How I found out a killer was stalking me
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Earlier this month a second jury convicted former New South Wales psychiatrist Jean Eric Gassy of murdering South Australia’s mental health chief Margaret Tobin. <b>Dr Peter Arnold</b> writes that shortly after Gassy was charged, he was told that the accused was found carrying a photo of him. Dr Peter Arnold, former Deputy President, NSW Medical Board, writes: In November 2002, I was rung by an Adelaide detective, who asked if I remembered Dr Jean Eric Gassy. I didn’t, but my computer forgets nothing. A 1994 report showed that the NSW Medical Board had referred Gassy, then a psychiatrist in Sydney, to an Impaired Registrant’s Panel I had chaired. Having met him only once eight years previously and having interviewed hundreds of doctors for the Medical Board, I did not remember him. The detective told me that Gassy had been charged with the murder in Adelaide of his former colleague, Dr Margaret Tobin. They had found a photograph of me in his wallet, with an up-to-date physical description and details of my home address and security. I was one of several doctors whose personal details were on his so-called “hit list”. A few days later, when shown photographs of him, both heavily bearded and clean-shaven, I did not recognise him. This man who wanted to kill me had the weapons, had trained as a marksman and had been stalking me. He could have approached me in the street, greeted me, and shot me! He could have been stalking me while I was out walking with my grandchildren. A frightening thought. I later discovered that the police had kept me under observation during the ten days between finding his wallet and arresting him. I discovered that he believed that I had been part of a widespread conspiracy to deregister him. I discovered too, that this belief was part of a psychotic illness, which, due to his refusal to cooperate with psychiatric assessment, had been untreated. So began seven anxious years for me and for my family — lest Gassy ever be let out of gaol. In 2004, he was tried, found guilty of Dr Tobin’s murder and sentenced to life in prison. In 2005, he lost his appeal to the SA Appeal Court, with one judge in his favour. In 2008, he successfully represented himself before the High Court of Australia, convincing three of the five judges to grant him a re-trial. Last month, he was again found guilty. Final sentencing is pending. His re-conviction has brought a profound sense of relief to those on his hit list and to our families. We can now relax. My psychiatric colleagues tell me that his psychotic condition is incurable, his ‘conspiracy’ delusions fixed, and his determination to execute his hit list undimmed. My family and I dread the thought of his ever being released. If he is jailed for life, I get my life back. If he isn’t, I will have to live with the fear and uncertainty that he could take mine. While watching the progress of this matter through four courts over the last five years and twice giving evidence, I have had plenty of time to contemplate this case. I feel that the legal profession should understand how the decisions they make, like awarding a re-trial, while perhaps technically correct, can adversely affect innocent parties. As in Medicine, so in Law: “cleverness” has untoward side effects, some unexpected, but others which should be obvious. To my mind there are two main issues. The first relates to the risk of releasing a man who still poses a serious risk to others. The second relates to the way in which the courts deal with an accused with a serious mental illness, into which he has no insight. The principle set out in Briginshaw v Briginshaw is accepted in civil cases where there is conflicting evidence of the “he says, she says” variety: the judge considers the consequences for the accused of a “guilty” finding. I believe that, where there is a hit list, a similar concern about consequences should apply when considering a “not guilty” criminal finding. While it is generally “better that ten guilty persons escape, than that one innocent suffer”, had Gassy been let out of gaol, the system was gambling with our lives. Gassy repeatedly told the first jury that Dr Tobin and the others on his hit list had conspired to have him deregistered. How could the appeal judges, who found in his favour, have ignored this clear threat to the rest of us, given that Dr Tobin had been murdered? The second issue is perhaps even more important. Lack of insight is often a key characteristic of psychotic illness — Gassy was not unusual in this respect. Can juries and judges safely manage an accused who is clearly psychotic, but won’t acknowledge it and won’t cooperate with psychiatric assessment? Should expert psychiatric assessors sit on the bench as advisors? Why is 21st century Law unable to handle someone who lacks the insight to realise that he is psychotic and who has lost touch with reality? Why did those on his hit list, and our families, have to endure these five years of anxiety, lest he be released? In the light of this case and its consequences, I call on the Law to address these issues. Unless satisfactory solutions are found, such situations could arise again. |
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7 Comments
In my opinion this story highlights an interesting fact of the processes used to govern, order and regulate our society. We have been led to believe that lawyers are the only types of people to make decisions regarding so many aspects of the societies we live in.
I look at the number of lawyers sitting in Parliaments (both state and Federal) and ask myself the simple question “Why are lawyers, not doctors, teachers, psychologists or any other professions represented so disproportionably.”
We saw one lawyer spend twelve of the last 14 years determining the financial framework under which this country would operate. I have no idea what profession Wayne Swan studied at university, but I would be EXTREMELY surprised if it was economics. I can hardly see any government at any level within Australia appoint as Attorney General anybody but a lawyer-turned-politician.
