The Queen v KMD & Ors

There is no consequence to psychiatrists who make political and unethical reports for the courts that are harmful and malicious in their opining, when they have the knowledge, information and evidence available to them that is inconsistent with and contrary to what they are reporting to the courts. In short, they are knowingly lying.

• [97] There is no foundation for the submission that Dr Smith was a 'police psychologist', or that he had been provided by police with material from KMD's laptop. His report states he took an extremely detailed history from KMD and quoted her exact words. It also states KMD sometimes pointed to the page he was writing on and wanted to be sure he had recorded all of what she had to say. It is apparent Dr Smith had CC's statement, which described her conversation with KMD in which KMD mentioned that the Police Commissioner was a Freemason Illuminati, Freemasons are Satanists and paedophiles, and the Police Commissioner had sexually assaulted her son. Even if Dr Smith did raise Freemasons with KMD (which is not apparent on the face of the report and I do not accept), CC's statement is the logical source of his having done so, as KMD submitted, somewhat inconsistently with the submission that he got the information from what Police had found on her laptop.
• [98] In relation to Dr Miach's report of 11 March 2016 (Exhibit SO29), which made reference to KMD's account of the meeting with the man with the 'girlie tattoo', KMD submitted that she did not describe what Dr Miach reported and that he had twisted facts and included his own, with the intention of making KMD seem ridiculous and not believable.
• [99] In a similar vein, KMD submitted that the Court should place little weight on Dr Das's opinions as he was not objective or impartial in the formation of his opinions. The reasons given were threefold. First, because Dr Das is a 'servant of the CEOs' which, she said, meant that he and the other psychiatrists 'take direction from and are briefed by' the CEOs. Dr Das and some of the other psychiatrists who have written reports about KMD are or were employed by the Department of Health. I do not accept that that fact means they lack objectivity and impartiality. Generally speaking, they are or were Fellows of the Royal Australian and New Zealand College of Psychiatrists. Their engagement is as a professional physician and to perform their treating and reporting functions with their professional skills and expertise. While their performance of administrative functions may be directed by the constraints of their employment, I do not accept that, in the performance of their diagnosing, treating and reporting functions, they act at the direction of the CEOs. Two of the relevant psychiatrists, Dr Smith and Dr Walton, were Consultant Psychiatrists engaged and briefed by lawyers acting on KMD's behalf.
• [100] Secondly, KMD submitted that Dr Das did not follow professional guidelines requiring caution in drawing opinions about a patient in the absence of direct observations and interactions with the patient. She said Dr Das had not observed or interacted with her and yet was advocating for her 'indefinite detention and neuroleptic drug treatment'. I consider that, in expressing his opinions about KMD's diagnosis, required treatment (including medication) and risk, Dr Das has acted professionally and appropriately on the basis of his extensive qualifications and experience as a forensic psychiatrist. I do not accept that he is partial or biased in his views. His opinions are founded largely on the interactions of KMD with other psychiatrists, but they are also based on his own (albeit brief) interactions with KMD, and on information provided to him by other members of the FMHT and correctional staff and there is nothing inappropriate in that. Dr Das acknowledged that, in forming opinions about KMD's mental state and risk, it would be preferable to engage with her. However, that is not possible because KMD has elected not to have that engagement. Dr Das is left with the other sources of information available to him. That does not detract significantly from the weight to be given to his opinions.
• [101] Thirdly, KMD submitted that Dr Das has ignored the 'contextual evidence' which she says demonstrates that what are said to be her delusional beliefs are either not delusional (e.g. that her son was being sexually abused by his father - as evidenced by the SARC interview video footage) or are not and never were her beliefs (e.g. that police did not act on her son's disclosures of sexual abuse because there was a Masonic paedophile ring in Darwin that included police and judges and protected its own). Dr Das's opinion as to the impact of the disclosures of sexual abuse made by R in the SARC interview is set out in paragraph [39] above, to the effect that the truth of the core belief in the delusional system would not affect the diagnosis. The 'contextual evidence' about a belief as to a Masonic paedophile ring has been referred to in paragraphs [94] to [97] above, and is further addressed in paragraphs [109] to [114] below.

