Re CJA - [2018] VSC 112

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:	14 March 2018
DATE OF JUDGMENT:	14 March 2018
CASE MAY BE CITED AS:	Re CJA
MEDIUM NEUTRAL CITATION:	[2018] VSC 112

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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.

PRACTICE AND PROCEDURE – Application for extended leave – Parties submitted proposed consent orders – Whether proposed consent orders should be made in chambers – Whether a hearing necessary.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Werkmeister	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	Mr M McLay	Department of Health and Human Services

HIS HONOUR:

In 1973, the applicant was arrested and charged with murder. 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.[1]
[1]See s 420 of the Crimes Act 1958.

On 18 April 1998, upon the commencement of Schedule 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.[2] The nominal term of the applicant’s custodial supervision order was 25 years.[3] The nominal term expired in 2001.[4]
[2]Schedule 3 was given effect by s 89 of the Act.
[3]See cl 2(2) of Schedule 3 and s 28 of the Act.
[4]See cl 2(4) of Schedule 3 of the Act.

Section 35 of the Act requires major reviews to be conducted of custodial supervision orders at least three months before the end of the nominal term of the order, and thereafter at intervals not exceeding five years for the duration of the order. Pursuant to the terms of the Act, major reviews of the applicant’s custodial supervision order were conducted in 2001,[5] 2006[6] and 2011.[7] A further major review was commenced in 2016, but was then adjourned until March 2017.[8] At each of these major reviews, the applicant’s custodial supervision order was confirmed.[9]
[5]Re [CJA] [2001] VSC 147R (Kellam J).
[6]Re [CJA] [2006] VSC 371R (Kellam J).

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 [2018] VSC 112
Case: [2018] VSC 112
Decision Date: 14 March 2018

CaseChat Overview and Summary

The appellant in this case sought extended leave to appeal against a decision of the Supreme Court of a State that imposed a custodial supervision order. The appellant argued that the court should have imposed a non-custodial supervision order instead. The appellant was found not guilty by reason of mental impairment for a criminal offence and the court was required to decide the appropriate form of supervision order to impose. The court had to consider the principles outlined in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, specifically sections 39, 40 and 57, which required the court to impose a supervision order that restricted the appellant's freedom and personal autonomy to the minimum extent consistent with the safety of the community.

The court considered whether the proposed consent orders submitted by the parties should be made in chambers or whether a hearing was necessary. The court found that since the parties had submitted proposed consent orders, a hearing was not necessary as the issues were not in dispute. The court also considered the principles outlined in the Act and found that the appellant's risk to the community was low and that a non-custodial supervision order would be sufficient to ensure the safety of the community. The court found that the appellant's right to freedom and personal autonomy should not be restricted any further than necessary.

The court allowed the appeal and set aside the custodial supervision order imposed by the Supreme Court. The court made the proposed consent orders in chambers and imposed a non-custodial supervision order instead. The court emphasised the importance of applying the principles outlined in the Act and ensuring that any restriction on the appellant's freedom and personal autonomy was kept to the minimum consistent with the safety of the community.

Orders