The NT Court of Criminal Appeal confirmed the prior custodial supervision order
The High Court allowed an appeal of a decision of the Court of Criminal Appeal of the Northern Territory (NTCCA), which set aside a non‑custodial supervision order (NCSO) and confirmed a previously made custodial supervision order (CSO).
The appellant in this case faced charges for offences in May 2013. She was found unfit for trial. A CSO made in June 2015 committed her to custody in a custodial correctional facility. On periodic reviews in 2017 and 2021, Justice Graham Hiley confirmed this order.
In July 2023, a primary judge of the Supreme Court of the Northern Territory conducted a periodic review, considered reports and evidence from medical experts, set aside the CSO, and made a NCSO under part IIA, division 5, schedule I to the Criminal Code Act 1983 (NT).
The NCSO released the appellant from custody that month, subject to conditions. However, in July 2024, the NTCCA allowed an appeal of the NCSO. Thus, the appellant returned to custody after around 12 months of living in the community.
On appeal, the appellant alleged that the NTCCA:
In KMD v CEO (Department of Health NT), [2025] HCA 4, the High Court remitted the case to the NTCCA, which would reconsider the matter through a differently constituted bench. The High Court upheld the appellant’s fourth ground of appeal and found the reasoning of the NTCCA’s majority impermissible.
The High Court ruled that the majority erred in finding that the primary judge’s review of the CSO miscarried because the appellant did not cooperate with the medical experts and erred in confirming the CSO without addressing the requirements of part IIA, divisions 5 and 7, schedule I of the NT Criminal Code.
The High Court emphasised that courts should understand the statutory scheme’s provisions as operating together. In this case, the NTCCA’s majority wrongly treated the NTCCA’s powers on appeal under s. 43ZB(3) as standing free from the rest of part IIA’s provisions, the High Court said.
The NTCCA, in making an order under part IIA, should have complied with the provisions of that part, including ss. 43ZH(2), 43ZM, and 43ZN, the High Court added.
The High Court held that, if the majority recognised the need to comply with these provisions in quashing the NCSO and making the CSO, it would have also recognised that it could not reason that there was no fundamental change in the position regarding the appellant’s mental condition and risk assessment since Hiley’s reviews, given that the appellant did not engage with the medical experts.
The High Court noted that the statutory scheme governing periodic reviews of supervision orders required courts to act based on the most recent and accurate information reasonably available. In this case, under the NCSO, the appellant was released into the community around 12 months before the NTCCA’s judgment.
Thus, the High Court concluded that the NTCCA’s majority could not set aside the NCSO and could not confirm the previous CSO since it could not do so while complying with ss. 43ZH(2)(a) or (b), 43ZM, or 43ZN.
The High Court explained that the majority had two options after it saw error on the part of the primary judge. First, the majority could have required the parties to give the NTCCA further evidence of the most recent and accurate information relevant to ss. 43ZH(2)(a) and (b), 43ZM, and 43ZN before making final orders.
Second, the NTCCA’s majority could have remitted the matter to the primary judge for a consideration of the most recent and accurate information relevant to those provisions before the issuance of further orders.
The High Court noted that the majority could not use the appellant’s lack of co-operation as a basis to find that nothing had fundamentally changed since Hiley’s reviews, especially considering that the appellant had begun residing in the community for about 12 months under the NCSO.
