Re CJA
[2018] VSC 112
•14 March 2018
| 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 |
---
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 |
---
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.
---
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).
[7]Re [CJA] [2011] VSC 462R (Beach J).
[8]Re [CJA] (Unreported, Supreme Court of Victoria, Beach JA, 14 March 2017).
[9]See s 35(3)(a)(ii) of the Act.
The circumstances giving rise to the applicant’s trial, his time in custody, and his subsequent treatment and progress are set out in the judgments of the Court delivered at the times of the major reviews conducted in 2001, 2006, 2011 and 2017. As this proceeding is the subject of a non-publication order made under s 75 of the Act,[10] it is neither necessary nor appropriate to set out in these reasons any of the applicant’s history or circumstances prior to the conduct of the last major review in 2017.
[10]The non-publication order prohibits the publication of any matter that ‘might directly or indirectly enable identification of the applicant or his place of residence, the victims of the crime or their former place of residence or identification of any member of the family of the applicant or the victims’.
During the course of the major review conducted in 2017, the applicant applied for extended leave.[11] Upon the conclusion of the hearing of the major review, the Court confirmed the applicant’s custodial supervision order, but granted him extended leave pursuant to s 35(4) of the Act on terms that the applicant:
[11]‘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’.
(a) be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate;
(b) reside at a location known to, and approved by the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(c) abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(d) comply with treatment, testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(e) abstain from the abuse of alcohol and from the use of illicit drugs; and
(f) not leave the state of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate.
In considering the applicant’s application for extended leave, the Court was required, by s 39 of the Act, to apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. Additionally, the Court was required, by s 40 of the Act, to have regard to the need to protect members of the community from any danger the applicant might pose because of any mental impairment or other condition or disability from which he suffered.[12] Finally, s 57(2) of the Act required the Court to determine whether it was satisfied on the evidence that the safety of the applicant, or members of the public, would not be ‘seriously endangered’ as a result of the applicant being allowed extended leave.[13]
[12]Section 40(1) of the Act sets out in paras (a)–(f) matters to which the Court must have regard in making a relevant decision under the Act.
[13]See also s 35(3)(a)(i) and (ii) of the Act.
The applicant was granted 12 months extended leave on the occasion of his last major review, following the provision of detailed reports and evidence by members of the applicant’s treating team. In summary, that evidence established that the safety of the applicant and members of the public would not be seriously endangered as a result of the applicant being allowed the extended leave he then sought. Indeed, at the last hearing, the Secretary to the Department of Health and Human Services and the Attorney-General supported the application for extended leave on conditions that were then proposed by the applicant’s then treating psychiatrist — which conditions were ultimately imposed by the Court, and to which I have already made reference.
The applicant now seeks a further period of 12 months extended leave pursuant to s 57 of the Act. That application (like the one made in 2017) falls to be considered by reference to the principles and matters set out in ss 39, 40 and 57(2) of the Act.
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’.[14]
[14]Section 38C(2)(d).
The DPP has not given notice of the present application to any of the persons identified in s 38C. She has not done so because the terms upon which the applicant seeks a further period of extended leave are the same as the terms upon which extended leave was granted in 2017. Specifically, if the application for a further period of extended leave is granted, the new grant would not significantly reduce the degree of supervision to which the applicant is subject. Thus the DPP has taken no part in the present application. Moreover, she has expressed no view in the present application about whether the application should be granted (on any and what terms) or refused.
Section 40(4) of the Act prohibits a court from making a further grant of extended leave unless the Court has obtained and considered:
(a)the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on –
(i)the person’s mental condition; and
(ii)the possible effect of the proposed further grant on the person’s behaviour; and
(b)the leave plan filed under s 57A.
In the present case, s 40(4) has been complied with by the provision of a very detailed and considered medical report from the applicant’s current treating psychiatrist, Dr James Belshaw. Dr Belshaw’s report provides a large amount of detail and analysis of the applicant’s psychiatric history and progress subsequent to his release on extended leave in 2017. In particular, after setting out and discussing relevant matters at some length, Dr Belshaw states that from a mental health perspective, the applicant has not displayed any signs of formal thought disorder, and has retained good insight into his illness. Overall, the applicant’s mental state has been stable over the past 12 months, and there have been no adverse risk incidents reported.
