Lessons from the Bourke Street Mall tragedy

Clive Williams

Police and ambulance staff have become the first line of defence for the public from potentially violent individuals with mental health issues.

While politicians are adept at displacing blame (and taking credit), last week's tragic Bourke Street mall attack probably had less to do with the unique (and now maligned) Victorian bail granting system, and more to do with Australia's inadequate mental health management system and the politically correct constraints placed on front-line police.

Turning to the bail issue first. A person who has been arrested but not yet convicted of an offence is accorded the principle of presumption of innocence – but there is no common-law right to be released on bail. Victoria, NSW, and South Australia are common-law jurisdictions. These states have Crimes Acts which list the most common offences and fix their penalties, but do not always exhaustively define the elements of an offence.

Bail is money or property deposited or pledged to a court to secure release from police custody or jail of an arrested suspect. Release is granted on the understanding that the suspect will return for required court appearances. Failure of an accused to appear can mean loss of money/property lodged when bail was granted.

Victoria has an unusual "bail justice" system. A Victorian bail justice is an unpaid volunteer who hears after-hours bail applications and some remand hearings and other matters. There are no specific qualifications required to become a bail justice. However, a suitable applicant needs to be over the age of 18, an Australian citizen, not insolvent, and to complete a three-day Justice of the Peace course. Many have relevant tertiary qualifications.

The man accused of killing pedestrians last Friday was released by a bail justice days before the alleged attack, despite his release being opposed by police. The Victoria Police Association wants police to be given the power to remand suspects until they can face a magistrate. However there is no guarantee that a magistrate would have acted any differently.

When deciding whether to grant bail, general factors considered include: access needed by the accused to prepare a defence; seriousness of the offence; prospective level of punishment; whether the accused can be expected to answer bail; whether the accused is likely to re-offend, and; whether the accused is likely to interfere with witnesses.

Considering next mental health issues. Possibly up to 4 per cent of the population suffer from mental health problems. It is often difficult to assess whether someone with mental health issues will turn violent, although intervention early to address risk factors can prevent progression to violence.

In the past, most of those deemed to be a risk to the population-at-large would have been institutionalised. Today there is more emphasis on crisis healthcare with return of patients to the community, often with outpatient therapy, compulsory depot injections of anti-psychotics, and medication. Problems can arise when patients think they are cured and avoid treatment.

It can be even more difficult and dangerous dealing with people who have been taking methamphetamines, including ice. At higher doses, methamphetamines can induce irreversible damage, including psychosis, breakdown of muscles, seizures, and bleeding in the brain. Chronic high-doses can precipitate unpredictable and rapid mood swings, delusions and violent behaviour.

Much of police patrol time in Australia is spent dealing with mentally disturbed persons and calming those who seem likely to become violent. Police and ambulance staff have become the first line of defence for the public from potentially violent individuals with mental health issues. As a last resort, police may have no choice but to use potentially lethal force to protect themselves and the public. Police then have to justify their actions afterwards.

Politicians are to some extent protected against fixated individuals who might want to harm them. Fixated Threat Assessment Centres (FTACS) combine police and mental health specialists to identify potential problem individuals and protect politicians. This process has not been extended to protect the public except in Queensland under "Project Solus".

Another category of dangerous persons is violent criminals and grievance-fuelled lone-actors, who may or may not have mental health issues. It seems to be the case that those who act as part of a criminal or terrorist group are less likely to have mental disorders than lone criminal actors and lone wolf terrorists. Research has also found a significantly higher rate of schizophrenia among lone-actor terrorists than in the general population.

What the Melbourne incident suggests is the need to: review the Victoria bail granting system (without scapegoating bail justices); provide better management support for front-line police (including delegated authority to forcibly stop suspect vehicles), and; determine whether we can better identify and compulsorily manage potentially violent mentally disordered persons.

This article first appeared in Fairfax Media on Friday, 27 January 2017.

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team