The current legal and governmental practices of most western nations have an excessively strong preference for legally trained people to determine what the rest of us should do. I suspect that this is a consequence of there being so many legally trained people in parliaments.
There are decreasing amounts of consultation with other professional groups who in a number of situations are better qualified to make decisions about things such as environmental degradation, metal health, public safety, education etc.
A salient example is outlined in the above story, where we essentially had a group of lawyers determining if a person, who appropriate professionals have assessed to be a danger to both himself and others, should be given licence to roam about unmedicated or monitored. The argument would be made that those lawyers approached and sought advice from members of the mental health profession, but the people who made the decisions were and remain LAWYERS.
Surely in a sane world the ultimate decision about whether someone with an illness (be that disease mental or physical) is actually a danger to someone due to that illness should be made by those who know what they are talking about in consultation with other professionals as they deem fit.
Then we can let the lawyers go back to drafting and interpreting law and leave members of other professions to do the jobs we (I am a qualified Psychologist) are trained to do.
This report upsets a belief I think is a widely held in Australia: that there is a legislated mental health process for dealing with dangerously mentally ill people, including compulsory confinement in a mental health institution - for treatment and for protection of the patient, or of others who might become victims.
Although I would expect a judicial or quasi-judicial procedure to form part of a committal process, I think the involvement of a jury would not be appropriate.
Is there such a process? If so, was it used in this case?
If there is not, how are such situations dealt with?
I sympathise with Peter Arnold. Obviously there are no even near-perfect solutions to problems of the human condition. The great tradition of the common law that no one should have their life destroyed by the awesome power of government, royal or republican, without proof beyond reasonable doubt to the satisfaction of a jury of twelve (supposedly of one’s peers) is not one to be lightly tampered with, even if, in this country “destruction [of a] life” does not extend to the death penalty. Evidence given to a Victorian Parliamentary Committee in the 1980s when the Community Protection Bill (later enacted) was under consideration because of the threatening behaviour of a prisoner whose sentence was about expire was very strongly to the effect that “dangerousness” couldn’t be predicted reliably led to all or most members of that committee voting with their consciences against the Bill. (And not one was a lawyer, from memory).
Perhaps Dr Arnold would distinguish a personality disorder (as in the case of the threatening prisoner) and those who can be reliably diagnosed as delusional psychotics. In either case is it not better for the community to devise measures which are not as clunky as the criminal justice system or rule-of-thumb bureaucracy. Nor can the current fashions of the brain and mind sciences be conclusive (excuse the irreverent “fashions” but the story of helicobacter pylori obtrudes……). To preserve liberty the community should be willing to spend money as it does when saving the life of someone who sails a yacht into a storm three thousand kilometres south of Australia. Electronic tagging, effective surveillance and so on should be available alternatives to incarceration. In the case of the insane who should be sectioned - and why wasn’t Gassy locked up already? - a combination of degrees of restraint and surveillance should be available, though it is hard to see how Gassy could be safely let out, even under strict surveillance and monitoring and round the clock tagging plus restrictions on where he could go, until he is at least 70 years old. As it was reasonable to say of Saddam Hussein’s behaviour that he invited and excused invasion by his actions (in his case intentionally designed that way) which made it reasoable to suppose that he had WMDs and might use them so it could be said of an unconvicted Gassy on release from restraint in a mental health institutions that he might be given the chance to behave impeccably but, the moment he gave what might reasonably be regarded as evidence of threatening behaviour or preparation to hurt others, he should be locked up indefinitely with the onus heavily on him to demonstrate that he should be let out on any terms.
Malcolm Grant is wrong about Attorneys-General always being lawyers, even in Australia. (I met one from Laos who was a Major-General and not a lawyer at all). Even in Victoria where there are well over a hundred MPs Andrew McCutcheon, an architect, was Attorney-General in the 1980s in an ALP government. Unfortunately it is not just a problem of legal knowledge. Some Attorneys-General over the last 150 years of Australian self government have not been suited to being the titular leader of the Bar by a wide margin. The model qualification should be that of leading silk such as R.G. Menzies, T.E.F. Hughes or Robert Ellicott though others have sometimes performed with distinction and even a proper degree of independence from the government of which they form a part.
Herod, you bring up a number of points, answer almost none of them and then as a conclusion you drag out a few random pieces of fact (the Laotian & recent Victorian Attorneys-General former occupations) in your response.
I would have thought that you would attempt to answer the issues raised in the original article and my response.
Frankly I am not sure what you are saying. It would appear that you are attempting to support the status quo where all of the big decisions affecting society should be made by lawyers.
You then finish by saying that the role of Attorney General should be left to Liberal politicians.
Unfortunately Malcolm Grant some of us wh0 have seen certain problems for very many years are still less certain than you apparently are that you know the answers. It occurred to me to provide you with some information about Attorneys-General to contribute to your modesty if not to make you much more usefully well informed. As to the rest I would like to see those capable of it contribute to the difficult practical reconciliation of the goals of liberty and security. You, for example, though I realise you are not a psychiatrist, might help with the distinction between those regarded as having a “mere” personality disorder (right up to dangerous psychopathology) and those whose psychosis makes the insane by the old-fashioned McNaghten rules of c. 1840.
