The Queen v KMD & Ors

CRIMINAL LAW - mental impairment - Part IIA of the Criminal Code - periodic review under s 43ZH(2) of the Criminal Code - supervised person had been found not guilty by a jury because of her mental impairment - not permissible to revisit the jury's decision.

Criminal Code 1983 (NT) s 43ZA, s 43ZD, s 43ZE, s 43ZF, s 43ZG, s 43ZH, s 43ZJ, s 43 ZK, s 43ZL, s 43 ZM, s 43ZN

Juries Act 1962 (NT) s 6

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, The Queen v KMD (No 3) [2017] NTSC 95, referred to.

NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618, distinguished.

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 Queen v KMD & Ors (No 4) [2021] NTSC 27

CHIEF EXECUTIVE OFFICER DEPARTMENT OF CORRECTIONAL SERVICES

• [1] This periodic review commenced on 9 November 2020. Dr Das attended the Court and KMD asked him questions. Dr Das is a Consultant Forensic Psychiatrist and forms part of the Forensic Mental Health Team (FMHT) within the Top End Mental Health Service (TEMHS), a work division within the Department of Health. He has been engaged as KMD's assigned treating psychiatrist since December 2016 and has been providing the Court with reports pursuant to s 43ZK since April 2017.
• [2] In short, there have been no relevant changes to KMD's diagnosed condition of Delusional Disorder or her risk profile since I published my detailed reasons in July 2017 in The Queen v KMD (No 3) [2017] NTSC 95. Those reasons followed some six days of hearings which included oral evidence from a number of expert witnesses including psychiatrists Dr Walton and Dr Parker and psychologist Mr Re Acacio, and detailed written submissions from senior counsel who had appeared for KMD at the hearings.
• [3] KMD has been examined by a total of nine psychiatrists, including three employed by TEMHS. For convenience I am attaching a summary of the relevant medical evidence prepared by Ms Brebner, counsel for the CEOs, attached to the CEOs' written submissions of 15 January 2021.[1]

• [4] Dr Das provided a further s 43ZK report concerning KMD on 29 July 2020.[2] With the exception of a meeting with FMHT psychologist Re Acacio on 13 July 2020, KMD has continued to refuse to engage with Dr Das or any other members of the FMHT.
• [5] KMD has been engaging herself constructively in programs at the prison and continues to undertake college courses through correspondence achieving high distinctions or A's. She remains polite and cooperative and does not display any evidence of positive psychotic symptoms.[3]
• [6] KMD continues to hold onto her core belief that her son (RL Jnr) was sexually abused by his father.[4] She continues to refuse to acknowledge that there is anything wrong with her, to engage with those who are attempting to assist her, and to participate in the counselling and other treatment recommended to her by the psychiatrists.[5]

• [7] Dr Das' opinion that KMD suffers from a Delusional Disorder remains unchanged. Delusional Disorder comes under the rubric of "schizophrenia spectrum disorder under DSM 5". Dr Das' diagnosis is the same as that expressed by the other eight psychiatrists who have previously had dealings with KMD ever since her serious offending on 7 May 2013.[6]
• [8] Her offending included her shooting a gun at and unlawfully attempting to kill one person (RL Snr, the father of RL Jnr), recklessly endangering the life of another person (RL Snr's mother), and recklessly endangering serious harm to another person (a stranger).
• [9] Dr Das went on to say, at [6.1]:

She presents with a well systematised persecutory delusional system. This is associated with a degree of psychosocial impairment, irritable and dysphoric mood, which can usually be understood as a reaction to her delusional belief. Her delusional disorder has been of a continuous nature.

• [10] Dr Das' previous opinions regarding KMD's risk profile remain unchanged.
• [11] Those opinions were partly informed by the HCR-20 risk assessment carried out in April 2017 by Dr Das, Mr Re Acacio and Ms De Garr, a registered mental health nurse and KMD's then case manager.[7] Amongst other things the HCR-20 risk assessment recorded dynamic risk factors which include her absence of insight into her mental disorder, her need for treatment and ongoing symptoms of a delusional disorder.[8]
• [12] The authors concluded that if KMD commits violence in the future, the most likely scenario is a repeat of her past violence, with the possibility of fatality. They said:

The imminence of such a scenario is difficult to predict. Early warning signs may be difficult to detect because of Ms KMD's guardedness and unwillingness to be subject to monitoring of her mental state and thought process. Such a scenario is likely to be of low frequency, however, potentially associated with a catastrophic outcome.[9]

