STATE OF TASMANIA v JOSHUA JOSEF BARKER 10 MARCH 2020
COMMENTS ON PASSING SENTENCE PEARCE J
On 16 September 2019 Joshua Barker was arraigned for the murder of Dale Watson and for the assault of Timothy Bumford. On 24 September 2019, after the trial, the jury found him not guilty of both crimes on the ground of, to use the word used in the Criminal Code, insanity. It follows from the verdicts that the jury was satisfied beyond reasonable doubt that Mr Barker did the acts which constituted both crimes, but that, at that time, he was suffering from a mental disease to such an extent as to render him incapable of understanding that they were acts he should not do. On those verdicts it became necessary for me to determine, in accordance with the Criminal Justice (Mental Impairment) Act 1999, what order should be made.
That Act, by s 21, lists the orders I am permitted to make in a case in which a verdict is returned that a person is not guilty on the ground of insanity. I may release Mr Barker unconditionally. I may release him subject to conditions. I may make a treatment order, which is an order as if under the Mental Health Act 2013, requiring compulsory submission to a treatment plan, usually in the community. I may make a supervision order, which means release under the supervision of the Chief Forensic Psychiatrist, with conditions which may require medication and treatment. Finally I may make a restriction order. A restriction order is an order requiring the person to whom it applies to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court.
It has now been almost six months since the verdict of the jury was returned. During that time it has been quite clear to everyone that, in all the circumstances, no order other than a restriction order or a supervision order could be appropriate. An interim restriction order has been in place for some time as a result of which Mr Barker has been detained in a secure mental health facility, the Wilfred Lopes Centre. However, time has been allowed so that the parties, particularly Mr Barker and his family and those representing them, may obtain expert psychiatric advice. Counsel for the State has always maintained that I should make a restriction order. Until now, counsel for Mr Barker contended that a supervision order should be made. The matter was listed today for the hearing of evidence. However the making of a restriction order is no longer opposed. Before returning to the question of which forensic order should be made, it is first necessary for me to record my findings of fact, based on the evidence before the jury at the trial, about the circumstances in which Mr Watson was killed and Mr Bumford assaulted.
On 9 March 2018, Mr Watson was walking from the home of a friend in Prospect towards the supermarket. He was on the footpath on the corner of Burrows and Knox Streets when a vehicle being driven by Mr Barker left the road and struck him. The force of the impact threw Mr Watson up and forward. He landed on the roadway with such force as to cause extensive fractures to his skull and severe brain damage. He died almost immediately.
After driving into Mr Watson, Mr Barker drove to the home of some people he knew. He told them that he had “killed the snake.” He then drove to an area quite near the centre of Launceston and left his vehicle to confront the driver of a delivery van, Timothy Bumford. Mr Bumford was a stranger to him. After accusing drivers from his company of being paedophiles, and asking the driver to nominate a number, he assaulted the driver by punching and violently grabbing him. Fortunately Mr Bumford was not seriously hurt, although the incident must have been most distressing for him.
As the jury was directed, it follows from the verdict on the murder charge that the jury was satisfied beyond reasonable doubt that Mr Barker, aware of the presence of a person on the footpath, deliberately drove at or near that person. That finding accords with my own view of the evidence. I am satisfied beyond reasonable doubt that, although Mr Barker’s mind was so disordered that he lacked the capacity to know that this was something he should not do, his object was to drive into the thing he saw on the roadway to kill or injure it. There was evidence at trial from a psychiatrist, Dr Elcock, that Mr Barker was so out of touch with reality that he may not have even recognised that the thing he drove into was a person, but I am satisfied he did. He was well able to recognise other people and things during that day. The evidence of the police collision investigator, Constable Rybka, and other evidence, satisfied me that the act of driving was deliberate: Mr Barker revved his engine, deliberately drove off the road without braking or deviation to the place where the pedestrian would have been in clear view. After striking Mr Watson with his car, Mr Barker accelerated away. His later reference to a “snake” was metaphorical.
Mr Barker is now 32. He has no criminal record other than for speeding offences. His life was full of promise. The background to understanding the nature and cause of his mental disease, and why he acted as he did, seems to commence in 2009 when he was 22. Mr Barker was the subject of a savage assault. He was attacked by a number of young men and repeatedly struck with weapons including pieces of wood and iron bars. Apart from the serious physical injuries he suffered, the impact on his mental health was dramatic. His parents and sister gave compelling accounts of how the assault affected him. He became reclusive and withdrawn. He was unable to sleep and experienced intrusive flash backs, nightmares and panic attacks, and believed that his assailants would come looking for him. He distanced himself from family and friends. His symptoms persisted for years. He was diagnosed with post-traumatic stress disorder but the condition largely went untreated. Over the years there were some acute episodes, including one earlier instance of psychosis. The evidence at trial suggested that in the months leading up to March 2018 Mr Barker’s condition became particularly difficult. He became fixated with numerology and religion. He resisted attempts to help him. His family and friends were so concerned that it was planned to take him for treatment on the very day that these incidents occurred. A friend recorded a conversation with Mr Barker which occurred the previous evening as evidence of his condition. All of that was overtaken by events. After driving into Mr Watson, Mr Barker asked others whether the person he had run into was one of two named persons who were his assailants in 2009. I am satisfied that this was the reason he drove at Mr Watson, that is, in the delusional belief that Mr Watson was one of those men.