• [102] KMD argued that Part IIA of the Criminal Code requires assessments by psychiatrists and it is common knowledge that psychiatrists diagnose people with a mental illness and treat them with neuroleptic medication. KMD argued, by reference to various texts and articles, that: (a) the intended effect of neuroleptic drugs is to cause damage to the brain, including the frontal lobes responsible for the characteristics that make us human, equivalent to a lobotomy, which enables patients to be controlled; and (b) the known, serious and permanent side effects (including breast cancer, tardive dyskinesia and dementia) from such drugs are deliberately hidden by psychiatrists, researchers and drug manufacturers.
• [103] In cross-examination, Dr Das denied that persons in custody under Part IIA are necessarily required to take medication before they can be released, saying every case is different and the need for medication depends on the patient and their condition. Dr Das denied that the fundamental principle of psychiatric treatment is to treat with medications that disable normal brain function.
• [104] In cross-examination by KMD, Dr Das agreed that medications for delusional disorders operate upon the abnormal hyperactivity of the dopamine neurotransmitters in the brain by suppressing dopamine activity. Dr Das denied that, consequently, the medications cause brain damage. Dr Das denied that because the medications have the same effects on people regardless of a diagnosis of mental illness, namely, to inhibit passion and willpower, they will deteriorate KMD's mind. Dr Das disagreed that the effect of antipsychotic medications on the brain was the same as surgical brain mutilation or a lobotomy. Dr Das denied that the medications he considered appropriate for KMD could be described as chemical restraints and that the desired effect of them is to elicit in KMD such a state of docility that she would effectively be restrained. Dr Das explained that medication treatment in people with delusional disorder can help with addressing delusional thoughts and mood regulation, and reducing impulsivity and propensities to act aggressively. He also said there is evidence that it has positive effects on cognitive function, memory, focus and the ability to do day to day things.
• [105] In cross-examining Dr Das, KMD put to him that his intention is to drug her to the point where she cannot think properly and will be in a helpless state, under his complete control, and this learned helplessness and submissiveness will be amplified by brain damage, so that she becomes more dutiful to the psychiatrists and 'the demoralising principles of bio psychiatry'. He denied any such intention.
• [106] It is not necessary to determine whether medications prescribed to treat delusional disorder conditions are harmful, or whether KMD should be treated with such medications against her will. The relevant facts are that Dr Das considers medication to be an appropriate and necessary part of KMD's treatment, and most likely a pre-requisite for a sufficient reduction in her risk profile to permit her release, and KMD refuses such treatment and is highly unlikely to agree to it in the future.

Were the early psychiatric opinions drawn on flawed factual assumptions?

• [107] As set out in paragraphs [31] and [34] to [36] above, Dr Das and the other psychiatrists have referred to KMD having a delusional belief system in which the core belief is that her son was sexually abused by his father.
• [108] As the extracts from Dr Smith's report set out in paragraphs [93] to [95] above show, his diagnosis that KMD was suffering a delusional disorder were based on his understanding of a delusional system that extended well beyond that core belief.
• [109] KMD submitted that the only belief she has ever had is that she believed her son was being abused, and she has never told any psychiatrist that she held beliefs about judges, Freemasons, the Commissioner of Police and police being associated with a paedophile ring. KMD submitted that Drs Smith, Ellis and Ventura obtained the information about paedophile rings from information given by CC to police about a conversation KMD had had with CC. KMD said CC had misinterpreted the conversation which occurred just after the SARC interview where KMD told CC she had done an internet search about paedophile rings in Darwin and those three things had come up. KMD said she had done that search after a counsellor at the SARC told her that Police were investigating paedophile rings in Darwin and Alice Springs. She also said that CC had been having an affair with a police detective who was involved in her 'matters' (who was also a friend of RL) and CC sent an email to the investigating officer saying KMD was accusing these authorities of being paedophiles and from then on it was KMD who was being investigated and acted against by the police.
• [110] The submission that she never said those things to psychiatrists and never held those beliefs is inconsistent with the careful way Dr Smith's report described what KMD said to him during their interviews.
• [111] It is also inconsistent with the report of Dr Andrew Ellis dated 30 April 2014 (Exhibit SO39). Dr Ellis was a Forensic Psychiatrist from Sydney engaged at the request of Riley CJ to prepare a report about KMD. He interviewed KMD via audio-visual link for 2 hours and 20 minutes. His report states that KMD described to him a long-standing belief that her son was sexually abused by his father, and that his father facilitated sexual abuse by a paedophile ring that involved photographing of anal sexual intercourse. She described a long-standing belief that RL had influential connections with the police and had plotted to kill her, and that he had a cognitive impairment and drug addiction that caused violent intentions. KMD told Dr Ellis that she looked up things on the internet about paedophiles, the Freemasons and the Illuminati but did not come to any specific conclusions about that. She believed that comments she had made to previous psychiatrists had overplayed bizarre aspects of her story, such as a belief in Freemasons and the Illuminati being involved in a cover up of police paedophiles. KMD told Dr Ellis about the death threat by the man with the tattoo who was wearing a Freemason's sigil on his ring, and that she believed the man had tracked her down in relation to the allegations she had made about RL abusing her son. She told Dr Ellis that it was at that point she began carrying the gun with her at all times, to protect herself from this threat. She also said RL had made plans to have her killed and that she could not go to police about it because of RL's influential connections with them. KMD also told Dr Ellis that she only fired four shots from the gun during the incident so one bullet was missing from the evidence, which may indicate a conspiracy. Dr Ellis reported that, when pressed for details of how she came to certainty regarding her beliefs, KMD would retract or minimalise her original statements. He said that KMD clearly expressed a belief that her son had been sexually abused and was still in danger, and that her own life was threatened by a conspiracy. He said the belief had arisen on the basis of flimsy evidence and appears to have been elaborated on and extended with further persecutory ideation. He said the beliefs were preoccupying and drive behaviour and on this basis they were considered delusions.
• [112] KMD's submission is also inconsistent with the report of Dr Antonella Ventura dated 31 July 2014 (Exhibit SO5). Dr Ventura was a Consultant Forensic Psychiatrist temporarily appointed to the FMHT who interviewed KMD via audio-visual link for 1 hour and 45 minutes and prepared a report for the Court. Her report set out what KMD told her, including: (a) that she knew her son was sexually abused by 'Dave' because two other children with Dave were abused; (b) one of the other boys with Dave was also involved in abusing her son; (c) at four years old, KMD's son said these exact words to her: that he 'was forced into sexual acts against his will'; (d) KMD believed the abuse of her son was organised sexual abuse; (e) KMD was convinced there were a number of people involved in the sexual abuse of her son and that it was being filmed or photographed; (f) KMD's son said that one of the abusers looked like a policeman and after she investigated the matter on the internet, KMD believed this was related to police protection of a paedophile ring in Western Australia run by a Masonic sect; (g) when out for dinner with a friend, an unknown man approached KMD and showed her a tattoo which pictured a female figure with no dates on it, which meant she was this girl and she was going to be killed; (h) the man had a ring with a Freemasonry symbol on it; (i) she believed this event was linked to the paedophile ring involved with the sexual abuse of her son; and (j) during the incident the subject of the charges, KMD saw confirmation that RL was guilty of sexually abusing her son from the fact that he ran away when she approached him with the gun. Dr Ventura's report stated that KMD:

continues to express paranoid delusions specifically about the ongoing sexual abuse of her son..., or her ex-partner [RL] demonstrating his guilt by running away from a firing gun. She admitted to beliefs consistent with delusions about a paedophile ring related to the Freemasons. She expressed persecutory delusions about her life being in danger and being threatened by the Freemasons.

Her judgement continued to be impaired as she believed that she acted in a rational way by pursuing [RL] with a weapon.

• [113] Specifically as to the belief about involvement of the Freemasons, Dr Ventura's report stated she obtained that information directly from her interview with KMD.
• [114] KMD also submitted that, by reporting these matters as things KMD told them about her beliefs, the psychiatrists have behaved immorally and unethically and have lied to the Court. I do not accept that. There is no foundation for it and the submission that three professionals, including one engaged by KMD's lawyers and the other engaged on behalf of the Court, have fabricated evidence to support their professional opinions is unsustainable.
• [115] KMD tendered (Ex SO50) the transcript of the hearing of the Mental Health Review Tribunal on 4 July 2016.[21] KMD tendered that transcript to show that there was other 'contextual evidence' 'ignored' by the psychiatrists which showed she had never held the bizarre beliefs attributed to her. In that transcript, KMD's then counsel is recorded as describing a history (based on her reading of the prosecution file) in which, after KMD raised R's disclosures of sexual abuse by RL with police, the investigating police officer wrote a report saying he did not consider a prosecution was possible and he believed KMD had, to some degree, coached her son to make the disclosures. Counsel said the SARC staff told police they 'believed the child'. She said the investigating police officer was disciplined for writing that report, which was then put before the Family Court by RL and KMD's access to her son was removed. KMD's counsel put to Dr Miach that the investigating police officer had been disciplined in relation to 'administrative matters such as discontinuing files of this nature'. Dr Miach said he was not aware. KMD's counsel asked Dr Miach if he was aware that KMD was seen by a psychologist who did a report to the Family Court and it was on the basis of that report that custody of R was given to KMD's former partner. KMD's counsel asked Dr Miach if he was aware that that psychologist no longer works with the Family Court 'again probably for disciplinary reasons'. Dr Miach said he was not aware. Asked if he was aware that the SARC staff told police that they believed R, Dr Miach said he was not, but said the psychiatrist's report had said the son had been coached into making those allegations.
• [116] That description of history and those questions by KMD's counsel, even if they had been put to a witness in this Court rather than some other legal forum, are not evidence because they were not adopted or accepted by the witness as true. They comprise no more than assertions that the investigating police officer did not properly investigate the allegations, and that there may be some issue about the reliability of a psychologist's report on which the Family Court acted. Even if these things were established in this Court by evidence, the consequence goes no further than that the allegation of sexual abuse of R by his father may be true but remains unsubstantiated. I do not consider that to have any significant bearing on the psychiatric opinions that KMD has a delusional disorder founded on a delusional system with the sexual abuse of R by his father at its core. It is clear from the reports of Drs Smith, Ellis and Ventura set out in paragraphs [93] to [95] and [110] to [113] above that the delusional system extended well beyond that core belief.
• [117] In this hearing, KMD's written submissions included an assertion that police had removed material from the transcript of her interview with Snr Detective Gary Coles in 2013 which was produced to the Court under a subpoena in 2014. This assertion was founded on the assertion that RL had made a statement, contained in the brief of evidence, that the police told him the transcript was 95 pages long, when the transcript produced to the Court was only 90 pages long. One might consider the possibilities that what police reported to RL misstated the number of pages, that RL inadvertently misreported what Police told him, or that printing the transcript in different formats might change the number of pages. Instead, KMD submitted that the only logical conclusion was that police removed from the transcript things she had said in order to, corruptly, justify closing the investigation into sexual abuse of her son.
• [118] KMD argued that all psychiatrists and correctional staff with whom she has had interactions which have been reported in the evidence before the Court have proceeded from the discriminatory basis, laid down upon the jury's finding of not guilty by reason of mental impairment, that she suffers from a mental impairment, which has both influenced those interactions (contrary to her interests) and sought to confirm the basis from which they have proceeded. KMD referred to this as a 'strawman approach'. An example KMD gave of this strawman approach was a description of her in a Department of Health document as 'a 43 year Aboriginal old woman'. She said this was not a typographical error in writing 'a 43 year old Aboriginal woman', but a description deliberately made to permit her to be accommodated at the Cottages leased by Aged Care and Disability Services.
• [119] The reliance placed by more recent psychiatric reports upon: (a) what the earlier psychiatric reports disclose about KMD's statements and beliefs; and (b) KMD's reported interactions with correctional staff, is a consequence of the absence of recent disclosures by KMD to members of the FMHT about her beliefs and her mental state. I do not see that reliance on the interactions between KMD and correctional staff to be in any way deliberately for the purpose of confirming that KMD suffers from a mental impairment.

