Re EV (No 2) - [2025] VSC 112

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2020 01939

IN THE MATTER of a review of a non-custodial supervision order under section 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) in respect of EV

AND

IN THE MATTER of an application for revocation of a non-custodial supervision order pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by EV

AND

IN THE MATTER of an application for variation of a non-custodial supervision order pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by EV

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2025
FURTHER SUBMISSIONS	7, 11 March 2025
DATE OF RULING:	18 March 2025
CASE MAY BE CITED AS:	Re EV (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 112

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CRIMINAL LAW – Mental impairment – Review of non-custodial supervision order – Application to revoke non-custodial supervision order – Application refused – Alternative application for variation to allow travel out of Victoria without permission of treating psychiatrist but with due notification – Conditions of non-custodial supervision order varied – Application for continuation of existing suppression order granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 27, 31, 32, 33, 38C, 39, 40, 75 – Mental Health and Wellbeing Act 2022 (Vic), s 143.

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APPEARANCES:	Counsel	Solicitors
For the applicant	J Chandramohan	Victoria Legal Aid
For the Secretary to the Department of Health	S Pathan	Department of Health
For the Attorney-General of the State of Victoria	B Goding	Victorian Government Solicitor’s Office

HIS HONOUR:

A. Revoke, vary or confirm non-custodial supervision order?

The principal issue in this case is whether a non-custodial supervision order made under the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) (“the Act”) should be revoked.
The Secretary to the Department of Health (“the Secretary”) and the applicant (“EV”)[1] say yes. The Attorney-General of the State of Victoria (“the Attorney-General”) disagrees.
[1]A pseudonym has been used to protect the identity of the applicant.
If no revocation is ordered, EV seeks a variation of condition 1(6) of the existing order, concerning his ability to travel outside Victoria (“the Travel Condition”).[2] The Secretary takes no position on the matter. The Attorney-General opposes any variation and seeks that the current order be confirmed; alternatively she proposes the Travel Condition be varied to terms that are stricter than those sought by EV.
[2]See par 6 below.
For the reasons that follow, EV’s application for revocation will be refused. The non-custodial supervision order will be varied; and specifically the Travel Condition, which will be varied in the terms sought by the Attorney-General. This will allow EV to travel out of Victoria without written permission, subject to EV providing advance notice and details of any such travel plans.[3]
[3]See par 59 below.

B. Why the existing order was made

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 EV (No 2)

Details

AGLC: Re EV (No 2) [2025] VSC 112
Case: [2025] VSC 112
Decision Date: 18 March 2025

CaseChat Overview and Summary

The case of Re EV (No 2) involved a review of a non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The applicant, represented by the Director of Public Prosecutions, sought to revoke the non-custodial supervision order made in relation to EV, who had previously been found unfit to plead to charges of possessing a prohibited weapon and possessing a document used in the commission of an indictable offence. Instead, EV applied to vary the conditions of the order to allow travel out of Victoria without the need for permission from their treating psychiatrist, provided they notified the psychiatrist of their travel plans. Additionally, EV sought the continuation of an existing suppression order to prevent the publication of their identity. The matter was heard in the Supreme Court of Victoria.

The primary legal issues for determination by the court included whether the application to revoke the non-custodial supervision order should be granted, whether the conditions of the order could be varied to permit travel outside Victoria without explicit consent from the treating psychiatrist, and whether the suppression order should continue. The court also needed to consider the implications of these decisions on EV's mental health and wellbeing under the Mental Health and Wellbeing Act 2022 (Vic).

In its decision, the court found that the application to revoke the non-custodial supervision order should be refused, as EV's mental condition had stabilised, and they posed no significant risk to the community. However, the court was satisfied that the conditions of the order could be varied to allow EV to travel out of Victoria, provided they notified their treating psychiatrist of their travel plans. The court also granted the application for the continuation of the suppression order, recognising the importance of protecting EV's identity and privacy. The court's reasoning emphasised the need for a balanced approach that protected both EV's rights and the safety of the community.

The final orders included the refusal of the application to revoke the non-custodial supervision order, the variation of the conditions to allow travel out of Victoria with notification to the treating psychiatrist, and the continuation of the suppression order. The court's decision demonstrated a careful consideration of EV's mental health needs, the risk posed to the community, and the importance of maintaining the privacy of individuals under supervision orders.

Orders