the potential consequences of the risk materialising could be catastrophic (loss of life or injury), but the likelihood of that risk materialising is low or very low.

[82] In the 2017 HCR-20 and the 2022 HCR-20 (see below), the risk identified is the risk that KMD would engage in acts of violence similar to those of the original offending, potentially involving a weapon and RL, Mrs L and bystanders. The effect of the risk assessments could be described in a similar fashion to that used in the above extract from the Silva article, as follows:

It is not particularly useful to say that a woman who has been violent in the past might be violent in future if stressed or distressed, thinking one of her family members is threatened, feeling unheard or aggrieved, disengaged with mental health professionals, continuing to refuse anti-psychotic or mood stabilising medication, and in contact with a potential victim.

[83] In the present case, that kind of risk assessment is not particularly helpful. Effectively, it characterises the risk that KMD will harm another person as 'high' because there is a risk (with a low likelihood of eventuating) that KMD might do in the future what she did in the past or something like it (with impacts of a high magnitude).

[84] In Exhibit SO53, Professor Ogloff reviewed the 2017 HCR-20, including the relevant evidence and the appropriateness of the administration of the HCR-20.

[85] As regards the matters on the historical scale, Professor Ogloff referred in Exhibit SO53, to the original offending, and 'good evidence' of conflictual relationships KMD had with both her intimate partners, RL and JC, and 'conflictual and varying relationships' with other adults, including members of her family. KMD submitted that there is no evidence that her relationship with JC was conflictual, saying their relationship broke down after she was detained in custody, something which would strain any intimate relationship. She said that, aside from her relationship with RL, there is no evidence of conflictual relationships with members of her family. This raises some doubt about the weight of the 'good evidence' relied on by Professor Ogloff.

[86] Professor Ogloff said KMD 'clearly demonstrates' problems with her delusional disorder, on which she acted in committing the original offending. He said, although she does not appear to display widespread entrenched violent attitudes, KMD had acted on violent ideation in the course of her offending. He made reference to 'violent attitudes' due to KMD's belief that the use of violent behaviour is justified to meet personal or material goals. Professor Ogloff said his ratings on the historical scale 'tend to be' consistent with those in the 2017 HCR-20, with the exception that he believed there to be sufficient evidence of violent attitudes displayed in her behaviour on 7 May 2013. He also referred to KMD's longstanding non-engagement and non-compliance with treatment professionals. Professor Ogloff noted no historic problems with employment, substance use or traumatic experiences or maladjustment.

[87] As regards the matters on the clinical scale, Professor Ogloff referred in Exhibit SO53, to KMD's ongoing and recent problems with insight, and her demonstrated lack of awareness, understanding or appreciation of her violent offending and the factors that place her at risk for violence, saying: 'By all accounts, she still believes that her offending behaviour was somehow justified'. KMD's 'justification' of her offending behaviour is addressed further below. My conclusions there raise some doubt about the degree of reliance on this factor in the risk assessment.

[88] Professor Ogloff said his ratings on the clinical scale were consistent with those in the 2017 HCR-20.

[89] As regards the matters on the risk management scale, Professor Ogloff noted in Exhibit SO53, problems with all areas in this scale except perhaps personal support. He noted an absence of evidence to demonstrate an appropriate level of planning for professional services necessary to help manage KMD's risk going forward. He noted an absence of evidence of appropriate accommodation options available to KMD to manage her potential risks, noting a lack of suitable forensic mental health services available where KMD proposes to reside (at the Station). Regarding personal support, Professor Ogloff stated that the item 'personal support' is day-to-day interpersonal contact with the person's social network that is expected to manage violence risk by facilitating their psychological and social adjustment. He opined that this requires explicit or well-formed plans regarding how personal support can be used to reduce risk, which is more than love and material or emotional support, and requires those providing the support to understand the risk factors and help manage the risks going forward. He said it is positive that KMD has the support of her family, but it is unclear how much they understand about her mental illness and the possible triggers to future harmful behaviour. He also said a service such as Mission Australia (which was the accommodation option put forward by KMD at the time of the first tranche of this periodic review) is insufficient to address the underlying psychiatric illness KMD has and the risk factors with which she presents. Professor Ogloff said it is impossible to determine whether KMD would be able to maintain her capacity to cope with stressors in a less restrictive environment than prison, particularly in private accommodation in the community.

[90] Professor Ogloff placed no weight on the counselling in which KMD has engaged with Ms Guy, and very little weight on KMD's personal support. That counselling and the capacity of KMD's family to mitigate risk are addressed below. My conclusions there raise some doubt about the weight given to these factors in the risk assessment.

[91] Professor Ogloff said his ratings on the risk management scale were consistent with those in the 2017 HCR-20. He said significant planning is required to help address and manage KMD's risks going forward, particularly if she is to be released to the community.

[92] In Exhibit SO53, Professor Ogloff opined that, taken together, the results of the 2017 HCR-20 indicate that KMD continues to present a high level of risk for future violence, with little evidence to suggest that her existing risk factors, which have been contained whilst she has been incarcerated, are being remediated. The issue of KMD's time in custody is addressed below. My conclusions there raise doubts about the validity of the assessment where no weight has been given to KMD's lack of violent behaviour in custody over the past 10 years.

[93] As part of Exhibit SO57, Dr Das and Ms Roberts revised the 2017 HCR-20, which was carried out in April 2017. The revised HCR-20 was dated 15 December 2022 ('2022 HCR-20').

[94] The 'summary of findings' set out at the end of the 2022 HCR-20 are almost identical to those set out at the end of the 2017 HCR-20.

[95] Of the 51 criteria referred to in the 2017 HCR-20, one (H9 - History of problems with violent attitudes) has been changed from 'not present' to 'partially present' and one (C4 - Recent problems with instability - Affective) has been changed from 'present' to 'partially present'. The information included to support the first change refers to KMD's conduct on 7 May 2013 and appears based on Professor Ogloff's observation referred to in paragraph [86] above. The information included to support the second change was that KMD has been 'more settled' over the past year (ie from July 2021 to July 2022).

[96] There are additions or variations to the information set out under 16 of the 51 criteria, apparently to update the information from that relied on in 2017. However, most of those add nothing new, but simply rephrase the information so that it expresses the information in the current tense.

[97] The criteria with the most substantial additions to the information referred to was C5 - Recent problems with treatment or supervision response - Compliance. The additional information (in addition to a summary of a meeting between KMD and prison staff on 20 March 2017) comprised: (a) a summary of a meeting between KMD and a FMHT nurse on 24 November 2017; (b) some information from a correctional officer dated 6 June 2018; (c) reference to two incidents between July 2021 and July 2022, where KMD was 'verbally aggressive' to (respectively) a correctional officer and a nurse;[3] (d) two instances (one on a date unknown and one in November 2021) when KMD was 'rude' to nursing staff; and (e) KMD requesting no red meat or gluten in her diet, requesting 'several screening interventions' and 'several minor medical issues to be addressed'. The addition of this largely dated and trivial or unfounded information made no change to the assessment of this criteria (Recent problems with treatment or supervision response - Compliance) as present and relevant.

[98] Another criteria with a fairly significant addition to information was C5 - Recent problems with treatment or supervision response - Responsiveness. The additional information included in the 2022 HCR-20 was that: (a) KMD last engaged with the psychologist Re Acacio in July 2020; (b) she requested further contact with him throughout 2021 and 2022, which could not be facilitated due to Covid-19 issues; (c) when offered engagement with Mr Acacio by Telehealth, KMD declined 'at this time' (citing some scepticism about why Mr Acacio's services were being offered now after she had been asking for some years), but indicated she would discuss it with her counsellor; and (d) KMD discontinuing, in August 2021, use of a drug prescribed for insomnia on being told that it was an anti-psychotic drug. Despite the addition of the quite relevant information about KMD's recent and persistent willingness to engage with a psychologist, no change was made to either the assessment of this criteria as present and relevant, or the conclusion, which states as follows:

Thus this overall not only denotes a lack of responsiveness, but also deterioration in her mental illness of delusional disorder.

This progressive lack of responsiveness, together with a decline in her mental state has a significant adverse impact on the risks that she poses.

[99] This conclusion about deterioration and decline in KMD's mental illness or mental state (which is repeated in the summary of findings) is inconsistent with the evidence addressed and the conclusion reached in R v KMD (No 5) at paragraphs [64]-[76]. On the basis of Dr Das's oral evidence, the conclusion was that there was no evidence of a deterioration in KMD's mental illness. As neither Dr Das nor Ms Roberts were called to give oral evidence, there is no evidence before the Court as to the basis for the opinion that KMD's mental illness has deteriorated. There is no basis to alter the conclusion I have already reached that there is no evidence of a deterioration in KMD's mental illness. For similar reasons, there is no basis to find that there has been a decline in KMD's mental state. Such a conclusion sits at odds with the observation that KMD has been 'more settled' over the past year.

[100] I note also that no reference was made in the 2022 HCR-20 to KMD's engagement with her social worker, Ms Guy (see below).