As an Organisational and Educational Psychologist of almost 20 years, my memories of abnormal psychopathology are so distant that I wouldn’t begin to assume to educate anyone on the differences between a personality disorder and a severe mental illness.
I am sure that Dr Arnold could do so in an instant and as that question was addressed to him in your original post, I wouldn’t be so rude or presumptive as to answer it on his behalf.
I was asking why so many lawyers were involved in making decisions in instances where I believe more appropriately qualified people should be the primary decision makers.
Your response to the article and the points I raised was to discuss a seemingly random collection of points of fact: Saddam Hussein, rescue at sea & electronic tagging. You then went on to introduce some facts about two Attorneys General in, I suspect, an attempt to prove my entire argument wrong (yes I admit that I was generalising).
You then go on to some ad hominem personal abuse.
I am sorry that I seem to have offended you by disputing your opinion, but I thought that a rational discussion was based on the presentation of a perspective or point of view and then an argument about the facts raised, not a descent into personal attack and nit picking.
Back to my argument, why do lawyers continue to be the majority of people elected to parliaments in Australia and why do we as a society continue to be told or assume that they are the best people to determine and manage the rules by which we exist as a society, when there are often (but not always) better qualified people to make those decisions.
I am sorry if my pointing out that your denigration of lawyers actual or potential contribution to decision making in matters of general public importance was not based on a particularly reliable basis of fact was taken as “ad hominem personal abuse”. I didn’t intend it to be the basis for rejection of your views but rather a suggestion, to you, more than anyone, that the premises for an argument to be useful have to be reliably correct.
Also I don’t see your premise as now stated “we as a society continue to be told or assume that they are the best people to determine and manage the rules by which we exist as a society” as unarguably, or even probably, correct. My observation is that in any political party’s candidate selection processes, at least quite frequently, there is a general antipathy to the idea of selecting a lawyer.
“why do lawyers continue to be the majority of people elected to parliaments”? Again, not true, not even near true. Why, you might ask, do you get that impression? Presumably because lawyers tend to be relatively good at doing the things which give prominence to MPs - though I suspect we would be talking there mostly of city members although country solicitors as MPs are not uncommon and elected often enough because, like pharmacists, they are well networked in their local communities.
As to election, your complaint, for so I must construe it, is against our democratic system. People get elected to parliament because they get the necessary majorities to vote for them. A sophisticated, almost an insider’s, objection to that as a complete answer might be that the party system means most MPs are elected because their parties have endorsed them. That, however, is not a good objection, because, as pointed out above, there is often antipathy to selecting a lawyer if a non-lawyer can be regarded as an equally good candidate (remembering that the first consideration for a party is that its candidate actually win) and, on top of that, it doesn’t answer the question as to why party members would choose lawyers and doesn’t answer the question, in the case of marginal seats, as to why a lawyer might be the best candidate to win it for his or her party.
Your questions, as posed, don’t appear to recognise a distinction between the legislative, executive and judicial functions. One might be tempted to say that doing justice according to law, once legislators (who for the sake of argument may be taken to be non-lawyers in due proportion to numbers in the population) have made the rules, clearly requires training in construing the meaning of the rules and their application to particular facts, which facts themselves, even when determined by a jury with absolutely no known qualifications, need to be determined in a manner which excludes the irrelevant and, if possible subjects the evidence to highly practised scrutiny, including the evidence of expert witnesses. If only to ensure that long cases don’t break down expensively because tribunal members don’t follow the rules of natural justice, or meander along interminably following irrelevancies, there are practical advantages in involving people who have already devoted 10 or 20 years to participating strenuously in such processes. But that is the judicial function.
In the executive area of government, knowledge of the law is necessary, even if not that of a qualified lawyer, in order to ensure that government acts are legally valid, and that government doesn’t commit injustices at the expense of the citizen, or, if the citizen is compensated with damages, the taxpayer.
The legislative function, whether for Acts or Regulations, requires precision in drafting that presupposes a knowledge of the law sufficient to know how particular words and phrases are likely to be construed in court if there is a dispute over meaning (which is frequent). That way a proposed law can be made more likely to achieve its desired effect. While Parliamentary Counsel (draftsmen) are specialists in this area, and always lawyers, legally qualified MPs often are critical in the final drafting and amending process, not only because they can correct what draftsmen have proffered but because they can more readily than non-lawyers, as a general rule, see where the draftsmen’s and bill proponent’s minds have failed to meet.
Doing justice is an expensive business. To anyone who has seen them close up, deciding of contested litigation by single judges or by juries is pretty chancy. A presiding judge sitting with an expert jury of assessors might well be an improvement if getting to truth and the most sensible outcome (not necessarily the same) were the only criterion. But are we willing to pay the cost - or even to load the cost on to the occasional losing party who could pay?