• [13] In his report of 5 April 2017 (Ex SO 37) Dr Das also said that:

It is my opinion that Ms KMD could put herself at a very high risk of harm to self because of her risk behaviours. In the event of repeat of an incident similar to the index incident, she is likely to come to harm because of other people's response to her carrying and discharging a firearm or making threats.[10]

• [14] In KMD (No 3) I examined in some detail Riley CJ's reasons and analysis concerning the level of risk posed by KMD to others. These included earlier descriptions by Drs Kini and Ventura of the risk being a "high level of risk" (at [34]). I then discussed KMD's current position as at 2017 - from [57] - [76]. From [77] - [108] I discussed KMD's prognosis and the risk to the safety of her and others. This included Dr Parker's opinion that KMD remained "a significant risk of serious offending if she was to return to the community if she was not treated with medication". ([96](a)). See too [96](b) & (c). See too [110], where I referred to the need to protect other people from danger that she could pose, if released.
• [15] In his latest report (Ex SO 45) Dr Das repeated his opinion that if KMD is not in custody there remains a risk that given the opportunity "she is likely to act on her delusional system of her son being abused along with the perception that she is subject to victimisation and persecution by her ex-partner and [others]".[11] In that event, she is likely to engage in violence of a similar kind to that in which she engaged in May 2013, with catastrophic consequences possibly serious injuries or death to a person.[12]

• [16] Dr Das's previous recommendations remain unchanged. They are that "KMD's care, treatment and risk management can only be provided in an appropriate secure facility."[13]

• [17] On 16 October 2020 KMD attempted to file a summons (the Summons) seeking an order to:

Amend the order made by Chief Justice Riley dated 6 October 2014 in The Queen v KMD (21319940) to allow the First Respondent to copy and inspect the document returned by the Commissioner of Police under the First Respondent's subpoena filed 23 September 2013.

• [18] The Summons was accompanied by an affidavit affirmed by KMD on 16 October 2020. After the hearing on 9 November 2020 Ms Brebner kindly assisted KMD to file the Summons and to reaffirm and file her affidavit.[14] The following documents were annexed to that affidavit:

(a) A copy of a subpoena addressed to the Commissioner of Police dated 23 September 2014 (not 2013) requiring production of all records and information in relation to PROMIS entry number 5672597 including documents and information "in relation to the investigation concerning the Defendant's son, RL Jnr ... from the date of commencement of the investigation" on 3 October 2014.

(b) An email chain which included an email from Riley CJ's associate dated 6 October 2014 reflecting his Honour's order granting leave for the parties to copy and inspect those documents subject to written undertakings by counsel not to copy or show the documents in a bundle marked "strictly confidential for the eyes of legal representation and the court only" to anyone other than solicitors and counsel acting in the proceeding.

(c) Copy of emails in August and September 2017 between KMD's then lawyers Robert Welfare and Associates and her previous lawyers Ward Keller regarding a password protected electronic copy of a record of interview of RL Jnr on 13 January 2013 at the Sexual Assault Referral Centre (SARC) clinic.

• [19] At KMD's request, Dr Das attended Court and KMD asked him a number of questions. He repeated his opinions that:

(a) KMD "actively poses a risk of harm to others, serious harm ... Potential victims and the public has to be protected. She needs an appropriate level of security. That cannot be provided outside of where she currently is."[15]

(b) "Any level of security outside of her current custodial setting would essentially open up the possibility of her absconding, her being at large, and posing a risk to others."[16]