[101] The observations made about the 2017 HCR-20 in R v KMD (No 5) at paragraphs [43] and [45] are equally applicable to the 2022 HCR-20. So are the observations made in paragraph [81] above.

Forensic psychological treatment and risk management - the psychiatric perspective

[102] In Exhibit SO53, Professor Ogloff stated that violence risk assessment considers an individual's past incidents of violence to obtain a clear understanding of the factors that led up to the violent incident and the factors that were present at that time. He said the lack of information about KMD's current belief system makes it impossible to determine the extent to which the factors that were in play leading up to, during and following the offending are still present, without which it is impossible to identify the risk factors which should be managed into the future. In cross-examination (on behalf of the DPP), he said that there is still no clear understanding of exactly why the offences occurred and there has been no attempt at remediation around that subject matter. He said the chances that a delusional disorder would just disappear are very remote and even if the same delusion does not resurface, there has been evidence of a high degree of guardedness and paranoia around anyone who takes an opposing view to KMD. He said what is missing is an objective expert team who can manage people who have shown this kind of behaviour and KMD's disorder.

[103] In Exhibit SO53, Professor Ogloff stated that, in his experience, most of the cases where offenders with mental illness go on to commit further acts resulting in serious harm or death demonstrate a lack of integration between assessments and treatment plans and an absence of effective escalation processes in the face of deteriorating mental health, with insufficient attention paid to considerations of risk for violence. In cross-examination (on behalf of the DPP), he said that in most cases he has reviewed where 'things go bad', there has been a lack of attention to the recurrence of symptoms by even mainstream mental health practitioners who did not identify the potential gravity of the recurrence of delusional thoughts.

[104] In Exhibit SO53, Professor Ogloff stated that clinical experience and research show that people with psychotic illnesses who have been imprisoned for violent crimes but not treated are more likely to commit violent acts after release than those without such illnesses or those with such illnesses who are treated in prison or after release. Other research has shown a relationship between psychotic delusions and violence, particularly where the delusions include persecutory themes and engender anger in the patient.

[105] In Exhibit SO53, Professor Ogloff stated that risk is managed through therapeutic security, which exists where forensic mental health clinicians form a therapeutic relationship with the patient that includes a comprehensive understanding of the nature and course of the patient's mental illness as well as the factors that contributed to the offending behaviour. He said the skills necessary to manage risk are not shared by general mental health professionals. Professor Ogloff does not believe that KMD can be safely managed by general mental health services and non-governmental organisations.

[106] In cross-examination (by KMD), Professor Ogloff agreed that, while delusional disorders which have persisted for more than a year may be resistant to treatment, such as medication and, as an adjunct to or instead of medication, psychological intervention, patients often learn to identify and manage the symptoms. He said that requires the patient to learn what the symptoms are, by understanding what was real and what was not real, and understanding that the thinking was not based in reality. The patient then learns to identify when those symptoms are recurring or getting worse and how to manage the symptoms. He said the purpose of the psychological intervention is to learn and understand what precipitated the situation, the thoughts that KMD was experiencing at the time she was carrying out the acts she did, and to understand that the anxiety and desperation which the thoughts produced on that day can be managed without acting in the way she did on that day. It is understanding what led to the behaviour and how the person can cope with those feelings before they become that desperate again.

[107] Professor Ogloff also said that forensic mental health is anchored in 'recovery' principles, which are driven by the patient, with the goal being to manage and assist the person in managing their mental illness in a way that keeps them and the community safe. He said it is a mutual process which cannot work if the treatment team is unyieldingly forcing a particular position, and nor can it work if the patient is similarly inclined to follow a particular course. The idea is to draw on the expertise of the treatment team and the lived experience of the patient to manage a way forward that will meet the needs of the patient. He said it would not be acceptable for the treatment team to accede to or reinforce an irrational belief (as distinct from frustration and anger about being in prison). He said an individual who has caused such serious harm should not be able to hold on to views that essentially explain away that behaviour and leave open the possibility of similar behaviour returning.

[108] In cross-examination (by KMD), Professor Ogloff said a person with a mental illness who has caused harm to someone, when they are recovering, usually feels very guilty and fearful of becoming unwell and doing that again, which is positive recovery. He said such persons take steps to undergo treatment, supervision and support so that it does not happen again. He also said it was unfortunate that there is not a proper forensic mental health hospital in the Northern Territory, from which KMD could have episodes of leave. He also agreed that there is some protection from risk because KMD's son is older (meaning KMD is no longer concerned for his safety).

Forensic psychological treatment and risk management - A different perspective

[109] KMD submitted that she does not consider that 'co-rumination', that is talking about the same traumatic experience over and over again, will be of any utility for her, and is likely to be detrimental to her mental health. She considered her counselling with Ms Guy, which has a forward looking, rather than a backward looking, approach, to be most helpful to her. She said she would like to have the choice to speak to who she wants, when she wants, on her terms, and there is nothing to be gained from her speaking to forensic mental health personnel about her original offending or what precipitated it because 10 years has passed and she has moved on from that situation. She said that speaking about what she was feeling or thinking 10 years ago will not assist when she does not have those same feelings, experiences or beliefs now. She said that she has had 10 years to consider those things, and her responses to them by the offending conduct. She said that the feelings, experiences and beliefs she felt then were summed up by what she told Dr Walton as recorded in his report of 28 May 2015 (Exhibit SO14) as follows:

In relation to her offending she stated 'It was a build-up, an explosion'. She was under considerable stress because of the breakdown of her relationship which she regarded as having been abusive and that there was continuing conflict between herself and her former partner [RL]. She found the Family Court proceedings to be difficult and she described, what she believed to be a genuine disclosure by her son that he had been abused, as a final straw which was 'completely overwhelming'. Her sense of frustration grew due to what she perceived to be a lack of action on the part of authorities and ultimately she felt she must intervene to try and protect him. She accepts that she clearly did not carefully consider the consequences of her actions both in relation to harming the victims and also the consequences for her sons and herself.

[110] KMD submitted that she has had 10 years to assess the prospect of similar emotions arising again in the future, and to be aware of how she conducts herself in the future, monitoring her thoughts and feelings and behaviours. She said she has learnt from her 'profound experience' and will be closely monitoring her behaviour and conduct if she is released because she is acutely aware of the consequences of any deterioration and where that might lead.

[111] In Exhibit SO52, Ms Guy referred to the positive effects which her counselling has had on KMD's mental state, including providing the opportunity for KMD to tell her story and be understood so that she can move forward. KMD's participation in the counselling sessions indicated to Ms Guy KMD's willingness to rehabilitate, transition and heal. Ms Guy noted KMD's insight, in the sense of recognising that she will require ongoing counselling to transition from custody into the community.

[112] In written submissions, KMD said that she welcomed her sessions with Ms Guy and would like them to continue in substitution for any clinical services from the FMHT. She described the sessions as her 'positive pathway forward'.

[113] In examination-in-chief, Ms Guy said that the absence of drug and alcohol problems for KMD meant it would be easier to work with KMD to support her to develop strategies to get on with her life in a proactive way to the benefit of KMD, her family and the community. She also said that one of the things she and KMD would address in counselling is navigating any contact made or sought by KMD's son, R.

[114] In Exhibit SO52, Ms Guy reported what KMD told her about the events leading up to and on 7 May 2013, and the way she felt about them at the time. She noted KMD described feelings of helplessness, despair, being trapped, immense distress and desperation. In cross-examination, Ms Guy agreed that a fundamental tenet of social work practice is to 'walk the path of the client' and approach their life challenges from their perspective. She added that the client's perspective is only 'one third of the story'. Asked if she would never really challenge a client about how they perceive something, she said that she cannot challenge what actually occurred, but she does examine with the client their perspective and challenge the client on how things could have been done differently. She said she 'looks forward' to focus on what is required now, including current risk factors, and whether issues in the past are going to be an issue in the future. Ms Guy also said that cognitive behaviour therapy is an ongoing part of the kind of social work counselling she provides, in the sense of looking at behaviours and reactions to events or triggers in the client's life, and it could be used for KMD as she adjusts to life in the community and to assist her to develop coping mechanisms for those events or triggers over time.

[115] In cross-examination, it was suggested that Ms Guy's counselling with KMD had been more about building rapport, taking her history and providing support, rather than any kind of therapy. Ms Guy said there had been therapy as well, including brief discussion of strategies and responses for identifying, managing and controlling risk factors, and linking KMD's offending behaviour and her current state of mind. They had also discussed what KMD might do if her thoughts were not 'quite right'.

[116] In cross-examination, Ms Guy indicated she was aware of the critical facts related to KMD's conduct on 7 May 2013. She had read some of the victims' reports and had briefly discussed their contents with KMD. In cross-examination, Ms Guy said that risk assessment via psychosocial assessment during counselling would be ongoing were KMD to be in the community. She said, in assessing risk, she had considered the historical matters and raised them with KMD, but agreed that her focus was on current risk and what KMD 'has been doing now'.

