Re CJC (No 2) - [2020] VSC 468

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2019 01665

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 CJC

---

JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2020 (On the papers)
DATE OF JUDGMENT:	31 July 2020
CASE MAY BE CITED AS:	Re CJC (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 468

---

CRIMINAL LAW – Mental Impairment – Application for Further Extended Leave – Whether granting the applicant further extended leave would seriously endanger the applicant or members of the public – Application supported by the Secretary to the Department of Health and Human Services and Attorney-General – Application granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	Department of Health and Human Services
For the Attorney-General	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Office of Public Prosecutions

HER HONOUR:

On 28 May 2007 CJC fatally stabbed his father whilst in a state of acute psychosis.

On 28 October 2008 CJC was found not guilty of murder by reason of mental impairment and placed on a custodial supervision order (CSO) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act). The nominal term of the CSO is 25 years, with effect from 29 May 2007.

CJC was then admitted to Thomas Embling Hospital. He remained there until 31 July 2019, when he was granted Extended Leave for a period of 12 months.[1] He now applies for a further grant of Extended Leave.
[1]Re CJC [2019] VSC 508 (Re CJC).

For the reasons that follow, the application is granted.

Manner of Determination

This matter has been determined on the papers.

All parties consented to this manner of determination in accordance with the prevailing protocol.[2] I am satisfied that it is in the interests of justice to do so.
[2]

Legal Principles

The Court may grant an application for extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result.[3] An application for extended leave may be made and granted more than once.[4]
[3]The Act, s 57(2).
[4]The Act, s 57(3).

‘Serious endangerment’ is undefined in the Act, but is a well-understood concept encompassing both the probability that a harmful event might occur and the gravity of harm in that eventuality. At its core is the probability of risk. The focus is on the likelihood of some harm materialising:

The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any parliamentary guidance on the meaning of the word, this much is clear from the term’s ordinary and literal…

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 (No 2)

Details

AGLC: Re CJC (No 2) [2020] VSC 468
Case: [2020] VSC 468
Decision Date: 31 July 2020

CaseChat Overview and Summary

The case of Re CJC (No 2) involved an application for further extended leave for the applicant, CJC, who had been deemed mentally impaired. The application was heard in the Supreme Court of Victoria. The primary concern was whether granting the applicant further extended leave would pose a serious risk to the applicant or the public. The application was backed by the Secretary to the Department of Health and Human Services and the Attorney-General, who both supported the application on the basis of various assessments and recommendations.

The legal issues before the court included the interpretation of the relevant sections of the Mental Health Act, specifically regarding the criteria for granting extended leave for a mentally impaired individual. The court had to consider the potential risk to the public, the likelihood of the applicant's rehabilitation, and the recommendations provided by the Secretary and the Attorney-General. The court also needed to balance the rights of the applicant to freedom against the need to protect public safety.

The Supreme Court found that the applicant's risk to the public was minimal and that the likelihood of rehabilitation was significant. The court placed considerable weight on the professional opinions and recommendations provided by the Secretary and the Attorney-General, who both supported the application based on detailed assessments. The court concluded that granting the application for further extended leave would not seriously endanger the applicant or members of the public and thus granted the application.

The final orders of the court were that CJC be granted further extended leave under the conditions set out by the Secretary and the Attorney-General. The court emphasised the importance of ongoing monitoring and support to ensure the safety of both the applicant and the public.

Orders