• [20] KMD questioned Dr Das about the fact that she had not been involved in any further incidents of violence since her offending in 2013, and put to him that if someone had a delusional disorder he would expect that person's mental condition to have deteriorated if they were not medicated. Dr Das agreed that there are some people whose condition would deteriorate, but others whose condition would "remain static with their underlying belief system."[17]
• [21] Dr Das rejected KMD's propositions that the absence of any aberrant behaviour on her part over the last few years supports her contention that she does not have a delusional disorder.[18] He also rejected her assertion that she is not "likely to offend if [she is] placed back in the community".[19]
• [22] KMD also attempted to ask Dr Das a lot of questions about matters that predated his involvement with her. Some of those questions went back to events in 2013, and concerned statements made and opinions expressed by lay people, such as witnesses in the criminal proceeding many years before Dr Das became involved. These questions were not relevant to Dr Das' opinions concerning her current mental state and risk profile. I had previously informed KMD that the purpose of the periodic review was to consider her present situation and not to revisit historic evidence concerning her mental state at the time of her offending or at the time when she apparently accepted counsel's advice to plead not guilty on account of mental impairment rather than defend a jury trial.[20]
• [23] Notwithstanding that, I acceded to KMD's request to consider her application under the Summons for access to a record of an interview that occurred in 2013 when her son was interviewed by police officers at the SARC. KMD argued that interview was relevant because it would show that there is and always has been a rational basis for her to believe that her son was sexually abused because her son had said that during the interview. She said those allegations are vitally important to the risk which is said to be posed by her to others.[21] However, KMD told the Court that she had never seen a video or a transcript of the interview. Her understanding that her son had said these things is based on information provided to her by others, including a person SI who was a social worker with SARC.[22] KMD said that SI told her that her son "made a disclosure to her" and that she was obligated to report it, and that "I was never told what the disclosure was."[23]
• [24] KMD said that her then lawyer, Ms McMaster, had seen a video recording of the interview but that some kind of order was in place preventing KMD from seeing it. It had been suggested that she may have found it unduly stressful if she was shown the video at that time, namely at the time of her trial. Mr Nathan SC was requested to locate the video and associated transcript and if possible, the relevant order.
• [25] Just before the completion of the hearing on 9 November 2020 MKD handed up a 63 paragraph written submission (KMD's November 2020 Submissions). This document had not been provided to the other parties.

• [26] At the hearing on 26 November 2020 Mr Nathan SC produced a copy of the transcript of an interview on 11 May 2013, and submitted that it was not relevant. Notwithstanding that, I permitted KMD to receive a copy, which I marked as MFI C, and ordered that KMD not show it to any other person apart from a lawyer retained to represent her in relation to this matter.
• [27] KMD also requested a copy of the video of the interview, and permission to show the transcript and video to some other people, such as an expert. I made directions requiring her to identify the names and occupations of the persons to whom she wished to show the transcript and/or video, and of the reasons why she wished to show them to those people. I also made directions requiring the DPP and CEOs to provide submissions in response to KMD's request, and also in response to her written submissions. I also suggested that Dr Das be asked to provide an addendum indicating whether any of his opinions might be different in light of the information in MFI C (which I very much doubt).
• [28] I adjourned the periodic review to 8 February 2021 and made directions for the DPP and the CEOs to file written submissions in answer to KMD's written submissions of 9 November 2020. On 29 November 2020 KMD wrote a letter stating that the transcript of the interview of 11 May 2013 (MFI C) was not the transcript that she was seeking. Rather she was seeking a transcript of her son's interview with police officers Coles and McNamara at the SARC on 15 January 2013 in the presence of SI.
• [29] Subsequently, counsel for the DPP and for the CEOs, and officers of the Court, made extensive enquiries about such a transcript and were unable to locate it, or any record of it ever having been in the possession of any of those bodies. It is worth noting that the interview took place almost four months prior to the offending the subject of the criminal proceedings. It was not conducted in the course of the police investigations following the offending on 7 May 2013.

• [30] Counsel for the DPP and the CEOs provided written submissions in response to KMD's submissions of 9 November 2020. Although KMD had requested a copy of the transcript of 9 November 2020, it appears that she had not received it. Accordingly, I agreed to further adjourn the proceedings so that she could prepare and send written submissions in reply to those of the DPP and CEOs. I would then complete the review on the papers following receipt of those submissions.
• [31] At the resumed hearing on 8 February 2021 I dismissed the Summons and provided ex tempore reasons. In short, I concluded that the statement / record of RL Jnr that was provided to the Court on 3 October 2014 under the subpoena dated 24 September 2014 was the statement made on 11 May 2013 (a copy of which I had marked as MFI C). It was not the statement said to have been made on 15 January 2013. There is no evidence of any of the parties or the Court ever having had possession of that document.
• [32] Shortly after the hearing on 26 November 2020 the Court had written to the parties suggesting consideration be given to whether or not the new ATC Life Skills Camp might be suitable for KMD's detention, an institutional report should be ordered, and another psychiatrist should be engaged to interview and assess KMD.
• [33] Counsel for the CEOs informed the Court that Dr Das considered that the ATC Life Skills Camp would not be suitable because the risks of harm could not be managed except in a custodial environment. In addition to the fact that KMD still refuses to accept any meaningful treatment, her refusal to engage with Dr Das and other experts continues to make it difficult for anyone to assess what additional risks are likely to flow from her being released from custodial supervision. KMD said that she had made some enquiries about the ATC Life Skills Camp, which have led her to understand that a condition of her participating there would be that she accept medication, a condition that she would reject. She is however prepared to further explore that possibility. Upon the information that I have, I do not consider that the ATC Life Skills Camp would be a practicable alternative to custody in a custodial correctional facility given KMD's circumstances.
• [34] Although counsel for the CEOs points out that an institutional report might better inform the Court and the parties of the facilities available at the ATC Life Skills Camp, I see no point in seeking such report unless KMD is keen to proceed further down that track and willing to cooperate with those involved in the process.
• [35] Nor do I propose to suggest or require the CEOs to engage another psychiatrist. KMD has already been interviewed by numerous other experts, including her own. I have no reason to believe that she would cooperate any more with yet another expert, than she has with the experts who have been involved with her care over the last three or four years.