[117] This evidence shows that the counselling engaged in up to the hearing has had, and counselling to be engaged in in the future has, elements of a forensic approach to it, and that the goals are the same, namely to assist KMD to understand her thoughts and feelings at the time of the original offending, and to develop strategies to address similar thoughts and feelings if they were to arise in the future.

[118] In examination-in-chief, Ms Guy said that as a front line social worker, she has experience in recognising and deciding, through counselling, if people with mental health issues need treatment or interventions or whether they can be better assisted with further counselling, helping them to recognise when their symptoms are arising, monitoring their progress and identifying additional supports or interventions they require. She also said she had worked with the families of people with mental illnesses, to educate them about symptoms or warning signs, and what to do to help the person obtain the supports they need. Ms Guy said she intended to work with KMD and her family to educate them in that way. She also said she had experience working with people who are required to follow 'a guideline within the law' (which I take to mean some form of court ordered conditional release).

[119] In Exhibit SO52, in addition to reporting that she had not observed in KMD any symptoms of a delusional disorder, Ms Guy expressed the opinion that KMD may currently be suffering from symptoms consistent with post-traumatic stress disorder, which would inform Ms Guy's approach to counselling KMD in the future. In cross-examination, Ms Guy accepted the possibility that KMD has a delusional disorder, but thought the diagnosis needed to be reassessed by a psychiatrist based on current information.

[120] In cross-examination, Ms Guy agreed she had performed risk assessments on mental health patients, but had never performed a structured forensic risk assessment on a mental health patient, or had the training to do so. Ms Guy agreed that she did not undertake a HCR-20 or forensic risk assessment of KMD. She said she had worked with people with mental health issues who have committed offences, but the bulk of her experience with them had been after their release from custody, including their recent release. She agreed she had not worked with a person who was in prison at the time. She had worked with people who were in a forensic rehabilitation facility, as part of a team.

[121] In cross-examination, Ms Guy agreed that, in the mental health space, work is done as a team, which usually includes a psychiatrist, a psychologist, a social worker, an Aboriginal health worker (if appropriate) and a case manager (who could be a social worker, psychologist or registered nurse experienced in mental health). She agreed the role of the social worker is to collaborate with the team members about a proposed intervention or a plan, and in her experience the case worker would devise the plan and discuss it with the team. Ms Guy agreed that it is preferable to work as a team in mental health cases, and there could be more team members in KMD's case than only Ms Guy, but she did not think it necessary for the team to include a psychologist or psychiatrist. She said the team could include family members, and North Australian Aboriginal Justice Agency ('NAAJA') Throughcare staff. She agreed that KMD's input was necessary for the treatment or planning to work. She said the individual should be able to choose who is part of the team.

[122] In cross-examination, Ms Guy agreed that aspects of KMD's risk needed to be explored further, but said they could not be explored further whilst KMD remains in custody. Ms Guy agreed that a way to do that would be to have KMD participate in a transition plan. Ms Guy denied that she was unable to monitor the plan because she lives in Queensland, saying she could come to the Northern Territory and could provide support and develop strategies with KMD and her family, NAAJA Throughcare and other stakeholders. Ms Guy said she did take into account the possibility that KMD has a delusional disorder, and opined that KMD could be managed in the community with the support network she has and other stakeholders relevant to her case.

[123] In Exhibit SO53 and cross-examination, Professor Ogloff said that it may be an option for someone independent to be appointed as a broker to help address the stalemate between KMD and the FMHT. He said the person would have to be someone who is not KMD's advocate, but someone she can engage with, who can work with the FMHT, but who can also challenge KMD's views if they are not grounded in reality or helpful. He said KMD appears to have a history of ceasing engagement with a professional if they take a different view to her.

[124] I find that Ms Guy has the expertise, experience and necessary therapeutic relationship with KMD to engage with KMD, recognise if she is expressing beliefs not grounded in reality or helpful, discuss and, if necessary, challenge those beliefs with KMD, assist her to manage her thoughts and emotions, and identify when such beliefs may involve an elevation of risk to the safety of members of the community such that some intervention or escalation is required.

KMD's family's capacity to address and mitigate risk

[125] In examination-in-chief, Ms Guy said that after her interactions with KMD's family members, she feels that they would recognise if KMD was acting on or expressing thoughts that were out of character or not within the normal range of thinking, would seek to challenge or change those thoughts, and would guide her to seek support in counselling or from a doctor. She said she expected that KMD's family would act quickly in those circumstances because they care about KMD, they are well educated, and they recognise that to do so is better for KMD's welfare.

[126] In cross-examination (on behalf of the DPP), Professor Ogloff said that he has concerns about the capacity of KMD's family to identify and act on KMD expressing abnormal thoughts which might indicate an escalated risk of violence because: (a) in the lead up to the original offending, no actions were taken by family members to try and alert authorities to her behaviour; (b) people with a delusional disorder can function very well and they learn very quickly not to discuss their delusional beliefs; and (c) none of the material which Professor Ogloff had read indicated that either Ms Guy or KMD's family recognise that she had a delusional disorder at the time of the original offending, instead suggesting her behaviour was justified by normal maternal instinct. He said it was difficult to be assured that Ms Guy or KMD's family would be able to identify or act accordingly if there was evidence of delusions recurring. He said it would be difficult for anyone other than a highly skilled forensic clinician to make that determination.

[127] In cross-examination, Ms Guy agreed it is essential that KMD's family understand what KMD's mental illness is and the symptoms described in her historical presentations documented in reports before the Court. Ms Guy said she did not ask KMD's family members if they believed KMD had a delusional disorder and they did not tell her if they believed KMD had that or post-traumatic stress disorder. She said that her understanding is that KMD's family do not believe she has a mental disorder that requires treatment by way of medication, but they accept she needs counselling.

[128] While KMD's family members are not highly skilled forensic clinicians, they would have the advantages of close personal relationships with KMD, of having day to day contact with her in her daily life, and of hindsight - an awareness of what happened in the past when KMD's delusional beliefs led her to fear for her son's and her own safety and act as she did on 7 May 2013. Even if they do not accept that KMD has a mental illness, they would be aware, from their presence in Court during the hearing of this periodic review, of at least the possibility that KMD has a mental illness involving delusional beliefs. Motivated by a desire to avoid any repeat of the original offending, I consider that they could, and most likely would, notice if KMD was expressing beliefs not grounded in reality or helpful, discuss them with her, and raise them with others in the support team if they had concerns about KMD's mental state.

[129] In Exhibit SO52, Ms Guy referred to the potential positive effects on KMD's rehabilitation and mental state of her release into the community, including meaningful employment and meaningful relationships outside of the prison environment, which will encourage a positive lifestyle with purpose and direction for the future. Ms Guy noted KMD's focus on completing her Business degree, obtaining employment and renewing connections with her family, making her goal orientated and future orientated. She also referred to the positive effects on KMD's rehabilitation and mental state of being able to renew her connection to her culture and her country, which is very important for the holistic health of Aboriginal people.

[130] In examination-in-chief, Ms Guy said that separation from culture can leave an Aboriginal person feeling empty, vulnerable, powerless and out of place. She also said cultural understanding is important when dealing with Aboriginal people.

[131] In written submissions, KMD said that, during her incarceration, she had not been given the opportunity to spend time on her country for 'cultural healing purposes', with her requests to attend cultural events having been largely denied. She said that, as an emerging female Aboriginal leader, it is very important to her and her people to have access to country. She said lack of access to country and ceremonies depletes her learning, spiritual connection to the land and her connection to her clan, which brings internal unrest.

[132] Consistently with the observations in R v KMD (No 5) at paragraphs [80] to [83], KMD referred to her exemplary conduct during the four occasions of day release, her employment for four years while in custody, her status as a low risk prisoner with no instances of violent conduct during her incarceration, and her behaviour during her court appearances, as indicative of her good behaviour, competence and capacity to communicate effectively with others.

[133] In written submissions, KMD indicated that she has held various employment positions in the prison, including as a literacy and numeracy tutor for other prisoners and a gardener foreman. She said she stopped participating in employment roles in the prison, essentially due to negative attitudes and behaviour towards her from other inmates due to her being 'an educated Aboriginal woman'. She said that she has chosen more recently to avoid those potentials for conflict and to concentrate on her continuing education.

[134] In Exhibit SO52, Ms Guy noted that KMD was recently released from custody for two days to attend her brother's funeral at the Station. KMD had no behavioural issues and returned to custody without incident. Ms Guy noted KMD had day release on two other occasions, again without incident. Ms Guy noted KMD's behaviour in prison, which has not involved any incidents of violence. This led Ms Guy to conclude that KMD is suitable for reorientation back into the community.

