Re AB

Case [2018] VSC 349 29 June 2018

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IN THE SUPREME COURT OF VICTORIA

Not restricted[1]

[1]See footnote 2, below.

AT MELBOURNE

COMMON LAW DIVISION

S CR 2013 0145; S CI 2017 01408

IN THE MATTER of a review of a custodial supervision order imposed on “AB”

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 April & 20-22 November 2017 (oral hearing) 20 December 2017 & 12 January 2018 (written submissions)
DATE OF DECISION:	29 June 2018
CASE MAY BE CITED AS:	Re AB
MEDIUM NEUTRAL CITATION:	[2018] VSC 349

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MENTAL IMPAIRMENT AND CRIMINAL LAW – Review of custodial supervision order (“CSO”) – AB strangled two co-patients at Thomas Embling Hospital (“TEH”) with ligature, killing one but not the other – AB found not guilty by jury of murder and attempted murder by reason of mental impairment – History of mental illness, including (partly) treatment-resistant schizophrenia, and serious acts of violence, especially while in custody – Exceptionally, certificate of available services declared no facilities or services available for AB in designated mental health facility (i.e. TEH) – Level of security and facilities at TEH inadequate to cater for AB’s estimated risk of violence on long-term basis – CSO made but, absent ‘favourable’ certificate, Court compelled to commit AB to prison instead of TEH – Upon review of CSO three years later, new certificate of available services makes same negative declaration – Certificate based on advice that AB still could not be managed safely at TEH at present – Prison conditions in which AB held in interim extremely restrictive, including isolation from others and movement about in handcuffs accompanied by guards, but high level of psychiatric and psychological care provided – Some improvement in AB’s mental health and possibility of further improvement in future – Possibility of high security mental health facility to be commissioned and built in future – AB concedes necessity of continued detention in prison on CSO, for time being – Unnecessary to decide whether, upon review, ‘favourable’ certificate of available services required to allow change to place of custody from prison to TEH – Existing CSO and place of custody (prison) confirmed – Possible underestimation of effect of anti-psychotic Clozapine in controlling AB’s illness and risk of violence – Further review directed by 1 September 2019 – Anonymization of reviewee and others in reasons – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 20, 23, 24, 26, 27, 31, 33, 39, 40, 41, 42, 47 & 75; Mental Health Act 2014 (Vic), ss 3, 276, 306 & 329.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Carpenter	John Cain, Solicitor for Public Prosecutions
For the Accused/Reviewee	Ms M Fox QC	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	Mr P Matthews	Legal Services Branch, Department of Health and Human Services
For the Attorney-General	Ms D Costaras	Victorian Government Solicitor
For Corrections Victoria	Ms K Grinberg	Victorian Government Solicitor

HIS HONOUR:

Overview

In the early hours of…

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 Re AB

Details

AGLC: Re AB [2018] VSC 349
Case: [2018] VSC 349
Decision Date: 29 June 2018

CaseChat Overview and Summary

AB was the subject of a review of a custodial supervision order (CSO) in the County Court of Victoria. AB had previously been found not guilty by reason of mental impairment of murdering one patient and attempting to murder another at Thomas Embling Hospital (TEH). AB had a history of mental illness, including treatment-resistant schizophrenia, and had exhibited serious acts of violence, particularly while in custody. The court had to decide whether AB should continue to be detained in prison or if he could be transferred to TEH, given that a certificate of available services had been issued stating there were no facilities or services available for AB at TEH. The court considered that the level of security and facilities at TEH were inadequate to cater for AB’s estimated risk of violence on a long-term basis. The court was compelled to commit AB to prison instead of TEH due to the absence of a ‘favourable’ certificate. Upon review of the CSO three years later, a new certificate of available services was issued making the same negative declaration, stating that AB still could not be managed safely at TEH at present. The court considered that AB’s detention in prison was extremely restrictive but noted the high level of psychiatric and psychological care provided. The court observed that there had been some improvement in AB’s mental health and the possibility of further improvement in the future. The court also considered the possibility of a high-security mental health facility to be commissioned and built in the future. AB conceded the necessity of continued detention in prison on the CSO for the time being. The court did not need to decide whether, upon review, a ‘favourable’ certificate of available services was required to allow a change to the place of custody from prison to TEH. The existing CSO and place of custody (prison) were confirmed. The court directed a further review by 1 September 2019 and anonymized the reviewee and others in the reasons. The decision was made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Mental Health Act 2014 (Vic).

Orders