Citation: R v Crispe (No 4) [2014] NSWDC 211
Court: District Court of New South Wales
Date: 9 October 2014
Judge: Cogswell SC DCJ
Background
The accused had been charged with a serious offence involving the stabbing of her estranged husband. On 29 July 2014, the District Court returned a special verdict of not guilty by reason of mental illness, and the accused was conditionally released into the community pending a final determination of orders under s 39 of the Mental Health (Forensic Provisions) Act 1990.
The accused had a history of mental health issues, including a diagnosis of major depressive disorder, and had previously declined to take prescribed antidepressant medication. Since the earlier verdict, she had been living with her mother, attending a Buddhist temple daily, and engaging with a community mental health team.
The central question at this hearing was what final orders the court should make, including whether conditions of release should require the accused to comply with psychiatric medication prescribed by a treating psychiatrist.
Legal Issues
- Whether the court was satisfied, on the balance of probabilities, that neither the accused's safety nor the safety of any member of the public would be seriously endangered by her release, as required by s 39(2) of the Mental Health (Forensic Provisions) Act 1990
- Whether a condition requiring compliance with prescribed psychiatric medication should be included in the release order, given the accused's objection to taking medication
- Whether additional conditions relating to an apprehended domestic violence order and contact with the estranged husband and children were appropriate
Decision
A consultant forensic psychiatrist, Dr Richard Furst, assessed the accused in September 2014 and concluded that neither she nor any member of the community would be seriously endangered by her conditional release. He noted that her condition was largely in remission, attributed in part to her daily engagement at a Buddhist temple and supportive therapy, and assessed her risk of reoffending as low with a good long-term prognosis.
The accused accepted six of the seven conditions proposed in Dr Furst's treatment plan but objected to any requirement to take psychiatric medication, citing distrust of pharmaceuticals and a preference for her current lifestyle. The court acknowledged this was a genuine and understandable perspective, but took into account her history of mental instability, the serious nature of the offence, and the statutory requirement that release not pose a serious danger to the public.
The court resolved the tension by framing the medication condition carefully. Rather than directing that the accused must take medication, the condition required compliance with any medication prescribed by her treating psychiatrist. The court noted that the accused would remain free to discuss with any psychiatrist whether medication was necessary and to seek to persuade that clinician it was not required.
The court also accepted the prosecution's proposed additional conditions: that the accused continue to comply with an existing apprehended domestic violence order, that she continue to reside with her mother, and that she not approach or contact her estranged husband or children except in compliance with any Family Law Act 1975 order.
Orders Made
The court made an order under s 39(1) of the Mental Health (Forensic Provisions) Act 1990 releasing the accused from custody subject to the following conditions:
- Remain under the care of the Auburn Community Mental Health Service or its successor for ongoing case management
- Attend appointments with any allocated case manager or delegate on a regular basis, initially fortnightly
- Attend appointments with any allocated treating psychiatrist or delegate on a regular basis, initially every two months
- Comply with psychiatric medication as prescribed by any treating psychiatrist, with a possible further trial of Valdoxan (Agomelatine) 25mg orally at night
- Comply with psychological therapy addressing adjustment to marriage breakdown, loss of access to children, and offending behaviour
- Continue to receive support from the Lingyen Mountain Temple
- Engage in social, occupational, and vocational rehabilitation as directed by her case manager, with a preference toward returning to work as a music teacher
- Comply with the terms of the apprehended domestic violence order made at Burwood Local Court on 13 August 2014
- Continue to reside at her stated home address
- Not approach, attempt to approach, or contact her estranged husband or either child except in compliance with any order under the Family Law Act 1975
The court also directed the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the order, and directed that copies of relevant psychiatric reports be included in that notification.
Key Takeaways
- Under s 39(2) of the Mental Health (Forensic Provisions) Act 1990, a court cannot order release following a special verdict of not guilty by reason of mental illness unless satisfied on the balance of probabilities that the safety of the person and members of the public will not be seriously endangered.
- A treating psychiatrist's positive assessment of risk, including findings of remission and low likelihood of reoffending, can satisfy the statutory threshold for conditional release even where the accused has a history of non-compliance with medication.
- Where a person subject to a special verdict objects to prescribed medication on personal or lifestyle grounds, a court may frame a medication condition so that it requires compliance with any prescription actually made by a treating clinician, rather than mandating medication in absolute terms.
- The District Court treated consistency between its release conditions and orders made in other jurisdictions (including family law and apprehended violence orders) as a relevant consideration in shaping the terms of release.
- Conditions of release under s 39 can encompass a broad range of matters, including residential arrangements, therapeutic engagement, vocational rehabilitation, and compliance with orders from other courts.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 39
- Family Law Act 1975 (Cth)
Cases cited: None cited in the judgment.