Re CJC (No 3) - [2021] VSC 448

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

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2021 (On the papers)
DATE OF JUDGMENT:	26 July 2021
CASE MAY BE CITED AS:	Re CJC (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 448

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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 Attorney-General – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Pavel Sraj, Victoria Legal Aid
For the Secretary to the Department of Health	Ms Catherine Luong, Department of Health
For the Attorney-General	Ms Jessica Sischy, Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Office of Public Prosecutions

HER HONOUR:

This is an application by CJC for a grant of further extended leave under s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).

Background

The applicant is a 37 year old male with a well-established diagnosis of treatment-resistant schizophrenia and a history of alcohol and cannabis use disorders. On 28 May 2007, while labouring under the acute symptoms of his illness, the applicant fatally stabbed his father to the chest.

In 2008, in this Court, CJC was found not guilty of murder by reason of mental impairment. Osborn J declared him liable to supervision under Part 5 of the Act, and imposed a custodial supervision order (‘CSO’) for a nominal term of 25 years, commencing from 29 May 2007. Pursuant to the terms of the CSO, CJC was committed to the custody of the Victorian Institute of Forensic Mental Health (‘Forensicare’) to reside at Thomas Embling Hospital (‘TEH'). A suppression order was made by his Honour on 28 October 2008 regarding the identification of CJC. .

In 2017, having progressed through the treatment and rehabilitative regime at TEH, the applicant was first granted overnight leaves to the Canterbury Road Continuing Care Unit (‘CCU’) in Camberwell.[1] In 2019, and again in 2020, he was granted periods of 12 months’ extended leave to reside full-time at the CCU. He now applies for a further grant of 12 months’ extended leave to reside at independent accommodation in the community, supplemented by extensive daily supports funded through the National Disability and Insurance Scheme (‘NDIS’).
[1]The CCU is a 20-bed, 24-hour staffed residential mental health facility in Camberwell, where the daily care of patients is overseen by a treating team including a psychiatrist, psychiatric registrar and mental health clinicians.

Parties’ positions and manner of determination

On 20 July 2021, the parties provided a ‘consolidated response’ outlining their respective positions as to the appropriate outcome of this application. The Secretary to the…

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 3)

Details

AGLC: Re CJC (No 3) [2021] VSC 448
Case: [2021] VSC 448
Decision Date: 26 July 2021

CaseChat Overview and Summary

In this case, the matter before the court was an application by the Secretary to the Department of Health and Attorney-General for an order extending the leave of a patient, CJC, who had been detained in a mental health facility. The patient had a history of serious mental illness and had been detained under the Mental Health Act. The court was required to decide whether granting the application would seriously endanger the patient or members of the public.

The legal issues centred on the criteria for granting extended leave for a patient with mental impairment. The court had to consider the risk to the patient and the public, the benefits of the leave to the patient, and the Secretary's recommendation. The primary consideration was the potential for serious harm, which required a high threshold to be met. The court also had to balance the patient's rights and needs against the safety of the public.

The court found that the application was supported by comprehensive evidence and recommendations from medical professionals and the Secretary, who had assessed the risks and benefits. The court concluded that the patient's mental health was stable enough to warrant the extension of leave, and the conditions attached to the leave would mitigate any risks to the patient and the public. The court granted the application, emphasising the importance of the Secretary's role in providing expert advice on the patient's care and the need to support the patient's rehabilitation.

The final orders included granting the application for further extended leave, subject to specific conditions designed to ensure the safety of the patient and the public. These conditions included supervision, restrictions on the patient's movements, and regular reporting requirements. The court also directed the Secretary to continue monitoring the patient's progress and to report to the court as necessary.

Orders