[135] In Exhibit SO53, Professor Ogloff opined that, while KMD has been relatively stable in prison, and her risks well managed, she has been removed from the matters that underpin her delusions and away from the stressors that can trigger behavioural manifestations of her delusional disorder. In cross-examination, Professor Ogloff opined that KMD's ability to control her thinking and emotions whilst in prison did not suggest that she could identify and manage the symptoms of her delusional disorder in the community because: (a) he had no evidence that the delusional thinking she had in the past had been eliminated; and (b) it is very common for people with delusional disorders and other forms of mental illness to manage quite well in prison or forensic hospitals because the environment and circumstances do not contribute to their disorder, that is, the belief system is not directed at particular matters in the prison, so their day to day behaviour is unaffected. Professor Ogloff agreed that the fact that a delusional belief system has not turned towards someone else whilst in prison is a fact relevant to the assessment of risk on release, but he was concerned that it is more difficult to limit contact with others whilst in the community, and if there remains underlying anger or frustration that KMD's version of events was real, then it is plausible that she would begin to form again the irrational view that other people are accountable for her circumstances, she has not been heard, she needs to be heard, and so on. Professor Ogloff explained in cross-examination that stress, such as may be seen in prison, does not necessarily lead to distress, particularly at the levels experienced by KMD in the lead up to the original offending. He said prison often separates people from the day to day distress of their ordinary lives, which is why they can manage with a mental illness whilst in custody.

[136] A difficulty with the applicability of these views to KMD is that she has expressed the belief, on numerous occasions, that she was wrongfully made the subject of a CSO because of a flawed trial, and wrongfully detained in prison because of flawed assessments of the risk she posed to the public. Those beliefs have been construed as delusional beliefs or as evidence of ongoing delusional thinking, contributing to the assessment of her risk.[4] To the extent that they are, it cannot really be said that KMD's environment and circumstances do not contribute to her disorder, or that her belief system is not directed at particular matters in the prison, making her day to day behaviour unaffected. Those beliefs have not resulted in any acts of violence on her part towards any of the psychiatrists, psychologists or other staff of the FMHT, or any of the correctional staff she has had contact with over the past 10 years.

[137] In Exhibit SO52, Ms Guy referred to KMD saying she had learnt from her time in gaol and expressed her intention not to place herself in a vulnerable position, ie not to expose herself to further incarceration. This is consistent with KMD's submissions as set out in paragraphs [109] to [110] above.

[138] In R v KMD (No 5) at paragraphs [84]-[90], I dealt with matters recorded by various psychiatrists and put to me by KMD that indicated she considered her actions on 7 May 2013 to have been justified in the circumstances. This apparent justification of her use of violence has contributed to the assessments of her risk.[5]

[139] In written submissions, KMD set out the following extract from the National Plan to End Violence against Women and Children 2022-2032 (p 74):

It is ... vital that services, and the law enforcement and justice systems, are equipped to accurately identify the person using violence. Misidentification of the victim-survivor as the perpetrator can occur when only single events or incidents of violence are considered (for example, a single act of physical violence) rather than those events or incidents forming a pattern over time or being considered within a certain context (like leaving). Victim-survivors who retaliate for their own safety and protection, or act to keep their children safe from harm, are more likely to be misidentified as a perpetrator and be charged with an offence or have a co-responding protection order issued against them. The safety of victim-survivors should be prioritised and upheld within all service and support systems, including in harm-based risk assessments.

Misidentification often results in inappropriate legal sanctions against the victim-survivor, including domestic violence orders. Other negative consequences for victim-survivors can include safety risks, involvement by child protection agencies, loss of housing and income support, mistrust of police and legal systems, long and complicated court proceedings, and negative effects on their health and wellbeing.

Misidentification can also result from biases including inequality, and/or racial and other forms of social discrimination. ...

...Victim-survivors from diverse groups, including Aboriginal and Torres Strait Islander peoples ... are at risk of being misidentified as the perpetrator ...

[140] KMD said that the above extract describes the circumstances of her 'lived experience' leading up to the day of the offending.

[141] It is not open to this Court to make factual findings that KMD was the victim of domestic violence at the hands of RL. Such findings would require sworn evidence about relevant facts from both KMD and others, including RL, as well as the opportunity to test the evidence and make submissions on both sides. Doing so would serve little purpose than to divert the Court from the task before it on this periodic review. I can accept, however, that her relationship with RL was tumultuous, unstable and conflictual.

[142] KMD submitted that her purpose in putting this material and making the submissions referred to above before the Court was to explain, but not excuse, her actions by reference to the context and to give some understanding of her emotions and thoughts at the time. She disputed the views that she was seeking to justify her actions.

[143] In Exhibit SO52, Ms Guy referred to KMD having acknowledged that she did the wrong thing on 7 May 2013 and expressing remorse for her actions.

[144] In written submissions, KMD said that she believes she has served sufficient time to have learnt from her actions, to have reflected and identified where things went wrong, the triggers and how to improve her behaviour going forward. She said she has, on many occasions, acknowledged her regret and remorse for her actions and lack of emotional control on 7 May 2013.

[145] On the basis of the evidence before the Court, I find that KMD has expressed some genuine remorse for the effects of her actions on the victims. I also find that KMD's submissions about her conduct reflect her attempts to explain it and the circumstances that gave rise to it (which do not include acceptance that she was acting on delusional beliefs the result of a mental illness), rather than her belief that the acts of violence she committed were appropriate, warranted, reasonable and acceptable in all the circumstances.

Sections 43ZH(2) and 43ZN - Will the safety of the public be seriously at risk if KMD is released on a NCSO?

[146] Section 43ZH(2)(a) of the Criminal Code obliges the Court to vary a CSO to a NCSO unless satisfied on the available evidence that the safety of KMD or the public will be seriously at risk if she is released on a NCSO.

[147] None of the evidence considered in this tranche of the periodic review leads me to revise the finding I made in R v KMD (No 5) at paragraph [139(b)] that there is no risk that, if KMD were released, she would endanger herself (other than by way of response against KMD to any violent action she might take towards members of the public). None of the parties submitted otherwise.

[148] The real issue is whether I am satisfied that the safety of the public will be seriously at risk if KMD is released on a NCSO. As I held in R v KMD (No 5) (at [142]-[143]), I must be satisfied on the balance of probabilities, in accordance with the enhanced Briginshaw standard.[6]

[149] In making that determination, I must take into account the matters in s 43ZN of the Criminal Code.

Whether KMD is likely to endanger another person - s 43ZN(1)(a)

[150] The first matter is whether KMD would, if released, be likely to endanger another person because of her mental condition (s 43ZN(1)(a)). This matter is concerned with the likelihood that KMD would engage in acts of violence which would expose other persons to danger. So much is clear from the use of the word 'likely', and also from the use of the word 'endanger'.[7]

[151] None of the evidence received in this tranche of the periodic review leads me to alter the finding I made in R v KMD (No 5) at paragraphs [140] and [144] that the likelihood that KMD would act on her delusional beliefs and endanger members of the public is low, but real rather than fanciful.

[152] In Exhibit SO53, Professor Ogloff set out his opinion that KMD presents a high risk of harming another person if released without suitable forensic mental health care. His views about what that should involve have been set out above. Professor Ogloff did not dissect this assessment of high risk into its two limbs, likelihood and magnitude. He did not give any evidence which stratified his assessment of risk. In cross-examination, Professor Ogloff agreed with what Dr Walton wrote in his penultimate report dated 20 August 2016 ('Exhibit SO32') that simply because KMD has engaged in an isolated but very serious act of violence, on an actuarial basis she will remain in a category of elevated risk of recurrence indefinitely. To my mind, that suggests that Professor Ogloff's assessment of risk is substantially weighted by the magnitude of the risk, and is not inconsistent with a finding that the likelihood of the risk eventuating is low. This is confirmed by Professor Ogloff's agreement with the 2017 HCR-20, in which Dr Das characterised the likelihood of violence as low. Dr Das's assessment of the likelihood was unchanged in the 2022 HCR-20.

[153] Consistently with that evidence, the CEOs accepted that the likelihood of KMD endangering other persons is low. The DPP did not make any particular submission regarding this likelihood (separate from the risk of harm generally), and essentially joined in the CEO's submissions on this point.

The need to protect people from danger - s 43ZN(1)(b)

[154] The next matter is the need to protect people from danger (s 43ZN(1)(b)). This matter brings into consideration both the likelihood of endangering people identified in s 43ZN(1)(a) and the magnitude of the risk of harm to people. Where the likelihood of endangering people is low but real, the greater the potential seriousness of the harm posed to people by KMD's release, the greater the need to protect members of the public.

[155] Essentially, Professor Ogloff and Dr Das assessed the risk of harm to others by reference to the acts committed by KMD on 7 May 2013, on the basis that past behaviour is a reasonable predictor of, if not future behaviour, at least the capacity for future behaviour. I accept that the seriousness of the acts of violence towards the victims engaged in by KMD on that day, which went as far as firing a gun six times at three different people, striking two of them, makes the magnitude of the risk of harm to others high.

[156] A low but real likelihood of a risk of high magnitude occurring means there is a need to protect people from danger.

[157] None of the evidence received in this tranche of the periodic review has led me to revise the findings I made in R v KMD (No 5) at paragraph [139(a)] about KMD suffering from a delusional disorder. Professor Ogloff's evidence confirms those findings and Ms Guy's evidence does not cause me to reconsider them.

