Director of Public Prosecutions v A P

[2008] VSC 601

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1455 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

AP

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2008; 7,11 August 2008; 24 September 2008
DATE OF JUDGMENT:	23 December 2008
CASE MAY BE CITED AS:	DPP v AP
MEDIUM NEUTRAL CITATION:	[2008] VSC 601

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CRIMINAL LAW AND PROCEDURE – Murder – Verdict of not guilty because of mental impairment – Orders – Custodial supervision order – Crimes(Mental Impairment and Unfitness to be Tried) Act 1997 Part 5.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr C W Beale	Office of Public Prosecutions
For the Accused	Mr C Dane QC with Ms H Spowert	Victoria Legal Aid

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HIS HONOUR:

1. On 24 July 2006 the accused, AP, killed her partner Mr SK by stabbing him to death. AP had had a long-term relationship with Mr K. On that evening she was charged with his murder. On 11 August 2008 in this Court she was found not guilty of murder by reason of mental impairment. At that date AP, a long-standing paranoid schizophrenic, was being detained as a involuntary patient at the Thomas Embling Hospital, Fairfield, it being an approved mental health service, pursuant to a Restricted Hospital Transfer Order under s.16(3)(b) Mental Health Act 1986. On 11 August 2008, and pursuant to s.24(1)(b) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 I ordered that AP be remanded in custody at that Hospital until submissions as to ultimate disposition could be made by counsel on her behalf. A s.47 Certificate of Available Services dated 8 August 2008 was tendered before the Court on 11 August 2008.

1. The hearing resumed on 24 September 2008. On that day, having heard further submissions, I declared, pursuant to s.26(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (hereafter “the Act”), that AP was liable for supervision under Part 5 of the Act. Pursuant to s.28(1) of the Act, I set a nominal term of the supervision order of 25 years and set the commencement date of that term at 24 July 2006, the date of arrest of AP on the charge of murder. Pursuant to s.26(2)(a)(i) of the Act, I committed AP to custody at an appropriate place being the Thomas Embling Hospital, Fairfield, having found pursuant to s.26(4) that there was no practicable alternative thereto. For that purpose I treated, pursuant to s.26(3)(a) of the Act, the s.47 Certificate of Available Services of 8 August 2008 as continuing. I formally remanded AP at the Hospital pending final resolution as appears below.

1. A question arose on the hearing on 24 September 2008 as to the appropriate period for review of the supervision order pursuant to s.27(2) of the Act.  In order to give the parties locus on that matter, I adjourned that matter.  A brief written submission on behalf of AP was received by the Court on 13 October 2008.  On 17 October 2008 a further Certificate of Available Services at the Thomas Embling Hospital pursuant to s.47 of the Act was received by the Court.

1. Some substantial issues, particularly as to the period of review, arose in this matter.  I had hoped to conclude my reasons thereon by now, including as to the period of review pursuant to s.27(2) of the Act, but unfortunately pressure of other court business has prevented me from doing so.  I shall complete my reasons over January and shall publish them early in February 2009.  I express my regret to have inconvenienced persons.

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