• [36] On 1 March 2021 the Court received further written submissions from KMD under cover of her letter dated 18 February 2021 (KMD's February 2021 Submissions). These responded to some of the CEOs' Submissions and further to the evidence of Dr Das. KMD also repeated matters already well understood and discussed in previous decisions relating to her, such as those referred to in ss 43ZA(2), 43ZH(2), 43ZM and 43ZN(1) of the Criminal Code and the relevant onus and standard of proof. She repeated that she is not a risk. She said she would like to be able to rent and live in an apartment in Darwin and continue her studies at the University.
• [37] KMD continued to challenge the opinions of Dr Das, often by reference back to selected parts, or paraphrases, of evidence previously given by other psychiatrists, particularly Dr Walton and also Dr Parker, all of which have already been the subject of consideration by the Court in the course of previous reviews. She accuses Dr Das and the CEO Health as simply being advocates for medicating her. She also says that some of the other psychiatrists have been proven incorrect because her condition has not suffered further serious deterioration despite her not having medication.
• [38] KMD repeated her contentions that she does not have a delusional disorder because there has been no deterioration in her condition, and that her ability to cope with various stressful events in her life while in custody indicates that she will be able to cope with outside stressors if released from a custodial facility.

• [39] In short, KMD continues to maintain that:

(a) see does not have, and never did have a mental impairment; and

(b) even if the Court disagrees with that contention, she should not be subject to a custodial supervision order.

• [40] KMD disagrees with the diagnosis of delusional disorder and with the conclusion that she was suffering from mental impairment at the time when the Court made the custodial supervision orders. She referred at length to sexual and physical abuse of her son RL Jnr by his father and others since RL Jnr was two and her taking RL Jnr to the SARC in January 2013. She maintains that her continuing belief that her son was sexually abused was and remains a rational belief. However, she insists that the psychiatrists who initially provided reports about her wrongly assumed that she did not hold such a rational belief and speculated that she had a delusional disorder. KMD also contends that Dr Smith was unduly influenced by misleading information provided to him by Ms CC and that his opinion that she had a delusional disorder was simply adopted and repeated by other psychiatrists who did not attempt to discover that her belief was rational and not delusional.
• [41] I agree with the submission made on behalf of the CEOs that it is not permissible for this Court to disturb the jury's finding from 4 July 2014 that KMD was not guilty of the offences alleged against her, because of her mental impairment. It is not permissible to substitute the jury's functions and duties with the views of this Court.[24]
• [42] In any event, as I have pointed out, her diagnosis of delusional disorder has been expressed and repeated by each of the nine psychiatrists who have examined her, including Dr Walton who was privately engaged by lawyers assisting KMD. As counsel pointed out, KMD's insistence that the initial assessing psychiatrists, specifically Dr Smith, made errors in their assessment and took comments she made out of context, is consistent throughout KMD's engagement with the psychiatrists. This was first noted by Dr Lester Walton in his report dated 25 February 2014[25], and then by Dr Andrew Ellis in his report dated 30 April 2014[26], where he reported that KMD believed comments made by her were 'overplayed' by other psychiatrists. Notwithstanding that she made these points to the psychiatrists, they still reached the same conclusions as to her diagnosis. The only change in her position since those earlier interactions is that she now accepts that her son is no longer being sexually abused and is not presently in any danger.
• [43] KMD also disagrees with Dr Das' concerns about her ability to cope with outside stressors that might trigger a repetition of similar offending. She points to the continuing stresses upon her life within the prison system and her ability to deal with those. Although she put these points to Dr Das, he maintained his opinion concerning her inability to cope with particular stressors outside of the custodial environment.
• [44] KMD also submitted that she has served sufficient gaol time for her offending, and that her lawyers had originally told her that she would be out of gaol by Christmas 2014. Whatever might have been her aspirations and expectations, the fact is that the nominal sentence imposed under s 43ZG is 16 years from 7 May 2013. KMD continues to minimise the significance of her offending and the consequences of her actions on the victims, one of whom was a complete stranger to her.[27]