Do the later psychiatric reports repeat those flawed factual assumptions?

• [120] I have rejected the submission that the early psychiatric reports proceeded from the flawed factual assumption that KMD held the beliefs reported in them. It follows that I do not accept that the later psychiatric reports repeat flawed factual assumptions.

• [121] KMD argued that she has not been the subject of a full longitudinal assessment, which she has been told takes between six to eight weeks. KMD has not been the subject of a single long-running psychological assessment. She was, however, the subject of assessments by various psychiatrists with whom she engaged over a number of years. I do not think this bears significantly on the reliability of the opinions of the psychiatrists as to her diagnosis.

Is Part IIA repugnant to the Constitution or otherwise invalid?

• [122] One of the things KMD ultimately sought on this review hearing was a new trial, an ordinary trial outside of Part IIA of the Criminal Code.
• [123] KMD submitted that Part IIA of the Criminal Code is contrary to the rule of law and incompatible with the Constitution because it permits indefinite detention. That a statute permits indefinite detention does not make it incompatible with the Constitution and invalid.[22]
• [124] KMD submitted that Part IIA of the Criminal Code lays down an 'axiomatic system of logic', a system in which certain unproved formulas (axioms) are taken as starting points and further formulas (theorems) are proved on the strength of those axioms, even though the axioms may not be true. KMD also submitted, by defining many different types of logical fallacies and giving examples of them by reference to propositions or premises, that numerous logically fallacious arguments have been put forward to sustain the opinions about her having a mental illness and her risk. Generally speaking, this was a means by which KMD sought to press her submissions, as already referred to and addressed elsewhere in these reasons. In particular, KMD argued that psychiatric opinion is based on empirical logic, represents a significant contrast to rationalism and purports to know better than the individual what is best for them. I did not find these arguments persuasive. Part IIA of the Criminal Code obliges the Court to order and take into account the results of an examination by a psychiatrist or other appropriate expert[23] (ss 43O(d), 43P(3)(b), (c), 43Y(1)(c), (d), 43ZN(2)(a)) and to receive reports about the supervised person's mental impairment, condition or disability (s 43J(1), (2), 43ZK(2)(b)). KMD argued that the 'axiomatic system of logic' makes Part IIA of the Criminal Code, 'unsafe law', which renders it invalid. Various United States authorities in which statutes were declared repugnant to the United States Constitution and invalid by various courts including the United States Supreme Court were referred to.[24] Reliance was also placed on various English cases in which statutes were said to be void for being repugnant to the common law.[25]
• [125] No Australian authority was cited for the propositions that the legislature does not have capacity to make a statute which may operate by axiomatic logic, or a statute which may impair common law rights such as the right to liberty. In any event, I do not accept that Part IIA operates with flawed logic.
• [126] KMD also submitted, in reliance on the High Court's decision in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, that Part IIA of the Criminal Code is not 'reasonably and appropriately adapted' to its end of impairment of liberty and freedom of movement. That case involved the implied constitutional freedom of expression and the legislative power of the Commonwealth Parliament which is limited to the subject matters set out in s 51 of the Constitution. The case has no relevant application to laws about trials of accused persons who may have a mental impairment made by a plenary legislature such as the Legislative Assembly of the Northern Territory.[26]
• [127] I do not accept KMD's arguments that Part IIA of the Criminal Code is or should be declared invalid.

