Re BK - [2023] VSC 649

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
CRIMINAL DIVISION

S CI 2017 01722

IN THE MATTER of an application for variation of supervision order pursuant to s 31, or alternatively for further extended leave pursuant to s 57, of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

and

IN THE MATTER of an application by BK

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2023
DATE OF JUDGMENT:	9 November 2023
CASE MAY BE CITED AS:	Re BK
MEDIUM NEUTRAL CITATION:	[2023] VSC 649

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CRIMINAL LAW – Mental Impairment – Application for variation of supervision order – Alternative application for extended leave – Whether safety of the person subject to the order or members of the public will be seriously endangered as a result of the variation – Application supported by treating experts, the Secretary and the Attorney-General – Application for variation granted – Crimes (Mental Impairment Unfitness to be Tried) Act 1997, ss 31–2, 39–40.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Bevan (solicitor)	Victoria Legal Aid
For the Secretary to the Department of Health	Ms Y Al-Azzawi	Department of Health
For the Attorney-General of Victoria	Ms J Ryan	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	No appearance	Office of Public Prosecutions

HIS HONOUR:

Introduction

The applicant (‘BK’) is subject to a custodial supervision order (‘CSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). BK was granted further extended leave by me for a period of 12 months on 18 November 2022, following a first grant in November 2021.

By notice of application filed 16 August 2023, BK applies for an order to vary the CSO to a non-custodial supervision order (‘NCSO’), pursuant to s 31 of the Act. In the alternative, BK applies for a further grant of extended leave pursuant to s 57 of the Act.

The position of the Secretary to the Department of Health and the Attorney-General on BK’s primary application is that the CSO ought to be varied to a NCSO, on the conditions proposed by Dr James Belshaw in Appendix 1 to the report dated 12 October 2023.

At the conclusion of the hearing I made an order varying the CSO to a NCSO. These are my reasons for making that order.

Background

A detailed background is set out in my reasons for granting extended leave in 2021 and 2022,[1] as well as previous reasons of the Court. In summary, BK is a 40 year old Māori man from New Zealand. He has historically had varying diagnoses,[2] however the report of psychiatrist Dr James Belshaw filed on this application states that BK has an established diagnosis of schizoaffective disorder, chronic neurocognitive deficits, and a history of mild alcohol use disorder and moderate stimulant use disorder (both in sustained remission).[3]
[1]Re BK [2021] VSC 794R; Re BK [2022] VSC 716R.
[2]Re BK [2021] VSC 794R, [3] n 1;

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 BK

Details

AGLC: Re BK [2023] VSC 649
Case: [2023] VSC 649
Decision Date: 9 November 2023

CaseChat Overview and Summary

The case of Re BK involved an individual under a supervision order, seeking a variation of that order to allow for extended leave. The application was heard by the court, which had to determine whether the safety of the person subject to the order or the members of the public would be seriously endangered if the order was varied. The application was supported by treating experts, the Secretary, and the Attorney-General.

The primary legal issue before the court was whether the granting of extended leave would put the safety of the individual or the public at serious risk. The court was tasked with assessing the evidence and arguments presented by all parties to determine if the application for variation should be approved. This involved considering the opinions of the treating experts and the representations of the Secretary and the Attorney-General.

The court found that the application for a variation of the supervision order was supported by the evidence presented, particularly the recommendations of the treating experts. It concluded that the individual’s safety and the safety of the public would not be seriously endangered if the order was varied to allow for extended leave. Consequently, the application was granted. The court based its decision on the provisions of the Crimes (Mental Impairment Unfitness to be Tried) Act 1997, specifically sections 31–2 and 39–40, which relate to the making and variation of supervision orders.

The final orders of the court were to grant the application for a variation of the supervision order, permitting the individual to have extended leave as requested. This decision was made on the basis that the safety of the individual and the public would not be seriously endangered, as supported by the evidence and representations provided.

Orders