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.