• [128] KMD argued that, because the charges against her were dealt with at a special hearing under Div 4 of Part IIA of the Criminal Code, she was denied the opportunity of a fair trial at which the facts and truth of her case could be tested.
• [129] The purpose of a special hearing is to determine, on the evidence, whether an accused person: (a) is not guilty of the offence with which they are charged; (b) is not guilty of the offence because of mental impairment; or (c) committed the offence or an alternative offence (s 43V). A special hearing is conducted as nearly as possible as if it were a criminal trial, at which the accused is taken to plead not guilty, the accused may raise any defence they could raise in a criminal trial, the rules of evidence apply, and the accused person may give evidence (s 43W). If the jury finds the accused not guilty, they must be discharged as occurs in a criminal trial (s 43X). It cannot be accepted, therefore, that simply because her matter proceeded by way of a special hearing under Part IIA, KMD was denied a fair trial, and the opportunity to be found not guilty of the charges in the ordinary way. She submitted that she was denied the opportunity to give evidence at the special hearing, but provided no information about how that denial occurred or any evidence of it.
• [130] KMD submitted that, when Part IIA of the Criminal Code is wrongly invoked (as she said occurred in her case), it creates a 'vicious circle fallacy argument: an ad verecundiam false dilemma' which the supervised person can never meet, resulting in their ongoing indefinite detention. KMD defined a vicious circle argument as reasoning in which a premise is used to prove another premise, which is used to prove another premise, which is used to prove another premise, which continues until the second last premise is used to prove the original premise. KMD defined an ad verecundiam fallacy as an argument that appeals to 'awe' which seeks to secure acceptance of the conclusion on the grounds of its endorsement by persons whose views are held in general respect. KMD defined a 'false dilemma' essentially as a simple choice, such as between black or white. KMD gave various examples of what she identified as this reasoning which ultimately led to Riley CJ's decision to place her under a custodial supervision order under Part IIA. KMD referred to various premises in this reasoning, including her lawyers' decision to pursue a mental impairment defence contrary to her instructions, Dr Smith's opinion that she was delusional which then incited 'groupthink' on the part of the other psychiatrists, the reliance by the psychiatrists on the unsubstantiation of her belief about the sexual abuse of her son (which was a consequence of the failure of police to properly investigate his disclosures) and CC's 'malicious statement'. Again, this argument was not persuasive, particularly given what I have concluded about the early psychiatrists' reports above.
• [131] KMD argued that she was not unfit to stand trial within the meaning of s 43J of the Criminal Code. KMD submitted that Part IIA was wrongly invoked in her case and this Court should judicially review the initial decision to declare her unfit to stand trial because that decision was flawed on various judicial review grounds, principally related to Wednesbury unreasonableness.[27] She submitted orally that her lawyers coerced her into a mental impairment defence, which she was not told about until the cusp of the special hearing which commenced on 30 June 2014, and which she said was contrary to the instructions she gave her lawyers to prepare for an ordinary trial. She also said that, despite having a right to give evidence if she wished (s 43W(2)(e)), she was denied that opportunity. Notwithstanding KMD's submission, there is no evidence before this Court to establish that KMD's lawyers acted improperly in 2013 and 2014 in providing to the Court the reports of Dr Walton and Dr Smith or in submitting to the jury at the special hearing that a verdict of not guilty by reason of mental impairment was appropriate on the evidence. KMD's written submissions refer to a file note made by her then solicitor about a conference on 4 March 2014 with KMD and counsel. That document was not put into evidence in this proceeding. KMD also provided a memorandum, drafted by a person not identified, on a date not identified, apparently briefing a person not identified, to advise 'on the merit' of appealing the Supreme Court's decision that KMD was 'unfit to plead'. The memorandum refers to various documents said to support KMD's claims that her lawyers acted contrary to her instructions. The most prominent of those is a draft affidavit by KMD. None of the documents are in evidence in this Court. While the extracts from the file note and the memorandum suggest that KMD did not want to pursue a defence of mental impairment, and instructed her lawyers not to, they do not indicate evidence of any impropriety on the part of KMD's then legal representatives, particularly noting that such evidence would have to be considered in light of s 43ZO of the Criminal Code, which gives legal counsel an independent discretion to act as they reasonably believe to be in the best interests of the accused if the accused is unable to instruct them on questions relevant to an investigation or proceedings under Part IIA. A question relevant would have been whether KMD was or might be found to be unfit to stand trial or not guilty by reason of mental impairment. It appears that KMD's lawyers believed they were acting in accordance with s 43ZO.
• [132] There is an express right of appeal from a finding of not guilty by reason of mental impairment in the Criminal Code, but it only applies if 'the defence of mental impairment was not raised by' the accused person (s 406(2)). There is no express right of appeal if the defence of mental impairment was raised by the accused person. That appears to be a deliberate decision on the part of the legislature. In addition to s 406(2), there is an express right of appeal from a finding that an accused person committed the offence charged or an alternative offence at a special hearing (s 43X(3)(c)), the general right of an accused person to appeal is limited to a person found guilty and only extends to right to appeal against the finding of guilt, any special finding or the sentenced passed on the finding of guilt (s 410), and the general right of the Crown to appeal does not include an appeal from a finding of not guilty by reason of mental impairment (s 414(1)). The Court of Criminal Appeal has power on an appeal within those provisions to quash a finding of guilt and substitute a finding of not guilty by reason of mental impairment (s 412A). There is also an express right to appeal against a supervision order in the same manner as an appeal against a sentence, but the Court's only powers are to confirm the supervision order or quash it and make another supervision order in substitution for it (ss 43AB, 406(3)). The availability of a right of appeal from a decision is commonly a basis on which to refuse relief in a judicial review proceeding on discretionary grounds. In any event, this is not a judicial review proceeding.
• [133] I also note that a declaration that an accused person is unfit to stand trial is not a necessary precursor to a finding of not guilty by reason of mental impairment (s 43C). The defence of mental impairment can be raised by either party or the Court on its own initiative (s 43F). If it is so raised during an ordinary trial, the jury must consider it (s 43G). Consequently, even if KMD had entered pleas of not guilty and the matter had proceeded to trial in the ordinary way, the issue of mental impairment would potentially have arisen, and the matter would potentially have resolved as it did with the same outcome.
• [134] In R v KMD (No 4), Hiley J held (at [42]) that s 6 of the Juries Act 1962 (NT), read with Part IIA of the Criminal Code, precluded the Court on a periodic review from substituting its views with the functions and duties of the jury at a special hearing.[28] I agree with that view.
• [135] This proceeding comprises a periodic review of the supervision order to which KMD is subject and the Court's powers are confined to those set out in paragraph [20] above.
• [136] This makes untenable in this proceeding KMD's arguments about flaws in the determination that she was unfit to stand trial and the 2014 special hearing and the jury's finding that she was not guilty by reason of mental impairment.