[158] I find that KMD has a mental condition, namely, a delusional disorder, whereby she holds a system of delusional beliefs on which she has acted, and may act.

Relationship between mental condition and offending conduct - s 43ZN(1)(d)

[159] Again, none of the evidence received in this tranche of the periodic review has led me to revise the findings I made in R v KMD (No 5) at paragraph [139(c)(ii)]. I find that, on 7 May 2013, KMD acted on her delusional belief system, with serious aggression and violence towards three other people, firing six shots from a gun at or towards those people, causing two of them physical harm.

Adequate resources available for treatment and support in the community - s 43ZN(1)(e)

[160] As I noted in R v KMD (No 5) at paragraph [145], it is irrefutable that there is treatment and support available in the community for KMD. No party suggested otherwise. Nor did any party suggest that there are not adequate resources available for her treatment and support in the community. Rather, the CEOs and the DPP submitted that KMD's current risk profile means that she should continue to be detained pursuant to a CSO in a secure environment until her risk is reduced. That submission turns on the assessment of risk and is addressed below.

[161] In Exhibit SO53, Professor Ogloff opined that KMD would not comply with any conditions of a NCSO that required her to engage with the FMHT or manage her mental illness. In written and oral submissions, KMD confirmed that she does not wish to engage with psychiatrists or forensic mental health practitioners, whether from the FMHT or of her choosing. Her reasons for that have been referred to above. However, she has engaged in counselling with Ms Guy and has said she intends to continue to do so.

[162] Ultimately, whether KMD is likely to comply with the conditions of a NCSO depends on what those conditions are, noting her firm position in relation to psychiatric treatment, including medication. Motivated by her desire to remain out of custody, I consider KMD to be likely to comply with the conditions of a NCSO, other than any conditions requiring her to receive psychiatric treatment, medication or to engage directly with members of the FMHT.

Is the safety of the public seriously at risk? - s 43ZH(2)

[163] The CEOs submitted that, unless and until there is an amelioration in the likelihood of the risk of harm eventuating, the Court cannot be satisfied there is 'no or an insufficient risk'. It was argued that amelioration can occur if KMD engages and participates in a transition plan that 'suitably addresses forensic risk management principles'. The CEOs accepted that the likelihood of KMD endangering herself or others is low, but said KMD's lack of engagement to date 'makes her current risk profile untenable'.

[164] This is a recognition that the limb of risk associated with the magnitude of the harm is virtually static and will effectively remain indefinitely, meaning the only way to lower risk is by lowering the limb of risk associated with likelihood of the harm occurring. Questions arise about the possibility of significantly lowering an already low risk. In any event, there are also a number of difficulties with the submissions.

[165] First, the Court is not required by s 43ZH(2) of the Criminal Code to be satisfied that there is 'no or an insufficient risk'. The required satisfaction is that the safety of (relevantly) the public will be 'seriously at risk'. Secondly, in cases of this kind, where a supervised person has committed an act of violence for which they were found not guilty by reason of mental impairment, there will always be some element of risk, so a satisfaction that there is no risk is not attainable. Thirdly, it is not clear what is meant by an 'insufficient risk'. The term raises questions as to how the 'sufficiency' of the risk is to be identified or determined - insufficient to or for what? Fourthly, I do not accept that the converse of the safety of the public being seriously at risk is that there is an 'insufficient risk' to the safety of the public. What the section indicates, in its terms, is that the threshold for continuing a CSO will not be met if there is some risk to the safety of the public; it will only be met if the safety of the public is seriously at risk.

[166] As to whether the safety of the public will be seriously at risk if KMD is released on a NCSO, I take into account the findings made about the matters in s 43ZN of the Criminal Code above and, further, the following matters:

(a) Ms Guy had not observed any symptoms of mental illness in KMD across the course of her 50 hours of counselling sessions with her (see paragraph [18] above).

(b) My findings about the consequences of KMD's actions on the victims (see paragraph [47] above).

(c) My finding that KMD's next of kin (her mother) was of the view that KMD's conduct on 7 May 2013 did not have any adverse impact on KMD's next of kin or other members of her family (see paragraph [60] above).

(d) My findings about the protective factors which KMD's family would provide her if she were released on a NCSO (see paragraph [69] above).

(e) The opinions of Professor Ogloff and Dr Das and Ms Roberts that KMD presents a high risk of harming another person if released without forensic mental health treatment.

(f) The limitations of the HCR-20 assessment tool in this case (see paragraphs [77] to [83] above).

(g) My doubts about the weight or relevance of matters relied on or not relied on by Professor Ogloff in his review of the 2017 HCR-20 (see paragraphs [85], [87], [90] and [92] above).

(h) My observations about the 2022 HCR-20 assessment referred to in paragraphs [97] to [101] above, which raise some doubt about its validity in the circumstances of this case.

(i) Professor Ogloff's opinions about the nature, utility and importance in risk management of forensic mental health treatment (see paragraphs [102] to [108] above).

(j) KMD's submission about the utility of forensic mental health treatment for her (see paragraphs [109] to [110] above) and my findings that the counselling KMD has engaged in thus far, and intends to continue to engage in, has elements of a forensic approach to it, with the same goals (see paragraphs [111] to [117] above).

(k) My findings about Ms Guy's capacity to address and mitigate risk by her engagement and counselling with KMD (see paragraph [124] above).

(l) My findings about KMD's family members' capacity to address and mitigate risk by their engagement and interactions with KMD (see paragraph [128] above).

(m) The likely rehabilitative and protective benefits to KMD which would flow from living in the community with access to her country and her culture (see paragraphs [129] to [131] above).

(n) The absence, across the past 10 years, of any acts of violence on KMD's part whilst in custody, and of any attempt to abscond during outings, despite her belief that she has been wrongfully detained (see paragraphs [132] to [136] above).

(o) The reflection and learning KMD has undertaken from her experience and her time in custody over the past 10 years, which I find is strong motivation to maintain her mental health so as to prevent anything like the original offending recurring (see paragraph [110] above).

(p) My findings that KMD has expressed some genuine remorse for the effects of her actions on the victims, and that she has sought to explain the original offending and the circumstances that gave rise to it without an acceptance that she was acting on delusional beliefs the result of a mental illness, rather than a belief that what she did was justified (see paragraph [145] above).

[167] On the evidence available, I am not satisfied, on the balance of probabilities to the Briginshaw standard, that the safety of the public will be seriously at risk if KMD is released on a NCSO.

[168] By virtue of my conclusion in paragraph [167] above, I must reject the submissions of the CEOs that KMD should not be placed on a NCSO until she has participated, over a significant period of time, in a transition plan. Section 43ZH(2)(a) of the Criminal Code obliges the Court, on making the conclusion just made, to vary the CSO to a NCSO.

[169] That makes it strictly unnecessary to consider the evidence and submissions put to me about transition planning. Nevertheless, for completeness, I note the following matters.

[170] As I observed in R v KMD (No 5) at paragraph [149], the management of risk of people in custody under Part IIA of the Criminal Code who are to be released into the community is generally done by a 'step-down' process under which they transition between the two, starting with greater levels of constraints on movement and freedoms and with a gradual decrease of those constraints, with their compliance and attitudes to the constraints being closely monitored over time. This is usually done whilst the person is subject to a CSO, with a variation to a NCSO being made after participation in the transition plan over a significant period of time. The transition process occurs with the goal of reducing the supervised person's risk profile from one which satisfies the Court that the safety of them or the public will be seriously at risk within s 43ZH(2)(b) of the Criminal Code to one which satisfies the Court that the safety of them or the public will not be seriously at risk within s 43ZH(2)(a) of the Criminal Code.

[171] In Exhibit SO53, Professor Ogloff's opinion was that, in the circumstances, it was premature to devise a suitable plan for KMD's transition to the community. He stated that, by their nature, to be effective, transition plans must address: (a) appropriate care and treatment to meet a patient's needs; (b) the static and dynamic factors contributing to a person's risk for violence; and (c) a consideration of the suitability of transition accommodation options to meet the patient's clinical and public safety risk needs. He said that it is important that the patient is actively involved in the development of any transition plan, without which there can be little confidence that the patient will adhere to the plan and, if the patient does not, their clinical and public safety needs may not be met.

[172] In Exhibit SO53, Professor Ogloff stated that, given the stalemate between KMD and the FMHT, the options for her appropriate treatment and management are limited. He suggested identifying an independent clinician who KMD can trust who can help broker forensic mental health services. He said there was a risk that, if that person took positions consistent with those of the treatment providers and against KMD, she would believe they were part of the conspiracy against her. Professor Ogloff stated that the use of multi-agency case conferences involving the FMHT, Corrections, and Aboriginal and Torres Strait Islander and non-government organisation services, and KMD, might also be useful.