In determining which order to make I must, in accordance with s 34, apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. By s 35, I must also have regard to the nature of Mr Barker’s condition, whether, if Mr Barker is released he would be likely to endanger other persons, whether there are adequate resources available for his treatment and support in the community, whether he is likely to comply with the conditions of a supervision order, and any other matters I think relevant. I have been assisted in my consideration of these issues not only by evidence adduced at the trial, but by further material including expert evidence prepared since the trial.
I sought a report from the Chief Forensic Psychiatrist. Dr Mike Jordan, was delegated to prepare it. Dr Jordan was Clinical Director of the Tasmanian Forensic Mental Health Service between 2009 and 2016 and is now a consultant to the service. Dr Jordan’s report is dated 8 November 2019. I have since been provided with reports from Dr Cheryl Colquhoun dated 14 February 2020 and Dr Leila Kavanagh dated 18 February 2020. Both reports were requested by counsel for the State for the purpose of these proceedings. Dr Colquhoun is Mr Barker’s current treating psychiatrist. She has treated him at the Wilfred Lopes Centre. She is a highly qualified and experienced forensic psychiatrist. Dr Kavanagh is Head of Department for the Statewide Forensic Mental Health Service. I have also been provided with a reports from Dr Ian Sale dated 8 March 2019 and 26 November 2019, and an earlier report written by Dr Sale dated 11 July 2018. Dr Sale is also a highly qualified and experienced forensic psychiatrist whose opinion has been greatly valued in courts and tribunals in this State for many years. I record my thanks to each of the authors of those reports. The reports have obviously been prepared with great care and I have obtained considerable assistance from them. Dr Kavanagh’s report does not go directly to Mr Barker’s condition, but provides a detailed explanation of the different levels of treatment and supervision to which Mr Barker would be subject under a restriction order at the Wilfred Lopes Centre on the one hand, and under a supervision order in the community on the other. One fortunate result of the debate is a particular focus, after many years, on correct diagnosis and treatment of Mr Barker. Much work has been done on Mr Barker’s current presentation and progress. Expert views have been exchanged and discussed. I take every report into account. There is no longer any need to make detailed reference to the contents.
The consensus of opinion now is that Mr Barker’s psychosis did not arise from post-traumatic stress disorder, but that most likely he has a bipolar affective disorder. That is the view of Dr Sale and Dr Colquhoun. However Dr Colquhoun expresses the opinion that even that diagnosis is unclear. Other differential diagnoses remain possible. For that reason, in her view, a comprehensive assessment of Mr Barker’s mental state over time is required. Dr Jordan expresses the same opinion. Bipolar disorder is episodic and Mr Barker is likely to suffer further episodes of the illness, although the risk of further episodes can be reduced with treatment. As things currently stand, if Mr Barker was in the community, he would pose a risk of violence if he became unwell again. His compliance and responsiveness to treatment and supervision in the community is untested, and he still lacks insight into his condition. Dr Colquhoun recommends a restriction order because:
“Mr Barker requires judicious longitudinal assessment in a contained environment to monitor mental state, clarify diagnosis, optimise pharmacological treatment, exclude organic pathology and to receive adequate psychological therapy to help him develop insight into his illness, his early warning signs, triggers for relapse and to enhance his skill set for managing and coping with stress.”
A restriction order will also allow for constant supervision in a safe and secure environment, and a graduated, monitored and tested release into the community through a leave program. Dr Colquhoun’s opinions are no longer challenged. I accept them.
I have received reports recording, so far as reasonably ascertainable, the views of Mr Bumford, Mr Watson’s family, and Mr Barker’s family. All give genuine and moving accounts of the effect these events have had on them. The loss of Mr Watson’s life is tragic for his family and friends. I express my sympathy to them. As to Mr Barker, the condition which afflicts him exists through no fault of his. I would also make particular mention of Mr Barker’s family. They are loving and devoted to him. I have no doubt that they have done, and will continue to do, everything they reasonably can to address his condition and treatment. They assert, in heartfelt terms, a firm belief that he is best treated in the community with the support of those who love him and can care for him.
I have considered all of the potential alternatives and the matters referred to in s 35. However, I have concluded that no order other than a restriction order is appropriate. In assessing the risk which Mr Barker may pose if released, it is at once to recall the strong nexus between Mr Barker’s mental disorder and the terrible consequences of his acts on 9 March 2018. Mr Barker’s acts caused the death of a man. Sadly, he acted from mental illness which resulted in psychosis and bizarre and extreme behaviour. At the time, his state of mind was completely removed from reality. It is of fundamental importance that the mental illness from which Mr Barker suffers is correctly diagnosed and effectively treated and monitored, so that a court can be confidently satisfied that the likelihood that Mr Barker may endanger other persons, if released into the community, is acceptably small. At present, in my assessment, the risk is unacceptable.
I make a restriction order pursuant to the Criminal Justice (Mental Impairment) Act, s 21(1)(a), requiring Mr Barker to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court. Mr Barker was made subject to an interim restriction order on 29 November 2019. I was asked to express that the order that I now make is to commence on that day. However, in my view, in the absence of an express statutory power to do so, a power cannot be implied from the provisions of the Act. I decline to express my order in those terms. If I was satisfied that I had such a power I would have acceded to the request. My view, however, is not to bind a future court to the position that the date of the making of restriction order for the purposes of s 26(1)(a) of the Act is not the date of the interim order.
I also record my thanks to both counsel for their assistance, not only during the trial but since then.