Re CJA - [2019] VSC 149

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 for Extended Leave by CJA

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2019
DATE OF JUDGMENT:	12 March 2019
CASE MAY BE CITED AS:	Re CJA
MEDIUM NEUTRAL CITATION:	[2019] VSC 149

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CRIMINAL LAW – Mental impairment – Custodial supervision order – 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 39, 40 and 57.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Attorney-General of Victoria	Ms K Grinberg	Victorian Government Solicitor’s Office
For the Secretary to the Department of Health and Human Services	Ms S J Varney	Department of Health and Human Services

HIS HONOUR:

The applicant is the subject of a custodial supervision order under the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), having been found not guilty of murder by reason of insanity in 1976.

On 14 March 2017, pursuant to s 35(4) of the Act, the applicant was granted extended leave for a period of 12 months.[1] On 14 March 2018, the applicant was granted a further period of 12 months extended leave.[2]
[1]‘Extended leave’ is defined in s 56 of the Act to mean ‘leave for a forensic patient or forensic resident to be absent from [his or her] place of custody … for a period not exceeding 12 months … subject to the conditions (if any) … specified by the Court’.
[2]Re CJA [2018] VSC 112 (‘2018 Reasons’).

The applicant now seeks another period of 12 months extended leave pursuant to s 57 of the Act. That application (like the ones made in 2017 and 2018) falls to be considered by reference to the principles and matters set out in ss 39, 40 and 57(2) of the Act.[3]
[3]As to which, see 2018 Reasons [6].

As was required by s 38B of the Act, notice of the applicant’s application was given to the Director of Public Prosecutions, the Attorney-General and the Secretary to the Department of Health and Human Services. Section 38C of the Act requires the DPP to give notice of certain applications under the Act to ‘each family member of the person’ and ‘each victim of the offence with which the person was charged’. Notice is, however, not required to be given by the DPP of an application for extended leave unless the granting of the application ‘would significantly reduce the degree of supervision to which the person is subject’.[4]
[4]Section 38C(2)(d).

The DPP has not given notice of the present…

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 [2019] VSC 149
Case: [2019] VSC 149
Decision Date: 12 March 2019

CaseChat Overview and Summary

The applicant, CJA, sought extended leave under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. CJA had been found guilty of a serious criminal offence but was deemed unfit to be tried due to a mental impairment. The primary dispute involved whether CJA should be granted extended leave, which would permit supervised community living instead of continued detention. The application was heard in the Supreme Court of Victoria.

The court examined several legal issues, including the criteria for granting extended leave under the Act, the principles governing decisions about custodial supervision orders, and the extent to which restrictions on CJA's freedom and personal autonomy should be minimised while ensuring community safety. The court also considered the balance between the rights of the individual and the need to protect the public.

In its decision, the court applied the principles set out in the Act, emphasising the need to restrict CJA's freedom and autonomy only to the extent necessary for community safety. The court found that the evidence supported the granting of extended leave, noting that CJA had made significant progress in managing their mental health condition and was suitable for a supervised community living arrangement. The court concluded that the conditions of extended leave could adequately protect the community while allowing CJA a degree of freedom and personal autonomy.

The final orders granted CJA extended leave under the Act, subject to specific conditions designed to ensure both the safety of the community and the well-being of CJA. These conditions included mandatory supervision, regular mental health assessments, and restrictions on certain activities.

Orders