[173] In Exhibit SO57, Dr Das and Ms Roberts outlined the principles on which the FMHT Transition Plan was prepared. The principles are that: (a) a plan must be consistent with the risk profile; (b) engagement of the individual in the transition plan is key; (c) the individual will engage with professionals involved in their care and comply with the plan; (d) the individual will co-operate in their supervision; (e) the plan is to manage the safety of the individual and the public whilst being realistic and achievable with available resources; and (f) the plan has a staged progression so that successful engagement at one stage is the only way to ensure progress to the next stage. It was said that, if a transition plan is not in accordance with those principles, it will be unlikely to manage the risk profile of the individual.

[174] It is clear that the expert opinions regarding the need for and utility of KMD's participation in a transition plan were driven by their opinions about KMD presenting a high risk of harming another person if released without forensic mental health treatment. Furthermore, it is clear that the content of the FMHT Transition Plan was driven by that opinion and other matters relied on to support the opinion that the risk her release poses to the public is high.

[175] By way of background, the FMHT Transition Plan states that the 'most serious offence' was two counts of attempted murder, a matter repeated on the first page. In fact, the jury found that only one count of attempted murder (of RL) was established (Count 3), and two counts of recklessly endangering life (of Mrs L and Mr I) were established (Count 4 (alternative) and Count 9).[8]

[176] Also by way of background, the FMHT Transition Plan records that KMD has 54 'recorded incidents', since May 2013. However, only arguably five of those involved any form of aggression (which is confined to argumentative or abusive behaviour or swearing), reported in 2014, 2016 and 2019. The FMHT Transition Plan also records that KMD has been the victim of seven instances of verbal abuse, threats, pushing and physical assault.

[177] The FMHT Transition Plan notes that KMD has left the prison on four occasions (twice in 2018 and twice in 2022), under escort of two correctional officers, with no incident.

[178] The primary goal of the FMHT Transition Plan is to provide a safe, structured plan to support KMD in engaging with internal and external stakeholders to achieve the goal of a transition into community, all while managing the risks, safety and security of KMD and the wider community.

[179] The expectation of the FMHT Transition Plan is for KMD to commence and maintain engagement with the FMHT, which is said to be a crucial component because without it, 'there can be little confidence that clinical needs and public safety needs can be adequately addressed, particularly in a community setting'. Other expectations include that KMD commence engagement with the FMHT and actively participate, she maintain an 'ongoing relationship with [the] FMHT and/or other treating services and supports', and maintain safety of self and others.

[180] The FMHT Transition Plan identifies risks as untreated and persisting mental illness, history of serious violence with little evidence of change in risk factors, high level of risk for future violence, non-compliance and non-engagement with recommended treatment plans or professionals, no insight into her illness and need for treatment, that risk cannot be mitigated until KMD engages and progresses through the transition plan, continued belief her violence was justified and no adequate supervision and support in the community.

[181] Identified risk mitigation strategies are: (a) collaboration between the FMHT, correctional centre, KMD, her family, non-government organisations and other stakeholders; (b) KMD to engage in regular clinical reviews with the FMHT; (c) KMD to engage in psychological treatment with the FMHT; (d) KMD to comply with pharmacological treatment recommended by the FMHT, unless clinical reviews determine otherwise; (e) visits to community to be supervised by correctional centre staff, with reduction of supervision over time, and electronic monitoring when unsupervised; (f) suitable supported accommodation (relational, physical and procedural security); and (g) regular review of progress at stakeholder meetings at not less than three month intervals.

[182] Stage 1 of the FMHT Transition Plan contained seven 'aims' directed to 'DCC preparation for reintegration'. Those aims were: (1.1) KMD's agreement to the Darwin Correction Centre ('DCC') code of conduct, release of information and DCC Throughcare's reintegration program; (1.2) KMD obtaining the lowest security classification possible; (1.3) DCC Throughcare's offering of programs, provision of support, fortnightly engagement and review; (1.4) KMD obtaining 'suitable' current identification; (1.5) identifying 'beneficial activities' to be undertaken outside of the prison whilst KMD is in custody (such as banking, shopping and family interactions); (1.6) identifying post-release support people; and (1.7) identifying 'suitable' pre and post release employment and/or education opportunities.

[183] Many of these aims appear to have already been achieved. For others, it is not entirely clear whether it has been achieved, or how it will be determined that it has been achieved. For example, for aim 1.6, the FMHT Transition Plan notes that KMD has identified her family and Ms Guy as post release support people, and that DCC Throughcare 'recommends' that KMD engage with Relationships Australia and NAAJA Throughcare as well. It is unclear what the consequence would be if KMD declined the recommendation.

[184] Stage 2 of the FMHT Transition Plan contained two aims directed to 'Active engagement and treatment compliance', in purported reliance on Professor Ogloff's report (Exhibit SO53). The aims are: (2.1) DCC Throughcare to encourage KMD to engage with the FMHT, 'allowing [the] FMHT to establish rapport and develop a therapeutic alliance, permitting the team to review her mental state and assess her risks on an ongoing basis'; and (2.2) achieve engagement with the FMHT to obtain a risk profile, which will then identify the next stages of reintegration support. Under aim 2.1, the FMHT Transition Plan stated:

A compulsory and necessary initial step is for [KMD] to engage with her treating team, and in particular [the] FMHT. Engagement is defined as attending reviews and follow up appointments consistently, candidly participating in consultations, complying with treatment recommendations made by the FMHT. Consultations will include [the] FMHT Psychologist, [the] FMHT Psychiatry Registrar, Nurse Case Manager (or delegate) and the team Psychologist.

[KMD] will also be required to comply with pharmacological treatment as recommended by the FMHT, unless subsequent clinical reviews determine otherwise.

To ensure [KMD's] clinical risk factors, level of her participation in interventions and their effectiveness are monitored, and appropriately addressed prior to commencing progressive reintegration into the community.

[186] Stage 3 of the FMHT Transition Plan contained a narrative under the heading 'Active engagement, treatment compliance and graded re-integration into the community, FMHT NCSO planning'. Stage 3 repeated the desired outcome of aim 2.2 and added the following:

Includes all the elements of previous stages (including active participation in all recommended biopsychosocial interventions) AND addressing [KMD's] risk factors (including those determined by the HCR-20) to reduce the risk of reoffending. Given the nature and course of her illness, this includes:

• Ongoing psychoeducation about her mental illness, early warning signs of relapse of illness, risk factors and protective factors;
• Sessions to improve insight, and motivation to address risk factors and achieve recovery goals;
• Pharmacological treatment, adjustments of medication regime as per clinical progress;
• Psychological interventions such as identifying, modifying and attenuating delusional beliefs;
• Skill development in interpersonal relationships, support in re-establishing and maintaining personal relationships;
• Violent ideation and offence focussed intervention;
• Help seeking behaviours and support to engage meaningfully with professional services and programs;
• Collaborative work with family and carers to help them better understand [KMD's] mental illness, her risk factors and the possible antecedents to future adverse behaviours.

[187] The FMHT Transition Plan then stated that, if KMD progresses 'satisfactorily', supervised visits into the community can be introduced during this Stage. It stated that, initially, this will be with a FMHT clinician with correctional officer support, the latter of which can be tapered off gradually. It stated that, once KMD has achieved all of the above aims, and the FMHT determines it is safe to commence her graded reintegration into the community, appropriate supported accommodation options in the community can be explored. The supported accommodation must be in Darwin and must provide 'adequate physical, relational and procedural security' with 24/7 supervision by two members of staff. Initial visits to the supported accommodation will increase, leading to consecutive days of leave and overnight stays. The FMHT Transition Plan recommended electronic monitoring of KMD if she is outside of the prison and unaccompanied by correctional officers. Various potential activities for day leave were set out.

[188] The FMHT Transition Plan stated that consideration will be given to a community management order under the Mental Health and Related Services Act 1998 (NT).

[189] The FMHT Transition Plan stated that the timeline for Stage 3 is subject to KMD's satisfactory participation and engagement with the treating team, stability in her mental health and absence of risk behaviours. The Stage is to monitor KMD's clinical risk factors and her ability to cope in less supervised and restrictive settings.

[190] The FMHT Transition Plan stated that the expectations from KMD and the outcomes are that: (a) KMD will comply with any conditions set out in her supervision order; (b) KMD will actively participate in mental health assessment, mental state examination and risk assessments, monitoring and review; (c) KMD will comply with pharmacological treatment as prescribed by the FMHT; (d) KMD will self-report an improved understanding of her triggers and a range of self-management strategies; (e) KMD's day-to-day functioning will improve with 'reduced suspiciousness, increased socialisation and good engagement with her treating team'; (f) progressive transition to a NCSO in accordance with the FMHT Transition Plan, thereby demonstrating KMD's ability to progressively cope with reductions in levels of supervision, support and monitoring, without demonstrating attitudes or behaviours indicative of risk of violence or self-harm; (g) reduction in the nature and severity of violence-specific risk factors; and (h) a smooth transfer outside of the facility into community with minimal disruption or delay.