Dr Belshaw’s view is that the overall risk for future violence presented by the applicant is low, and that, at this stage, such risks are sufficiently mitigated by ongoing monitoring by the applicant’s treating team and those who supervise the applicant.
Following the provision of Dr Belshaw’s report, which contains the leave plan required by s 57A of the Act, the solicitors for the applicant, the Secretary to the Department of Health and Human Services and the Attorney-General submitted proposed consent orders that provided for the applicant to be granted extended leave under s 57 of the Act, commencing on 14 March 2018, up to and including 14 March 2019 on the terms upon which the applicant was granted extended leave in 2017. It was suggested in an email to the Court, that the application for extended leave could be ‘dealt with in chambers without the need for an oral hearing’.
Having now considered all of the evidence in detail, I accept that it is appropriate to grant the applicant’s application for extended leave for a further period of 12 months on the terms proposed by Dr Belshaw, and agreed to by the parties. The progress of the applicant under the extended leave regime of the past 12 months is very encouraging. That is not to say that the course proposed by the parties is risk-free. Few applications in this area can ever be said to be risk-free. But that is not the test. The question is whether, when regard is had to the principle set out in s 39 of the Act, and the matters set out in s 40 of the Act, the Court is satisfied on the evidence available that the safety of the applicant and members of the public will not be seriously endangered as a result of the applicant being allowed the further period of extended leave he seeks.
In the present case it is sufficient to say that I am so satisfied. I disagree, however, with the proposal put by the parties that this was an application which might appropriately be dealt with in chambers, and without the need for an appearance by the parties in open court. While I understand the natural desire of parties to promote efficiency and the avoidance of costs wherever possible, in my view an application of the present kind is one that is required to be dealt with in open court rather than in chambers.
The circumstances that give rise to applications of the present kind are self-evidently very serious. As the terms of the Act make plain, there are serious questions of safety and risk that need to be considered and weighed in determining whether or not to grant a period of extended leave (or further extended leave) to a person who is the subject of a custodial supervision order.
I have no doubt that all of the parties to the present application would agree with the proposition that there can never be any suggestion of these applications being dealt with other than with complete rigour. Equally, there can never be any suggestion that a consent order, in a case like the present, has been ‘rubber-stamped’ by the Court.
An application such as the present one should be, and should be seen to be, dealt with in open court. There may, of course, be details that cannot be published because of a non-publication order made under s 75 of the Act. Such orders are usually made in terms that are as limited as they can be, while still serving the purposes for which they are made (including, in most cases, the prevention of anything that may impede or interfere with a forensic patient’s treatment or recovery). That said, applications for extended leave by persons who are the subject of custodial supervision orders should (subject to any appropriate non-publication orders concerning the identification of the applicant or any other party with a legitimate interest in his or her non-identification) be dealt with in open court and with as much transparency as circumstances will permit.
For these reasons, there will be an order, commencing on 15 March 2018,[15] granting the applicant extended leave, under s 57 of the Act, and allowing him to be absent from his place of custody up to and including 14 March 2019, subject to the following conditions:
[15]While the consent order submitted by the parties referred to the commencement date of the current proposed order as being 14 March 2018, that date is covered by the order made on 14 March 2017. Moreover, it is to be remembered that s 56 of the Act only permits an order for extended leave to be made for a period ‘not exceeding 12 months’. For the avoidance of doubt, the order I will make will commence at the beginning of 15 March 2018 (immediately upon the expiration of the order made on 14 March 2017) and end at the conclusion of 14 March 2019.
(a) the applicant be supervised by the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(b) the applicant reside at a location known to, and approved by, the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(c) the applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(d) the applicant comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist of the VIFMH or his or her delegate or nominee;
(e) the applicant abstain from the abuse of alcohol and from the use of illicit drugs; and
(f) the applicant not leave the state of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate or nominee. This includes overseas travel, which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate or nominee.
- - -