• [137] KMD submitted that, by the jury's finding of not guilty by reason of mental impairment and being subject to the custodial supervision order, she has suffered numerous forms of harm in addition to the deprivation of her liberty, including harm to her reputation, disruption of her relationships, discrimination and financial loss, including the loss of her property.
• [138] Part IIA does not require the Court to take into account harm suffered by a supervised person as a consequence of being a supervised person. It is difficult to see how such harm could be a relevant factor when such harms are the obvious potential consequences, for all people subject to Part IIA, of a finding of not guilty by reason of impairment and being subject to a supervision order. Even if such harm was a relevant consideration on a periodic review, I do not see how past harm (as distinct from ongoing or future harm) can be relevant to the exercise of the Court's powers in s 43ZH.

• [139] On the basis of all of the evidence before me and referred to above, I find that:

(a) KMD has a mental condition, namely, a delusional disorder, whereby she holds a system of delusional beliefs on which she does and may act.

(b) There is no risk that, if KMD were released from custody, she would endanger herself because of her mental condition, save for the risk that she might suffer harm at the hands of others if the risk referred to in paragraph (c) below were to eventuate. I find that this risk is dependent on, but lower than, the risk referred to in (c) below.

(c) There is a risk that, if KMD were released from custody, she would endanger other persons because of her mental condition. That risk exists because:

(i) KMD's delusional disorder involves well-entrenched delusional beliefs about wrongs done to her and injustices she has suffered.

(ii) On 7 May 2013, KMD acted on her delusional belief system, with serious aggression and violence towards a number of other people, causing some physical harm. Her actions were dangerous to those people and to others in the community.

(iii) KMD denies that any of her beliefs are delusional and that she has a mental condition. She lacks insight into the degree of aggression, violence and danger to others of her conduct on 7 May 2013.

(iv) KMD refuses treatment of her condition via medication. She also refuses to be seen, examined or engaged with by the FMHT.

• [140] As regards the degree of risk, there are two components: one is the magnitude of the harm to other persons if the risk were to eventuate; the other is the degree of likelihood of the risk eventuating.[29] The magnitude of the harm is substantial because of the potential for acts of serious aggression and violence of a high order. However, the likelihood that KMD would act on her delusional beliefs in this way is, on the expert evidence before this Court, low. She has no history of violence prior to 7 May 2013 or since, despite being detained in a prison where the restrictions on personal liberty and freedoms is stressful and frustrating at times, and acts of violence amongst prisoners is not uncommon. She does not suffer from any cognitive deficits or an intellectual disability affecting her abilities to reason, problem solve, plan or learn from experience.
• [141] As set out in paragraphs [43] to [44] above, the expert psychiatric assessment of risk is essentially founded on what KMD did over nine years ago, her lack of insight into her condition and consequent refusal of treatment, and the inability to update the 2017 risk assessment because of KMD's refusal to expose her thoughts and beliefs to the FMHT. That refusal is founded upon the valid concern that what she might say might be used against her to support a decision to continue her detention. Little more can be gleaned from what KMD might say about her thoughts and beliefs than the nature of them (how bizarre or otherwise they are) and the strength with which she holds them. She is extremely unlikely to say she would act aggressively or violently on them in the future. She might indicate that her past actions were justified, because of her beliefs. She has already said as much in this Court. It is difficult therefore to see how that kind of engagement, in her present custodial setting, would assist in assessing the likelihood that she would, in the future, act aggressively or violently in response to her delusional belief system.
• [142] The evidential weight of the current assessment of the risk that KMD would act on her delusional belief system in a seriously aggressive or violent way in the community in the future is therefore concerning. Section 43ZH(2) requires the Court to vary the supervision order to a non-custodial supervision order unless satisfied that the safety of KMD or the public will be seriously at risk if she is released on a non-custodial supervision order. To continue the custodial supervision order, the risk must be serious and it is not sufficient to simply find some risk; the inquiry is focussed on whether there is an actual serious risk.[30]
• [143] That is particularly so when the Court must take into account the need to protect people from danger, but must also apply the principle that restrictions on a supervised person's freedom and personal autonomy must be kept to the minimum consistent with protecting the safety of the community. Given the serious intrusions into the liberty of the supervised person of a custodial supervision order, the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 applies and the requisite degree of proof (the balance of probabilities) is enhanced so that matters to be proven should be firmly established.[31]
• [144] On the basis of the evidence presently before me, I consider the degree of likelihood that KMD would act on her delusional belief system in a violent way in the community to be low, but real rather than fanciful. In the circumstances, whether the safety of KMD or the public will be seriously at risk if she is released on a non-custodial supervision order 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.

