Re CJC - [2019] VSC 508

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2019 01665

IN THE MATTER of an application pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
- and –
IN THE MATTER of an application for extended leave by ‘CJC’

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2019
DATE OF JUDGMENT:	31 July 2019
CASE MAY BE CITED AS:	Re CJC: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
MEDIUM NEUTRAL CITATION:	[2019] VSC 508

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CRIMINAL LAW – Mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or a member of the public – Two psychiatrists and a senior social worker supportive of application – Application supported by Secretary to Department of Health and Human Services and Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Secretary of the Department of Health and Human Services	Ms E Frawley	Department of Health and Human Services
For the Attorney-General	Ms M Pekevska	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms L Wilkinson	Office of Public Prosecutions

HER HONOUR:

On 28 May 2007 the applicant killed his father by stabbing him in the chest with a knife. The applicant, a schizophrenic, was severely psychotic at the time.

Following his presentation to this court on a single count of murder, the applicant was, on 27 October 2008, found unfit to stand trial. On 28 October 2008, Osborn J directed a verdict of not guilty by reason of mental impairment be entered in relation to the count of murder. On 31 October 2008, his Honour declared the applicant liable to supervision under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) and placed him on a custodial supervision order (‘CSO’) for a nominal term of 25 years, with a commencement date of 29 May 2007.[1]
[1]R v CJC [2008] VSC 488R.

Pursuant to the CSO, the applicant was committed to the custody of the Victorian Institute of Forensic Medical Health (‘Forensicare’) and admitted to the Thomas Embling Hospital (‘TEH’). He is deemed to be in the custody of the Secretary to the Department of Health and Human Services (‘Secretary’).[2]
[2]The Act, s 26(8).

Application

Having remained at TEH as a forensic patient since the CSO was made, the applicant now applies for a grant of extended leave[3] to be absent from the TEH.[4] A leave plan proposed by Dr James Belshaw, the applicant’s treating forensic psychiatrist, has been filed.[5] Under that plan, the applicant would, if successful in this application, reside at the Community Care Unit (‘CCU’) in Camberwell for…

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 CJC

Details

AGLC: Re CJC: an application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2019] VSC 508
Case: [2019] VSC 508
Decision Date: 31 July 2019

CaseChat Overview and Summary

The case of Re CJC involved the application for extended leave by the applicant, who is a person with mental impairment, under section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The dispute centred around whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or a member of the public. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court needed to address was the balance between the applicant's right to liberty and the potential risk to public safety. The court had to consider the medical evidence provided by two psychiatrists and a senior social worker, who were all supportive of the application. Additionally, the application was backed by the Secretary to the Department of Health and Human Services and the Attorney-General. The court needed to determine if the proposed conditions for extended leave could mitigate any potential risks.

The court concluded that granting the application for extended leave with the proposed conditions would not seriously endanger the safety of the applicant or a member of the public. The comprehensive leave plan, supported by medical professionals and relevant authorities, provided sufficient assurances. Consequently, the court granted the application and imposed conditions on the extended leave in accordance with the leave plan.

The court's final order was the granting of extended leave to the applicant, CJC, with specific conditions attached as outlined in the leave plan. This decision was based on the evidence and recommendations presented, ensuring that the applicant's rights were balanced with the need to protect public safety.

Orders