[191] In written submissions, KMD indicated she did not wish to engage with the clinical services of the FMHT, primarily because KMD does not trust the members of the FMHT, for the reasons already dealt with in R v KMD (No 5) at paragraphs [93]-[101] and [107]-[120]. KMD added that it is her experience that the FMHT have a fixed view about pharmacological and other treatment and she has had no opportunity to express her own personal medical situation or opinions, and the FMHT have a 'tick and flick approach' which does not consider the individual circumstances of, or what is best for, the individual client.

[192] In written submissions, KMD submitted that all of the Stage 2 and Stage 3 content of the FMHT Transition Plan simply continues the current stalemate situation, which has no prospect of changing or improving.

[193] I accept that the FMHT Transition Plan requires action which KMD has consistently declined to undertake over many years, and would thereby perpetuate the stalemate referred to in R v KMD (No 5) at paragraph [147]. In oral submissions, the CEOs put forward the suggestion made by Professor Ogloff referred to in paragraph [123] above as an alternative.

[194] KMD's overarching submission was that, consistent with an assessment of her risk of violence as low, she should be immediately released on a NCSO. In essence, as set out in paragraph [167] above, I have accepted that submission.

[195] Both KMD and the CEOs prepared draft NCSOs, the latter being put in the alternative to the submission that the CSO should continue in force.

[196] The following evidence is relevant to the content of the NCSO. In that regard, I have also taken into account the other evidence referred to above, particularly that of Professor Ogloff, regarding the management of risk for offenders with a mental illness in the community. I have also taken into account the principle in s 43ZM of the Criminal Code that restrictions on a supervised person's freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community.

[197] In cross-examination, Ms Guy said that, if KMD were released from custody, there would initially need to be structure with significant supervision of KMD in the community, perhaps two or three times per week, which would reduce over time if there were no incidents. She said KMD was aware of that and would welcome it.

[198] In cross-examination, Ms Guy initially said she thought KMD should probably see a psychologist or psychiatrist regularly (although that was not the only solution), but the possibly daily contact would be with frontline workers such as herself. She agreed there should be a team of people including someone who knows about mental illness.

[199] In re-examination, Ms Guy said that if KMD had a good understanding of the mental health issues of concern, and there was a structure in place to permit any of KMD's support people (including Ms Guy) to contact a psychiatrist to discuss any concerns and escalate them to intervention level if necessary, then it would not be critical to the management of risk for KMD to have regular engagements with a psychiatrist. Ms Guy said that, in having those discussions with the psychiatrist, she would also discuss the concerns and possible interventions with other members of KMD's support team to get their views.

[200] In re-examination, although she did not offer it initially, Ms Guy confirmed that she could act as the person co-ordinating the various members of KMD's support team, to meet regularly to discuss KMD's situation if she were in the community.

[201] KMD submitted she should be able to choose the professional practitioners for her ongoing care and treatment. As referred to above, she submitted that she would not be prepared to engage with any member of the FMHT as part of a NCSO, but would engage with a general practitioner ('GP') as part of her support team, in addition to Ms Guy. She said that the GP and Ms Guy could, if they had concerns about any significant deterioration in KMD's mental state that raised concerns about a risk of safety to the public, report those concerns to either a probation and parole officer or the Court. KMD submitted that doing so would neither breach their duties of confidentiality to KMD nor damage their therapeutic relationship with KMD because, effectively, such reporting would be an integral part of the therapeutic relationship.

[202] KMD proposed that the NCSO incorporate an overarching goal indicating that the NCSO would not continue up to or beyond 2030 or require a major review to revoke. She submitted that completion of the steps in the transition plan would be sufficient indication that the NCSO should be revoked.

[203] I do not accept these submissions. First, s 43ZC of the Criminal Code provides that a supervision order is for an indefinite term, subject to it being revoked pursuant to ss 43ZD, 43ZE or 43ZG. Secondly, a major review of a supervision order within the six months before the expiry of the nominal term fixed under s 43ZG is mandated by s 43ZG(5). That is not to say, necessarily, that a supervision order must be in existence on the date of such major review (s 43ZG(5A)). Section 43ZD(4)(b)(i) confirms that the Court may revoke a NCSO on an application under that section. Section 43ZH(3)(d) also confirms the Court may revoke a NCSO on a periodic review. While I accept that compliance with the conditions of the NCSO will be an important consideration in any application for revocation, it is not appropriate in the circumstances of this case, to pre-empt consideration of whether and, if so, when the NCSO should be revoked. I do not intend to include an overarching goal in the NCSO.

[204] All parties accepted that, if a NCSO were to be made, KMD should reside (at least initially) in Darwin, with her aunt and uncle. The NCSO will include a condition requiring KMD to do so. Any application to vary that condition to permit KMD to live and work at the Station can be considered in due course.

[205] The CEOs proposed that the NCSO provide that KMD be under the care of, and receive treatment from, staff, servants and agents of the CEO (Health) through the Top End Mental Health Service. KMD proposed that her support team include only Ms Guy and any other health practitioner chosen by her. I intend to adopt something of a middle ground, by providing that KMD's support team will include Ms Guy, a GP nominated by KMD, KMD's mother and aunt with whom she will reside in Darwin, and a Case Manager nominated by the Top End Mental Health Service ('the Support Team'). I have included the Case Manager, not as someone with whom KMD must engage directly herself, but as a liaison and point of contact between the members of the Support Team and the probation and parole officer for concerns about KMD's mental state to be raised, discussed and, if considered necessary, escalated by way of applications for variation of the conditions of the NCSO or, as a last resort to prevent KMD harming herself or someone else, taking KMD into custody or restraining her pursuant to s 43ZA(2A) of the Criminal Code. These conditions will be included to address concerns about adequate escalation procedures and to assist with focussing attention on the part of the members of the Support Team to any deteriorations in KMD's mental state.

[206] KMD submitted that such escalation powers, including a power proposed by the CEOs for KMD to be treated in the Royal Darwin Hospital Cowdy Ward or Joan Ridley Unit without the need for any further order, are unwarranted. I do not accept that escalation powers are unwarranted, for the reasons just stated. Nor do I accept, however, that it is appropriate to permit KMD to be treated in a secure mental health facility, without her consent, without any further order. Such a condition would pre-empt and override the powers, procedures and protections set out in the Mental Health and Related Services Act 1998 (NT).

[207] The CEOs proposed a condition subjecting KMD to any curfew imposed by the Top End Mental Health Service. KMD did not oppose the imposition of a curfew by the Court, but proposed that it be for an initial period of one month and subject to review. I intend to include a condition that KMD be subject to a curfew requiring her to be at her residence between 10pm and 6am or such other hours as directed by a probation and parole officer, with capacity for the probation and parole officer to lift the curfew and reimpose it in their discretion.

[208] The CEOs proposed a condition that KMD not leave the Greater Darwin Area, defined by reference to an area depicted on a map which excludes the Station. KMD opposed any condition that would preclude her presence on her traditional lands, including the Station and its surrounds. For reasons already referred to above, I consider it protective for KMD to be able to visit her family and her traditional lands on which the Station is located. I intend to include a condition permitting KMD to have overnight visits to the Station, with the prior permission of a probation and parole officer. It would be open to the probation and parole officer to give permission for more than one overnight visit in a row, subject to the condition that KMD reside at the home of her aunt and uncle in Darwin. Furthermore, I do not consider it necessary to confine KMD's movements to the Greater Darwin Area, meaning she will be free to travel to, and remain at, places in the Northern Territory, subject only to the requirements of any curfew.

[209] There will be a condition, to which all parties agreed, that KMD must not contact, directly or indirectly, the victims, or remain at any place where the victims may be living, working or visiting. This condition would require KMD, if she came upon any one of them accidentally or unexpectedly (say, in a public place) to immediately leave that place. There will also be conditions prohibiting KMD from entering or remaining at any place within 5 km2 of the residences of RL or Mrs L, or from leaving the Northern Territory except with the prior permission of a probation and parole officer. KMD will also be subject to electronic monitoring, so her whereabouts can be tracked if necessary.

[210] The CEOs proposed a condition that KMD not be permitted to have contact with her child with RL, R, or her child with JC, M, except in accordance with a parenting plan or order made under the Family Law Act 1975 (Cth) ('Family Law Act'). KMD submitted that there should be no such condition, that she should be free to make contact with M (as negotiated with JC), and that her contact with R should only be permitted if he were to make contact with her. There is no evidence before the Court regarding the terms of any parenting plan or order relating to the children, including whether there is a prohibition against KMD having contact with them or whether they are silent about such contact. Any such parenting plan or order will have the legal obligations and consequences prescribed by the Family Law Act, which will (I assume) operate regardless of whether contact is initiated by the child or by KMD. A condition in the NCSO that KMD abides by a plan or order is no more restrictive of her freedoms as a parent than any parenting plan or orders themselves. Given the concerns raised by RL and Mrs L about the effects of the original offending upon the child, R, I consider it appropriate to include in the NCSO the condition proposed by the CEOs. KMD has submitted she should be indemnified from prosecution for breaching the NCSO or the Family Law Act or other legislation if either R or M contact her voluntarily, including accidental or unexpected contact. This Court does not have the power to indemnify KMD from prosecution under other laws. If she were contacted by either child, or came into contact with them unexpectedly or accidentally, and took no further action to breach a prohibition on contact (such as continuing contact which was prohibited), I expect that would provide a reasonable excuse and defence to any prosecution under other laws. Consequently, I do not intend to include the condition proposed by KMD in the NCSO.