• [145] Although not the subject of evidence, it is irrefutable that there is treatment available to KMD in the community in the form of medication and psychiatric or psychological engagement. It is sufficiently clear that KMD would not take medication or avail herself of psychiatric engagement in the community. It is possible that she might avail herself of psychological engagement in the community.[32]
• [146] It is not sufficiently clear to me why the only way to adequately address the risk is for KMD to be detained in a physically secure environment. I cannot presently see why the risk could not be appropriately addressed by ensuring KMD has supports available to her, including accommodation, conditions as to her movements, supervision by Community Corrections, and a process for monitoring and regularly assessing KMD's mental wellbeing and state of mind (including her levels of stress, anxiety, fixation, irritability, hostility and general coping capacities) to ensure she is provided support and assistance directed to preventing any acts of serious aggression or violence in pursuit of her delusional beliefs.
• [147] I find unacceptable the proposition that KMD cannot be released from custody until her risk profile changes, which cannot occur until she engages with the FMHT by exposing to them her belief system and thinking, and she accepts medication or at least gives consideration to taking it. If, for reasons including her delusional belief system at the heart of her mental condition[33], she refuses to so engage for the remainder of her life, she would be held in custody until she dies. I say that because the major review of KMD's supervision orders provided for by s 43ZG of the Criminal Code, which is not due to occur until three months prior to 7 May 2029, turns on essentially the same criteria as in s 43ZN(2), namely, whether the safety of the supervised person or the public will (or is likely to) be seriously at risk if the supervised person is released (s 43ZG(5)).
• [148] I cannot countenance such a course, at least without giving careful consideration to alternative options.
• [149] Management of risk of people in custody under Part IIA who are to be released into the community is generally done by a 'step-down' approach 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. Commonly, this step-down approach sees the supervised person spend time in places outside of custody, initially for short periods, with those periods gradually extending until they are residing in a non-custodial setting. This is generally done in accordance with a documented transition plan developed by correctional staff in conjunction with the supervised person and members of their support team.
• [150] KMD's custodial supervision order was varied in December 2015 in pursuit of such a 'step-down' approach, in which she was given day release from the prison to attend and stay at the 'Cottages' in the prison grounds. KMD attended the Cottages for several months, but decided not to continue,[34] as the Cottages are a forensic disability unit housing men.[35] I note that during that time, she did not make any attempts to abscond or offend.
• [151] I cannot presently see why a transition plan could not be prepared under which KMD could gradually transition to life in the community. Ideally, KMD would transition, under such a plan, to accommodation of her choosing as part of the Mission Australia program(s) referred to above, with all of the supports they offer in place.
• [152] The CEOs have submitted that KMD has not put forward a detailed plan for her release, or any form of transition plan. Given that KMD is in custody, not legally represented and suffers from a mental condition which precludes her interactions with the FMHT, that is hardly surprising. In accordance with these reasons, I cannot presently see why the CEOs and relevant staff (both within and outside of the FMHT) cannot work with KMD and others who are supporting or will support her (such as Mission Australia, NAAJA, the YWCA or YISSA) to develop, formulate, document and implement a plan.
• [153] It can be seen from the above that I am giving consideration to making an order releasing KMD from custody. The Court must not make such an order unless, in addition to the reports under s 43ZK referred to above, the Court has obtained and considered two reports, each being prepared by a person who is a psychiatrist or other expert (s 43ZN(2)(a)(i)). The Court must also be satisfied that the victims of the offending, the next of kin of the supervised person and (relevantly here) the Aboriginal community were given notice of the proceedings (s 43ZN(2)(b)). The Court could give leave to such persons to appear in the proceedings if they have a proper interest in the matter (s 43ZI(5)). Reports from victims or their next of kin may be received (s 43ZL).
• [154] As to the two reports in s 43ZN(2)(a)(i), s 43ZN does not specify what matters are to be addressed in the reports. In the present context, those reports should address the specific means by which KMD and the risk that she might act on her delusional belief system in a seriously aggressive or violent way in the community might be managed on a non-custodial supervision order, and how she could transition from custody to living in the community. I also consider it appropriate that neither expert should have authored reports in this matter to date. This will provide the Court with a fresh perspective, which will be informed by these reasons and other materials on the Court's files. Given the plethora of psychiatric evidence before the Court, my preliminary view is that it is appropriate that one of the experts be a psychologist and the other be an occupational therapist or social worker or other expert experienced in managing and supporting people with mental health conditions in the community. I will hear the parties further about that.
• [155] I will also hear the parties as to the mechanisms by which those reports are obtained and the appropriate orders to facilitate the further determination of this periodic review.

• [156] In light of the above conclusions, this periodic review is not complete within s 43ZH of the Criminal Code. I will make orders for the pursuit of its completion after hearing from the parties.

[1] The Queen v KMD (No 4) [2021] NTSC 27 ('R v KMD (No 4)').

[2] See The Queen v KMD (No 3) [2017] NTSC 95 ('R v KMD (No 3)'); The Queen v KMD (No 2) [2017] NTSC 18.

[3] The Queen v KMD [2015] NTSC 31 ('R v KMD').

[6] In this matter, the appropriate persons are the CEO of the Department of Health and the CEO of the Department of Correctional Services (s 43A, Criminal Code). I will refer to them in these reasons as 'the CEOs'.

