Re GB - [2019] 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 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

- and –

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

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2018, 17 & 18 December 2018
DATE OF JUDGMENT:	17 January 2019
CASE MAY BE CITED AS:	Re GB; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
MEDIUM NEUTRAL CITATION:	[2019] VSC 4 (Second Revision (13 February 2019): paras [19], [20])

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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 members of the public – NOM v DPP & Ors [2012] VSCA 198 considered, Hammond v Secretary to the Department of Health and Human Services & Ors [2018] VSCA 356 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Taylor	Victorian Legal Aid
For the Secretary of the Department of Health and Human Services	Mr D Bruno	Department of Health and Human Services
For the Director of Public Prosecutions	Mr D Brown	Office of Public Prosecutions
For the Attorney-General	Ms D Costaras	Victorian Government Solicitor’s Office

HIS HONOUR:

On the morning of Tuesday 1 February 2011, ‘GB’,[1] the applicant, left his home wearing a backpack containing a knife and a mash hammer. He habitually carried these items with him when he left his home as he was afraid of being attacked by members of the Victoria Police, motorcycle gangs and the mafia.
[1]A pseudonym, adopted due to the suppression order made under s 75 of the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (‘the Act’): see [97] below.

At approximately 10.15 am he passed the house of his niece in a Victorian regional town (‘the town’). He decided to stop by her house to get a glass of water. Whilst he was inside his niece’s home, he saw her computer and asked if he could use it. He wanted to use the computer to record some of his beliefs about the activities of Victoria Police, motorcycle gangs and the mafia in the town. His niece did not allow him to use her computer. At that point, to use his own word, he “snapped”. He removed the mash hammer from his backpack and attacked his niece with the hammer. He struck her multiple times to the head. She fell to the floor. She sustained significant head injuries as a result of the attack and remained on the floor seriously injured. After this, he grabbed a knife and stabbed her multiple times to the chest, back and legs.

At 12.06 pm in the afternoon he called 000 telling the operator…

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 [2019] VSC 4
Case: [2019] VSC 4
Decision Date: 17 January 2019

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of Re GB was heard, involving an application for extended leave by an individual diagnosed with a mental impairment, who is also subject to a Forensic Order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The crux of the dispute centred on whether granting the applicant extended leave under the conditions proposed would pose a serious risk to the safety of the applicant themselves or to members of the public.

The court was tasked with determining the appropriate balance between the applicant's rights to liberty and the imperative to protect public safety. This required careful consideration of the relevant statutory provisions and the case law, particularly the principles articulated in NOM v DPP & Ors and Hammond v Secretary to the Department of Health and Human Services & Ors. The court examined the evidence presented regarding the applicant's mental state, the proposed conditions of leave, and the potential risks associated with granting leave.

The Supreme Court, applying the legal principles from the cited cases, concluded that the applicant's risk of reoffending was sufficiently high to warrant stringent conditions for extended leave. The court found that the proposed conditions were adequate to mitigate the risk to public safety while still allowing for the applicant’s rehabilitation and eventual reintegration into society. As a result, the application for extended leave was granted subject to the conditions outlined in the judgment.

Orders