[211] KMD submitted that there should not be a condition, as proposed by the CEOs, giving authority for her to be arrested and taken into custody to be brought before the Court as soon as practicable if she were to breach a condition of the NCSO. She submitted that alleged breaches should simply be brought back before the Court to be dealt with. Section 43ZF of the Criminal Code sets out the powers of a member of the Police Force to apprehend a person reasonably suspected of breaching a supervision order, and the authority to detain a person who is apprehended. It provides that an application for variation of a NCSO is to be made to the Court under s 43ZD or 43ZE if a person is apprehended under the section. The section sets out the means by which a breach of a supervision order is to be brought before the Court to be dealt with. The proposed condition is consistent with s 43ZF and I see no reason not to include it.

[212] The CEO (Health) is required to file periodic reports at intervals of not more than 12 months (s 43ZK), which may form the basis for a periodic review under s 43ZH of the Criminal Code, during which the Court may confirm a NCSO, vary its conditions, vary it to a CSO or revoke it (s 43ZH(3)).

[213] Given the change of the CSO to a NCSO, I intend to require the filing of a periodic report within three months of when the NCSO takes effect, to ensure the Court is kept informed of KMD's progress under its terms.

[214] The NCSO I propose to make is annexed to these reasons.

[215] I will hear the parties as to the appropriate commencement date and any practical difficulties in the intended operation of the terms of the NCSO to be made.

1. The Custodial Supervision Order made on 3 June 2015 and as varied on 14 December 2015 is revoked, with effect from [DATE].
2. Until that date, the General Manager of the Darwin Correctional Centre is permitted to allow KMD to leave the Centre for the purposes of transitioning to a Non-Custodial Supervision Order. During all such periods of leave, KMD is to comply with all reasonable directions of NT Correctional Services staff.
3. With effect from [DATE], KMD is subject to a Non-Custodial Supervision Order pursuant to s 43ZA(1)(b) of the Criminal Code Act 1983 (NT).
4. During the period of the Non-Custodial Supervision Order, KMD is subject to the following conditions:

(a) KMD will be under the care of and receive support from a support team comprising the following people: > > > (i) Janet Guy, social worker; > > > > (ii) KMD's mother; > > > > (iii) KMD's aunt; > > > > (iv) a General Practitioner nominated by KMD who has consented, in writing, to act in this capacity after being provided with a copy of the Court's reasons for decision in R v KMD (No 5) [2022] NTSC 69 and R v KMD (No 6) [2023] NTSC 51 and this Non-Custodial Supervision Order; and > > > > (v) a staff member of the Top End Mental Health Service ('TEMHS') nominated by the CEO (Health) to act as the Case Manager,

(b) The identities of the members of KMD's family who are members of the Support Team are suppressed from publication.

(c) The CEO (Health) will notify the Court, KMD, the other parties and the members of the Support Team of the person nominated to be the Case Manager and their contact details at least 7 days before the date referred to in Order 3.

(d) KMD will notify the Court, the CEO (Health), the other parties and the members of the Support Team of the person nominated to be the General Practitioner and their contact details at least 14 days before the date referred to in Order 3. KMD will provide the Court with the General Practitioner's written consent to act in this capacity.

(e) If any of the members of the Support Team become unable or unwilling to act in this capacity, KMD or the CEO (Health) (as applicable) must nominate another person who is able and willing to act in this capacity. The nomination is to be made as soon as practicable with the applicable party to give written notice of the nomination to the Court, the other parties and the members of the Support Team. In the case of the General Practitioner, KMD will provide the Court with their written consent to act in this capacity.

(f) KMD will undertake counselling with Janet Guy at least weekly, or at such longer intervals as Ms Guy considers appropriate and informs members of the Support Team in writing (which may include by email).

(g) KMD will attend all medical appointments advised by the General Practitioner.

(h) The role of the Case Manager is to:

(i) liaise with Janet Guy and KMD's probation and parole officer on a regular basis to discuss KMD's mental state and progress in the community; and

(ii) be a point of contact for KMD's probation and parole officer and any member of the Support Team who has concerns about KMD's mental state to be able to raise those concerns with the Support Team for consideration of additional care, support or intervention to be provided to KMD; and

(iii) consult with KMD's probation and parole officer, other members of the Support Team and, if necessary, other members of the TEMHS regarding the need for any steps to be taken pursuant to ss 43ZD or 43ZE of the Criminal Code Act 1983 (NT) or Order 5; and

(iv) report significant concerns to the Director of Public Prosecutions for consideration of the making of an urgent application to the Court pursuant to s 43ZE of the Criminal Code Act 1983 (NT) and/or the Authorised Person referred to in Order 5.

(i) KMD will reside at the home of her aunt and uncle.

(j) The address and location of KMD's residence is suppressed from publication.

(k) KMD will be under the ongoing supervision of a probation and parole officer, and must obey all reasonable directions of a probation and parole officer related to her supervision.

(l) KMD will report to a probation and parole officer within two clear working days of the date in Order 3.

(m) KMD will be subject to a curfew and must be at the residence referred to in Order 4(i) between 10pm and 6am, or such other hours as directed by a probation and parole officer (subject to a personal, medical or dental emergency). The probation and parole officer may lift the curfew, either for a specified period of time or indefinitely, and may reimpose it, as they see fit.

(n) KMD may, with the prior permission of a probation and parole officer, have overnight visits with her parents or other family members at the Stations.

(o) The names and location of the Stations referred to is suppressed from publication.

(p) KMD must not contact, directly or indirectly, or remain at any place where the victims, RL, Mrs L or Mr I, may be living, working or visiting. KMD must not enter or remain at any place within 5 km2 of the residences of RL or Mrs L.

(q) KMD is only permitted to have contact with the children R and M in accordance with any parenting plan or order made pursuant to the Family Law Act 1975 (Cth).

(r) The identity of the victims and the children (including their dates of birth) is suppressed from publication.

(s) KMD must not leave the Northern Territory without the prior permission of a probation and parole officer.

(t) KMD must wear or have attached an approved monitoring device in accordance with the directions of a probation and parole officer, and allow the placing, or installation in, and retrieval from, the premises or place of residence of such machine, equipment or device necessary for the efficient operation of the monitoring device.

(u) KMD must comply with the electronic monitoring rules as set out in the Rules for Electronic Monitoring document.

(v) KMD must not possess, use or have access to any firearm.

1. Pursuant to s 43ZA(2A) of the Criminal Code Act 1983 (NT), the CEO (Health) may authorise a person who may use any reasonable force and assistance:

(a) to enforce this order; and > > (b) take KMD into custody, or to restrain KMD, in order to prevent KMD harming herself or someone else.

2. If KMD breaches any condition of this Non-Custodial Supervision Order, members of the Northern Territory Police are authorised to apprehend her, take her into custody and convey her to the Darwin Correctional Centre, whereupon the General Manager of the Darwin Correctional Centre is authorised to receive her and hold her in safe custody, to be brought before the Court as soon as practicable.
3. The appropriate person (the CEO (Health)) is to file and serve a s 43ZH report by close of business on ......................................
4. The matter is listed for mention at ..... on ...................................
5. The parties have liberty to apply on short notice.

[1] The Queen v KMD (No 5) [2022] NTSC 69 ('R v KMD (No 5)'). The defined terms and abbreviations used in these reasons are the same as used in the reasons in R v KMD (No 5). These reasons are to be read with the reasons in R v KMD (No 5).

[2] The Queen v KMD [2015] NTSC 31 at [15].

[3] KMD denied that she was verbally aggressive as asserted in these interactions and, on the basis that the CEOs and the DPP confirmed that the report referring to these matters was not being tendered and no reliance was being placed by them on the report, I ordered that it be removed from the Court file. The characterisation of KMD's behaviour as 'verbally aggressive' is therefore unfounded.

[4] See, for example, the 2017 HCR-20, which includes KMD's views about her wrongful detention as an indicator of the presence of her ongoing symptoms of a delusional disorder, which is repeated in the 2022 HCR-20.

[5] This is referred to in Professor Ogloff's evidence set out in paragraphs [86]-[87] and [126] above. It is also referred to in the FMHT Transition Plan list of identified risks as set out in paragraph [180] below. It is also referred to in the 2017 HCR-20 (at C1 - Insight - Violence Risk: 'There is evidence to suggest that ... KMD's poor insight into her mental disorder with her minimising and/or rationalising her violence and risk factors heightens her proneness to violence although, in the context of ... KMD's continued refusal to engage in the assessment process, this is unclear' (emphasis added)), which is repeated in the 2022 HCR-20.

[6] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[7] See NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 at [58]- [59] per the Court.

[8] R v KMD (No 5) at [7], [8], [13].