[7] R v KMD (No 4) at [4]-[13], [15]-[16].

[8] See paragraphs [84] and [110] below.

[10] Citing NOM v Director of Public Prosecutions (Vic) (2014) 36 VR 618 at [57]-[58]; Nigro v Secretary, Department of Justice [2013] VSCA 213; (2013) 41 VR 359 at [113]; NJE v Secretary, Department of Justice [2008] VSCA 265; (2008) 21 VR 526 at [37]. I note that the latter two cases involved serious sex offender legislation, where the provision provided that the Court could make a supervision order if satisfied that the offender posed 'an unacceptable risk' of committing a further sexual offence. I note that the former was comprehensively addressed by Hiley J in KMD (No 4) at [53]-[57] and contrasted that case with KMD's case at [58]-[60].

[11] R v KMD at [39] per Riley CJ.

[12] See the cases cited in footnote 10.

[13] R v KMD at [39] per Riley CJ.

[14] Dr Parker said he believed KMD had schizophrenia within the criteria in the Diagnostic and Statistical Manual ('DSM') IV, whereas on the criteria in DSM-5 her diagnosis was more consistent with a 'delusional disorder'.

[15] See paragraph [115] below.

[16] Dr Walton was a consultant psychiatrist engaged by lawyers acting on KMD's behalf to assess whether she may be unfit to stand trial or able to claim the defence of mental impairment. He examined KMD on 11 July 2013 and subsequently and produced nine reports provided to the Court (Exhibits SO6, SO7, SO8, SO9, SO10, SO11, SO14, SO31, SO32).

[17] See paragraph [110] below.

[18] See also R v KMD (No 4) at [3] and Attachment A.

[19] On the basis of the exhibits and Dr Smith's report received by the Court, it appears that there are only eight psychiatrists who have provided reports to the Court. The other expert who has provided or contributed to reports is Mr Re Acacio, a psychologist in the FMHT. He treated KMD with cognitive behavioural therapy in 2016-2017.

[20] See a note typed by KMD on the Mental Health Review Tribunal transcript (Exhibit SO50).

[21] That hearing was conducted to determine whether KMD should be involuntarily detained and treated with medication in the mental health facility at the Royal Darwin Hospital. The application was brought by a Consultant Psychiatrist, Dr Tony Miach, from the FMHT on the basis of concerns that KMD's mental illness had deteriorated after he took the view that she suffered an olfactory hallucination, had complained about being poisoned, had refused to engage with the FMHT and had been uncharacteristically belligerent and combative in the period leading up to the application. KMD had complained that she could smell gas in her cell and that she was being gassed. KMD's position was that she was not the only prisoner to complain about smelling gas. KMD had also complained that she was being poisoned by the prison food. KMD's position was that prison food was nutritionally poor and she had simply expressed, like many prisoners did, that the food was 'poison'. KMD had explained her irritable behaviour was a consequence of new stressors in her life (her partner and child considering moving interstate, and the trialling of her transitioning to the Cottages outside of the Darwin Correctional Centre). The Tribunal held that the criteria for involuntary treatment in the Mental Health and Related Services Act 1998 was not satisfied. The Tribunal referred to evidence before it that other prisoners had also complained about smelling gas in the area of KMD's cell and was not satisfied that KMD had suffered an olfactory hallucination. The Tribunal also accepted KMD's explanations that she considered and commonly referred to the prison diet as poison (i.e. of poor nutritional value) and her mood decline was a consequence of her growing frustration at her predicament (being in prison) and the arrangements relating to her day release to the Cottages (referred to below). The Tribunal's reasons are Exhibit SO34.

[22] See McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575; Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166.

[23] The term 'expert' is defined to mean a person who holds a qualification or has experience or expertise that is relevant to mental impairment, condition or disability of an accused person or a supervised person (s 43A).

[24] For example, Ham v McClaws 1 SCL (1 Bay) 93 (1789); Bowman v Middleton 1 SCL (1 Bay) 252 (1792); Marbury v Madison [1803] USSC 16; 5 US 137 (1803).

[25] For example, Dr Bonham's Case [1572] EngR 107; (1610) 8 Co Rep 113b; Wood v Mayor and Commonalty of London [1738] EngR 108; (1701) 90 ER 1118; Day v Savadge (1614) Hob 85.

[26] As to the unqualified legislative power of the Legislative Assembly of the Northern Territory, see North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [170]- [171] per Keane J and the authorities there referred to.

[27] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[28] Section 6 of the Juries Act provides that where, under a law in force in the Northern Territory, an offence prosecuted in the Court is required to be tried with a jury, the jury shall consist of 12 jurors chosen and returned in accordance with the Juries Act.

[29] See paragraph [50] above.

[30] See R v RK [2019] NTSC 67 at [7] per Blokland J and the authorities there cited.

[32] KMD engaged in cognitive behavioural therapy with a psychologist, Mr Re Acacio, in the past, and more recently indicated a desire to re-engage with him, and submitted that a psychologist rather than a psychiatrist should have assessed her initially because psychiatrists are intent upon medicating people.

[33] In their written submissions, the CEOs put that KMD's refusal to accept medical advice to trial medication can be seen as a product of her mental condition.

[35] See Exhibits SO30, SO31, SO32 and SO33.