Continuation of custodial supervision order - "risk"

• [45] Counsel for CEOs first referred to s 43ZM which requires the Court to take into account the need to impose minimum restrictions on a supervised person's freedom and personal autonomy on the one hand and the maintenance and protection of the safety of the community on the other.
• [46] Counsel then referred to s 43ZH(2) of the Code, pointing out that:
  1. The question of "risk" is central to the Court's consideration and application of the 'seriously at risk' test. The concept of risk may manifest in any particular matter through either the likelihood of an adverse event occurring or, alternatively, the significance of harm which may result from an adverse event, or a combination of both.
  2. Issues of community safety and "risk" are fundamental considerations through the scheme of Part IIA.[28] Although the issue of "risk" is expressed having regard to both the supervised person and the community, it is the risk which a supervised person may objectively present to the public which the Parliament primarily intended to address when prescribing the procedures enacted by Part IIA.[29]
• [47] As Riley CJ said in KMD (No 1)[30]:

The risk assessment must reflect both the likelihood of conduct of concern occurring and the magnitude of the harm that may result from any such conduct. The legislation calls for an assessment of the degree of likelihood of the occurrence of the risk along with the nature of the risk and its consequences. Some level of risk will, almost always, be present. The extent of the risk must be weighed in the balance in determining the nature of the supervision order to be imposed.

• [48] Other relevant considerations include the availability of treatment (including for the purpose of rehabilitation)[31], and the requirement that supervised persons should not generally be in custody at a Correctional Centre unless there is "no practicable alternative".[32]
• [49] KMD referred to s 43ZN of the Code[33] and in particular s 43ZN(a) which requires the Court to have regard to whether she "is likely to, or would if released be likely to, endanger" herself or another person because of her mental impairment condition or disability.
• [50] KMD quoted the last sentence of [6.2] of Dr Das' report where he said:

Such a scenario is likely to be of low frequency, however, potentially associated with a catastrophic outcome including serious injuries or death to a person.

• [51] That sentence occurred at the end of a long paragraph where Dr Das said that his opinion regarding KMD's risk profile remains unchanged, and that if KMD commits violence in the future, the most likely scenario is a repeat of her past violence, which could result in death and or serious psychological and physical harm to victims including bystanders. He also said that:

The imminence of such a scenario remains difficult to predict. Early warning signs may be difficult to detect because of Ms KMD's continued guardedness and unwillingness to have her mental state and thought processes monitored.

• [52] Then followed the sentence quoted by KMD.
• [53] KMD set out the following extracts from a decision of the Victorian Court of Appeal in NOM v Director of Public Prosecutions.[34] At [57] the Court of Appeal found that the trial judge had made an error of law because he:

wrongly focused upon the gravity of the potential harm to others involved with such a risk in assessing the likely danger to others as "significant". In assessing the likely danger to the appellant, another or others in general under s 40(1)(c), the low likelihood of such a risk materialising should have been the critical consideration, rather than the gravity of the harm in the event that the risk eventuated.

• [54] And, at [58] the Court of Appeal said:

This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the "chance", "risk" or "peril" of it eventuating is minimal, then a person subject to a supervision order is not necessarily "likely to endanger" himself or others under s 40(1)(c).

