Re CJA - [2020] VSC 90

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 04219

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

and

IN THE MATTER of an Application by CJA

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2020
DATE OF JUDGMENT:	4 March 2020
CASE MAY BE CITED AS:	Re CJA
MEDIUM NEUTRAL CITATION:	[2020] VSC 90

---

CRIMINAL LAW – Mental impairment – Custodial supervision order – Application for variation of custodial supervision order to non-custodial supervision order – Alternative application for extended leave – Principles to be applied – Requirement for court to apply principle that restriction on freedom and personal autonomy should be kept to the minimum consistent with the safety of the community – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 31, 32, 39, 40 and 57.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Attorney-General of Victoria	Ms J Buxton	Victorian Government Solicitor’s Office
For the Secretary to the Department of Health and Human Services	Mr D Bruno	Department of Health and Human Services
For the Director of Public Prosecutions	Ms L Wilkinson	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

In 1973, some 47 years ago, the applicant was arrested and charged with the murder of his father and his stepmother.[1] Shortly after his arrest, he was certified pursuant to the provisions of the Mental Health Act 1959. The applicant’s murder trial came on for hearing in 1976. He was found not guilty by reason of insanity. After the jury delivered its verdict, the trial judge, Lush J, ordered the applicant to be kept in strict custody until the Governor’s pleasure was known.[2]
[1]This proceeding is subject to a non-publication order under s 75 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 suppressing any matter that might directly or indirectly enable identification of the applicant or his place of residence, victims of the index offences or their former place of residence, or identification of any member of the family of the applicant or the victims.
[2]See s 420 of the Crimes Act 1958.

On 18 April 1998, upon the commencement of sch 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), the applicant was deemed to be the subject of a custodial supervision order under the Act.[3] The nominal term of the applicant’s custodial supervision order was 25 years.[4] The nominal term expired in 2001, some 19 years ago.[5]
[3]Schedule 3 was given effect by s 89 of the Act.
[4]See cl 2(2) of sch 3 and s 28 of the Act.
[5]See cl 2(4) of sch 3 of the Act.

The Act permits a person the subject of a custodial supervision order to apply for extended leave (being leave to be absent from that person’s place of custody for a period, not exceeding…

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 CJA

Details

AGLC: Re CJA [2020] VSC 90
Case: [2020] VSC 90
Decision Date: 4 March 2020

CaseChat Overview and Summary

This case involved an application by CJA to have their custodial supervision order varied to a non-custodial supervision order, or in the alternative, for extended leave. The court was required to consider the principles governing such applications, including the requirement that any restriction on a person's freedom and personal autonomy should be the minimum necessary for the safety of the community. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was the application of statutory provisions and guiding principles when considering whether to vary a custodial supervision order to a non-custodial supervision order. The court had to balance the need to protect public safety against the rights of the individual, including the principle that restrictions on freedom should be minimised. The court also had to determine whether the alternative application for extended leave should be granted.

In reaching its decision, the court considered the relevant statutory provisions and case law. The court held that the principles governing such applications required a thorough and rigorous assessment of the individual's risk to the community and the potential benefits of a non-custodial supervision order. The court found that the application for a variation of the custodial supervision order to a non-custodial supervision order was not successful, but did grant the application for extended leave subject to conditions.

The court ordered that CJA be granted extended leave for a period of six months, subject to certain conditions, including regular reporting to a supervising officer and participation in a mental health treatment program. The court also ordered that CJA continue to be subject to a custodial supervision order until such time as the court determines that the conditions of the extended leave are met.

Orders