Re GB - [2020] VSC 4 | CaseChat AU

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2018 02536

IN THE MATTER of an application pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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IN THE MATTER of an application for extended leave by “GB”

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 January 2020
DATE OF JUDGMENT:	15 January 2020
CASE MAY BE CITED AS:	Re GB; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
MEDIUM NEUTRAL CITATION:	[2020] VSC 4

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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 further extended leave with conditions would seriously endanger the safety of the applicant or members of the public – No evidence to indicate applicant an increased risk since previous application – Low likelihood of seriously endangering the safety of himself or members of the public – Further extended leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Bevan	Victoria Legal Aid
For the Secretary of the Department of Health and Human Services	Ms S J Varney	Department of Health and Human Services
For the Attorney-General	Ms J P Kretzenbacher	Victorian Government Solicitor’s Office

HIS HONOUR:

This is an application by ‘GB’ for a grant of further extended leave, pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘MI Act’). I have concluded that the applicant should be granted further extended leave, subject to conditions, for a period of 12 months. These are my reasons.

By way of background, GB had previously been found not guilty of murder by reason of mental impairment. He suffered from, and continues to suffer from, schizophrenia. The details of the index offence are adequately summarised in the reasons of Macaulay J delivered on 17 January 2019.[1] It is unnecessary, for the purposes of this application, to repeat them here.
[1]Re GB [2019] VSC 4 (‘Reasons’).

On 27 July 2012, GB was placed on a custodial supervision order, with a nominal term of 25 years’ supervision being fixed (ordered to commence from 1 February 2011).

On 26 July 2018, GB made an application for extended leave. That application was heard by Macaulay J and extended leave, subject to conditions, was granted for a period of 12 months. Those conditions included orders that GB be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate; that GB abide by the lawful directions of the Authorised Psychiatrist, or their delegate; that GB comply with treatment, testing and the appointment schedule directed by the Authorised Psychiatrist, or their delegate; and that GB abstain from the abuse of alcohol and the use of illicit drugs.

During the past 12 months, GB has been residing in the community in supported accommodation at the Austin…

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 GB

Details

AGLC: Re GB; [2020] VSC 4
Case: [2020] VSC 4
Decision Date: 15 January 2020

CaseChat Overview and Summary

The applicant, GB, applied to the Court for extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, seeking further leave to be at large. The application was made in the context of GB's mental health issues, and the primary concern was whether granting such leave would seriously endanger the safety of the applicant or members of the public. The court was required to weigh the risks associated with extending GB's leave against the benefits of continued community integration and rehabilitation.

The legal issues before the court involved the interpretation of section 57 of the Act, focusing on the criteria for granting extended leave and the burden of proof required to deny such leave. The court had to determine whether there was sufficient evidence to demonstrate that GB posed an increased risk to himself or the public if granted further leave. The applicant argued that there was no evidence to suggest an increased risk since the last application, and the likelihood of seriously endangering the safety of himself or others was low.

The court considered the evidence presented, including psychiatric assessments and the applicant's history of compliance with leave conditions. It found that there was no evidence to support a conclusion that GB's risk profile had changed since the last application. Given the low likelihood of seriously endangering the safety of himself or the public, the court concluded that the criteria for denying extended leave were not met. Therefore, the court granted GB further extended leave, subject to conditions aimed at ensuring continued safety and rehabilitation.

No specific final orders were detailed in the summary, but the decision granted the applicant extended leave with conditions.

Orders