• [55] Although s 40(c) of the Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 (Vic) is relevantly identical to s 43ZN(a) of the Code, the factual scenario in that manner was substantially different to that in the present case. The appellant had been the subject of supervision orders for 20 years following a charge of murder in 1987. In 2000 he commenced clozapine treatment and his mental health improved such that his custodial supervision order was varied to a non-custodial supervision order in 2008. This was largely due to evidence from the appellant's consultant forensic psychiatrist and his case manager to the effect that the appellant had made steady progress since 2000 because of his current pharmacological treatment of clozapine, and that there would be no serious endangerment caused by a variation of the custodial order to a non-custodial supervision order.
• [56] By the time of the hearing of his application for revocation of the non-custodial supervision order in 2010 he had continued to accept the medical advice and treatment and fully complied with the conditions of his non-custodial supervision order. Each of the appellant's supervising psychiatrist, treating psychiatrist and registered psychiatric nurse fully supported his application for revocation. "Each of them gave unequivocally positive, if not glowing, recommendations of the appellant's insight into his impairment and the steps taken to monitor and control it."[35] The appellant's treating psychiatrist testified that there were no concerns relating to risks of non-compliance. The registered psychiatric nurse reported that the appellant was very well organised and clear on all aspects of his treatment and welfare, and she agreed with the evidence given by the supervising and treating psychiatrists that there was no evidence for any expectation of non-compliance.[36] Moreover, the Secretary to the Department of Health did not contest the appellant's application for revocation, and indeed supported his application when the appeal was heard.
• [57] The trial judge refused to release the appellant from the non-supervision order because he considered there was a risk that he would cease complying with his medication regime. He said that: "a history of 10 years of compliance with successful treatment is not long enough in my view."[37] The Court of Appeal was critical of the trial judge's failure to also take into account the whole 20 years during which the appellant had been under supervision and his excellent progress following his full cooperation with the treatment regime which he began in 2000.
• [58] I agree with and consider particularly relevant the following features stressed by the CEOs[38]:

38.1 Ms KMD has always maintained, and continues to maintain that she does not suffer from a mental illness. She is suspicious of mental health professionals and remains either or both, unable and unwilling to give informed consent to recommended treatment plans, particularly those which involve the administration of psychotropic medications;

38.2 She has been unwilling to accept the unanimous advice of psychiatrists, particularly with respect to, at the least, a trial of antipsychotic medications. She has subsequently declined to participate in tests to determine both her static risk factors, and dynamic risk presentation.

38.3 The illness remains largely untreated since the commission of the index offence. It is the course of the illness that if left untreated, a patient's presentation will deteriorate over time, which serves only to increase the likelihood of risk.

• [59] KMD says that she will comply with any condition that the Court imposes if it releases her from custodial supervision.[39] I reject that assertion. It is clear that she will not comply with conditions commonly imposed under non-custodial supervision orders designed to minimise risks, such as conditions requiring her to cooperate with mental health professionals and accept their advice or treatment.[40]
• [60] In my view there is no reason to doubt the validity of the opinions expressed by Dr Das concerning her unchanged risk profile and the continuing applicability of my previous state of satisfaction that the safety of KMD or the public will be seriously at risk if KMD is released on a non-custodial supervision order.[41]
• [61] I remain conscious of the requirements of ss 43ZH(2)(a), 43ZM and 43ZN, and of the need to apply the Briginshaw principle[42] when weighing the relevant factors, and considering and applying the two competing principles in s 43ZM.
• [62] Regrettably, there is still no practicable alternative, given the circumstances of KMD, but to continue to have KMD committed to custody in a custodial correctional facility.[43] There is no evidence that her family's rural outstation, or a flat in Darwin, or anywhere else in the Northern Territory, would be suitable to manage the static and dynamic risk factors that KMD may present, particularly to the broader public.

• [63] KMD refers to the fact that there is an apparent impasse because of her refusal to accept the medications and other treatment recommended by the medical experts on the one hand, and the desires and attempts by the CEO Health to have her given such medications against her will. Because of her refusal to cooperate with the recommendations of the medical experts there is no prospect of her risks if released on a non-custodial order being managed and better assessed.
• [64] As counsel for the DPP pointed out in his written submissions there is no evidence that KMD's insight into her mental impairment has improved or that she has engaged to any degree with her treating team.[44]
• [65] The CEOs point to a number of matters of continuing concern when assessing likely risk:

52.1 There is a continued denial that Ms KMD has a mental illness. The themes of insufficient police investigation, untested prosecution brief, and general lack of evidence in support of the diagnosis are repeated in Ms KMDs written submissions dated 9 November 2020.

52.2 There is no acknowledgement of the potential risks to the safety of the community, as well as to Ms KMD herself, by virtue of her diagnosis. Ms KMD persistently and continually denies that these, as variously identified by 9 psychiatrists, are accurate or represent a true representation of her likely risk factors, which she submits are very low, but with only limited evidence to support this assertion.

52.3 Ms KMDs plan is without detail. She simply states that a release from a custodial environment will result in her compliant and supervisable behaviour in a community based setting. The plan does not address any of the critical risk factors, nor does it contemplate a testing out of both static and dynamic risk factors such that this Court may be satisfied on the available evidence that Ms KMD does not pose a serious risk to the safety of herself or the public.

