R v BURFIELD - [2008] SASC 351

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
R v BURFIELD
[2008] SASC 351
Reasons for Decision of The Honourable Justice Kelly
11 December 2008
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY
Application to vary supervision order - effect of R v Draoui (2008) 101 SASR 267 - amendment to conditions of licence.
Criminal Law Consolidation Act 1935 (SA) s 269P(1), s 269T and s 69U(1), referred to.
R v Draoui (2008) 101 SASR 267, applied.

R v BURFIELD
[2008] SASC 351
Criminal
KELLY J:

This is an application to vary a supervision order under the provisions of s 269P of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
Background
The applicant is subject to a supervision order under Part 8A of the Act by virtue of being found not guilty of the offence of attempted murder by reason of mental incompetence on 15 September 2005. The applicant was placed in detention pursuant to s 269O(b)(i) of the Act, and shortly thereafter a limiting term of eleven years was set.
On 27 September 2007 the applicant’s supervision order was varied and the applicant was released from detention on licence on conditions.
The applicant has applied to further vary the supervision order by amending orders 2(3) and 2(4). The Director of Public Prosecutions has requested that I also review order 3 in the course of this application in light of the recent Full Court decision in R v Draoui.[1] I will consider each issue in turn below.
[1] (2008) 101 SASR 267.
Application for variation
The applicant has requested that his supervision order be varied in the terms of the draft Order for Variation of Supervision Order provided to me by the applicant’s counsel. The Director of Public Prosecutions has agreed to the terms of the draft Order.
In accordance with s 269T of the Act I have been provided with the following reports for consideration:
·Report of Dr N P Nambiar dated 16 October 2008;
·Report of Dr Maria Tomasic dated 23 October 2008;
·Report of Dr Harry Hustig dated 20 October 2008;
·Annual report of Dr Gihan Abeywardena and Dr Narian Nambiar dated 5 August 2008 prepared in accordance with s 269Q; and
·Report of Anna D’Allessandro, Senior Social Worker, prepared in accordance with s 269R.
I am satisfied on the basis of these reports and the submissions before me that the proposed variations to orders 2(3) and 2(4) of the supervision order ought to be granted, subject to minor amendments directed by me at the hearing and contained within the finalised supervision order for acknowledgment by the applicant.
Order 3
I now turn to order 3 of the supervision order. Order 3 of the supervision order states:
3.This program of graduated release must be suspended and the applicant must be confined to the Grove Closed Unit or transferred to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BURFIELD

Details

AGLC: R v BURFIELD [2008] SASC 351
Case: [2008] SASC 351
Decision Date: 11 December 2008

CaseChat Overview and Summary

The case of R v Burfield involved an application to vary a supervision order under the Criminal Law Consolidation Act 1935 (SA). The applicant, found not guilty of attempted murder by reason of mental incompetence, was subject to a supervision order and placed in detention. Subsequently, the applicant's supervision order was varied, leading to their release on licence. The applicant sought further variation of the supervision order by amending specific conditions. The Director of Public Prosecutions agreed to the applicant’s proposed variations but requested a review of another condition in light of a recent Full Court decision in R v Draoui.

The central legal issue in this case was whether the proposed variations to the supervision order should be approved. Specifically, the court needed to determine if the applicant’s requested amendments to conditions 2(3) and 2(4) of the supervision order were appropriate. Additionally, the court had to consider whether the terms of order 3 should be revised in light of the recent Full Court decision in R v Draoui. This required an analysis of the applicant’s mental health reports, the conditions of the supervision order, and the implications of the Draoui decision.

The court examined the reports from various medical professionals and social workers, as well as the submissions from both parties. It found that the proposed variations to conditions 2(3) and 2(4) should be approved, with minor amendments to be incorporated into the finalised order. Regarding order 3, the court considered the recent Full Court decision in R v Draoui, which provided guidance on the interpretation and application of similar conditions in supervision orders. The court concluded that order 3 should be modified to align with the principles established in Draoui, ensuring that the applicant's rights and the public's safety were appropriately balanced.

In summary, the court granted the application to vary the supervision order, subject to the minor amendments proposed by the court. The court also revised order 3 to reflect the principles set out in R v Draoui. The finalised supervision order was to be acknowledged by the applicant, thereby setting new conditions for their release on licence.

Orders

Orders of the court

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Background

Background to the litigation

This is an application to vary a supervision order under the provisions of s 269P of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). Background The applicant is subject to a supervision order under Part 8A of the Act by virtue of being found not guilty of the offence of attempted murder by reason of mental incompetence on 15 September 2005. The applicant was placed in detention pursuant to s 269O(b)(i) of the Act, and shortly thereafter a limiting term of eleven years was set. On 27 September 2007 the applicant’s supervision order was varied and the applicant was released from detention on licence on conditions. The applicant has applied to further vary the supervision order by amending orders 2(3) and 2(4). The Director of Public Prosecutions has requested that I also review order 3 in the course of this application in light of the recent Full Court decision in R v Draoui.[1] I will consider each issue in turn below. [1] (2008) 101 SASR 267.Application for variation The applicant has requested that his supervision order be varied in the terms of the draft Order for Variation of Supervision Order provided to me by the applicant’s counsel. The Director of Public Prosecutions has agreed to the terms of the draft Order. In accordance with s 269T of the Act I have been provided with the following reports for consideration:·Report of Dr N P Nambiar dated 16 October 2008;·Report of Dr Maria Tomasic dated 23 October 2008;·Report of Dr Harry Hustig dated 20 October 2008;·Annual report of Dr Gihan Abeywardena and Dr Narian Nambiar dated 5 August 2008 prepared in accordance with s 269Q; and·Report of Anna D’Allessandro, Senior Social Worker, prepared in accordance with s 269R. I am satisfied on the basis of these reports and the submissions before me that the proposed variations to orders 2(3) and 2(4) of the supervision order ought to be granted, subject to minor amendments directed by me at the hearing and contained within the finalised supervision order for acknowledgment by the applicant. Order 3 I now turn to order 3 of the supervision order. Order 3 of the supervision order states:3.This program of graduated release must be suspended and the applicant must be confined to the Grove Closed Unit or transferred to James Nash House at Oakden in the State of South Australia at the direction of the Director if:-(a) The applicant, in the opinion of the Director, shall have breached any condition or conditions of this Order; or(b) The Director is of the opinion that an action or pattern of behaviour of the applicant may give rise to a risk to (sic) a breach of any such condition; or(c) The Director is of the opinion that the applicant is in need of a level of security that cannot be provided at Glenside Campus; or(d) The Director is concerned that this program of release is not progressing satisfactorily;Provided that:-(e) Such suspension and/or return to James Nash House shall be for a period of not more than 14 days without further order of this Court; and…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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