KMD v. CEO (Department of Health NT) & Ors

Lower Court Judgment

23/07/2024 Supreme Court of the Northern Territory (Blokland, Reeves & Burns JJ)

[2024] NTCCA 8

Catchwords

Criminal law – mental impairment – supervision orders – where appellant found not guilty by reason of mental impairment of eight offences and subject to custodial supervision order under s 43X(2) of Criminal Code (NT) – where such order required first respondent to submit to Court report on treatment or management of supervised person’s impairment and Court may conduct review to determine whether person may be released from custodial supervision order – where on completion of review s 43ZH(2) Criminal Code required Court to vary order to non-custodial supervision order unless satisfied on the evidence that safety of supervised person or public will be seriously at risk if person released on non-custodial supervision order – where primary judge made non-custodial supervision order – where majority of Court of Criminal Appeal found not reasonably open to primary judge to find safety of public not seriously at risk if appellant placed on non-custodial supervision order – proper standard of appellate review to be applied – whether majority in finding correctness standard rather than House v King standard applied – whether majority erred in ordering custodial supervision order be confirmed without providing appellant with further hearing or opportunity to adduce evidence relevant to risk based on time she spent in community following primary judge’s decision in circumstances where conduct of appeal gave rise to reasonable expectation that if CCA found error she would be afforded further hearing – whether majority erred in ordering custodial supervision order without any evidence relevant to risk arising from appellant’s time in community – whether majority erred in holding primary judge’s periodic review miscarried because appellant refused to engage with one of persons who prepared report under s 43ZN(2)(a) of Criminal Code.