52.4 To date, Ms KMD has participated only minimally in any risk assessment, and has not participated at all since late 2016. Accordingly, it is submitted that as the Court has no current assessment of the likelihood of her risk, apart from her own assurances, this constitutes an insufficient basis to consider varying the current form of supervision order.

52.5 It is the CEOs' position that Ms KMD's risk presentation remains largely as it was when the nominal sentence was imposed on 3 June 2015. Accordingly, the Court can be satisfied on the evidence available, that the safety of the supervised person or the public will be seriously at risk if the person is released on a NCSO. That is, the CEOs have discharged their onus in contemplation of section 43ZH (2) (a) Code.

• [67] I am satisfied that on the evidence available the safety of KMD or the public will be seriously at risk if she is released on a non-custodial supervision order.
• [68] I confirm the custodial supervision order.
• [69] I direct the appropriate person to provide a report under s 43ZK on or before close of business 29 July 2021.
• [70] The parties have liberty to apply.

THE APPROPRIATE PERSONS WRITTEN SUBMISSIONS IN REPLY

1. During the 2015 hearings[45], a divergence in opinion as to the degree of risk was established, between Drs Kini and Ventura on the one hand, and Dr Walton on the other. The contest in expert opinion related to the intensity, extent and chronicity or otherwise of Ms KMD's mental illness and, ultimately, the nature of risk.
2. In addition to views concerning the issue of risk expressed by Dr Kini and Dr Ventura in the reports dated 31 July 2014[46], 10 November 2014[47], 6 March 2015[48], 20 April 2015[49] and 29 May 2015[50], Dr Kini gave oral evidence in relation to risk at pages 7 to 11 and 20 to 23 and 26 of the transcript of 12 March 2015. Dr Ventura's evidence on this issue is at pages 52 to 53, 58, and 60 to 64 of the transcript.
3. Dr Walton's evidence in relation to risk is at pages 42 to 44 of the transcript of 12 March 2015.[51] Dr Walton provided a further report to the Court following this hearing dated 28 May 2015.[52]
4. Over the period 29 September to 9 October 2015 Ms KMD was subject to assessment by Associate Professor Robert Parker and other clinicians of TEMHS at Royal Darwin Hospital. Following that assessment, Associate Professor Parker reported to the Court on 30 October 2015[53], recommending that cognitive behaviour therapy (CBT) be trialled with Ms KMD. His report concluded; "Ideally, KMD would benefit from being placed in a less restrictive environment (such as the cottages in the Darwin Correctional Centre Precinct) whilst receiving the CBT. Such an environment should balance the therapeutic requirements of KMD, the need to assure the safety of the community and individuals as assessed during her therapeutic program of CBT and the availability of TEMHS Forensic Team clinicians to conduct the CBT".[54]
5. Associate Profession Parker also observed that if Ms KMD encountered difficulties in "working with the CBT" she "may benefit from a trial of adjunctive antipsychotic medication".[55]
6. Associate Professor Parker then provided further opinion to the Court by report dated 25 November 2015[56], primarily focused on issues of risk.
7. Following receipt of the section 43ZH report prepared by Dr Anthony Miach together with Mr Re Acacio dated 13 April 2016[57].
8. Dr Walton provided further reports to the Court dated 11 May 2016 and 30 August 2016[58]. He provided further oral evidence to the court at the periodic review hearing, which ultimately proceeded on 21 February 2017 where he opined there had been some limited gains in Ms KMD's understanding and insight into her own behaviour[59] (page 6) that a trial of medication would be a useful intervention[60] (page 7), that this had been canvassed with Ms KMD now for several years, however Ms KMD is very mistrustful of psychiatrists[61] (page 12) and indeed the last time he saw Ms KMD was in August 2016 (page 13)[62]. He concurred that Ms KMD does not accept that she has a delusional disorder.[63] (page 10).
9. Professor Parker provided a further report dated 6 January 2017[64]. Significantly he observed, at paragraph 5 on page 2 of that report 'outside of prison, with normal life stresses and despite that the supportive psychotherapy offered by Re Acacio has at time been of some positive effect, it is likely that KMD will once again experience elevated levels of brain dopamine and this uncontrolled rise in this brain dopamine would result in serious risk of behaviour dangerous to individual or the public, including the possibility of behaviour similar to her original offence'.
10. Professor Parker and Mr Acacio both gave evidence at the periodic review hearing starting on 21 February 2017. At page 33 of the transcript, Professor Parker gave evidence that Ms KMD's dynamic risk factor, without medication, is probably greater because of the cascading effect of her

1. refusing to accept her diagnosis; and 2. refusing to accept medication treatments; and

1. the subsequent surge in dopamine 'potentially could affect any individual who happened to be in the wrong place at the wrong that became the focus of her delusional ideation'.
2. Mr Acacio's evidence was to the effect that once he reached the conclusion that Ms KMD would never change her view that he son had been sexually abused[65] it was decided the cognitive behavioural therapy should cease, with Mr Acacio's role changed to provide Ms KMD with more supportive therapy and counselling (page 95) focussed on assisting with Ms KMD coping skills within the prison[66].
3. Dr Das' more recent evidence in relation to risk comprises the HCR-20 assessment, attached to his report dated 5 April 2017[67], together with his further periodic review reports dated 4 July 2018[68], 30 April 2019[69] and 29 July 2020.[70]
4. Dr Das gave evidence in this periodic review on 9 November 2020. His assessment of risk can be found at pages 11 - 16, 24, 48, 50-52 and 54 of the transcript. In summary Dr Das' position is that:

1. There can be no change in Ms KMD's current symptom profile without active medication treatment. Until this occurs it is unlikely there can be a change in an assessment of reduced risk. 2. The symptom profile still remains. There has been no evidence of any significant material change since about July 2020, so the information is not very dated.

1. Ms KMD continues to actively pose a risk of harm to others, serious harm.

1. Because of the current assessment of risk of harm as 'serious' Ms KMD still requires an appropriate level of security. For that reason the prison is and remains the most appropriate venue.

[1] "Attachment A" to the Written Submissions in Reply - The Appropriate Persons" dated 15 January 2021 and filed 19 January 2021 (CEOs' Submissions).

[4] Ex SO 45 at [5.10] and [5.13].

[5] I note however that in her recent written submission she now says that she is willing to have counselling, but from one of the psychologists on a list of Aboriginal psychologists.

[6] Ex SO 45 at [6.1]. See my detailed discussion about this in KMD (No 3) and Attachment A to these reasons.

[7] Attached to Dr Das' report of 5 April 2017 (Ex SO 37) - "HCR Risk Assessment".

[14] Court file documents #116-118.

[20] Letter to KMD dated 31 July 2020. See too transcript at pp 2.8, 46.8.

[24] Section 6 of the Juries Act 1962 (NT); read together with Part IIA of the Criminal Code.

[26] Ex SO 39 at [4] on p 4, and at [2] on p 7.

[27] See for example transcript, 20 August 2019 at p 12.

[28] See ss 43ZG, 43ZH, 43ZM and 43ZN.

[29] See ss 43ZG (6) and (7), 43ZH (2), 43ZL (3), 43ZM and 43ZN (1).

[30] The Queen v KMD [2015] NTSC 31 (KMD (No 1)) at [39].

[31] See the definition of "appropriate person", and ss 43ZA (3), 43ZJ (2), 43ZK (2) and 43ZN (1).

[32] See ss 43ZA (2), 43ZD (3C), 43ZE (3C), 43ZF and 43ZG (5C).

[33] KMD's November 2020 Submissions at [27] et ff.

[34] [2012] VSCA 198; (2012) 38 VR 618 (NOM).

[39] KMD's November 2020 Submissions at [39] and [45(b)]. Cf s 43ZN(1)(f).

[42] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, cited by Riley CJ in The Queen v KMD [2015] NTSC 31 at [40].

[44] "Director of Public Prosecutions Submissions on Review 8 February 2021" dated 22 January 2021 (DPP Submissions).

[45] These were ostensibly to determine a nominal period of sentence in accordance with section 43ZG of the Code, but also to determine the form of supervision order, His Honour Riley J having declared Ms KMD liable to supervision on 4 July 2014.

[51] Dr Walton's reports to the Court up until this are exhibited as SO 6 -11 inclusive.

[54] Exhibit SO 19 at paragraph 8 of page 6.

[55] Exhibit SO 19 at paragraph 5 of page 6.

[58] See Exhibits SO 31 and 32. In SO 32 at page 4 paragraph 4, Dr Walton describes Ms KMD current risk factors.

[59] Transcript 21 February 2017 page 6

[61] Transcript 21 February 2017 page 12.

[62] Transcript 21 February 2017 page 13.

[63] Transcript 21 February 2017 page 10

[65] Transcript 22 February 2017 at page 94.

[66] Transcript 22 February 2017 at page 95.