Re HM - [2025] VSC 56

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0251

IN THE MATTER of an application for extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

- and –

IN THE MATTER of HM of Thomas Embling Hospital

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2025
DATE OF JUDGMENT:	21 February 2025
CASE MAY BE CITED AS:	Re HM
MEDIUM NEUTRAL CITATION:	[2025] VSC 56

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CRIMINAL LAW – Crimes 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 – Recent relapse – Treating team unanimously supportive of application – Application supported by Secretary to the Department of Health but opposed by Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan – Suppression order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38C, 39, 40, 42, 57, and 75.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Bridie Kelly	Victoria Legal Aid
For the Secretary to the Department of Health	Ms Julia Greenham	Department of Health
For the Attorney-General	Ms Jasmine Still	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

HM, the applicant, is subject to a custodial supervision order (‘CSO’) made by John Dixon J on 1 June 2016, pursuant to s 26(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He now makes his first application for a grant of extended leave under s 57 of the Act.

The application is supported by the Secretary to the Department of Health (‘the Secretary’), but opposed by the Attorney-General (‘the Attorney’).

The application proceeded before me on 18 February 2025. Affidavit material before the Court satisfied me that the Director of Public Prosecutions had complied with his obligations under ss 38C and E of the Act to give notice and provide information to family members and victims under the Act. Consistent with the usual practice, the presence of the Director was not required during the hearing.

Background

In 2014, the applicant killed a man who was a fellow resident of a boarding house in an eastern suburb of Melbourne. He killed the man by stabbing him to the torso. At the same time as this attack, the applicant attacked another person, who sustained injury. At the time of these events, the applicant was acting under the influence of a psychotic illness. He was charged with murder and recklessly causing injury. The matter proceeded as a consent mental impairment hearing before Lasry J in this Court. On 25 November 2015, Lasry J directed that a verdict of not guilty because of mental impairment be recorded in respect of both charges on the indictment. In due course, on 1 June 2016,…

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 HM

Details

AGLC: Re HM [2025] VSC 56
Case: [2025] VSC 56
Decision Date: 21 February 2025

CaseChat Overview and Summary

The matter before the court was an application by the applicant, a person found not guilty by reason of mental impairment, for extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The applicant had been granted leave previously, which was subject to certain conditions. The Attorney-General opposed the application on the basis that granting the leave would seriously endanger the safety of the applicant or members of the public, while the Secretary to the Department of Health supported the application. The applicant had recently experienced a relapse in his mental condition, but his treating team was unanimously supportive of the application.

The legal issue before the court was whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public. The court considered the relevant statutory provisions, including sections 38C, 39, 40, 42, 57, and 75 of the Act. The court also considered the evidence of the applicant’s treating team, who were unanimous in their support of the application, as well as the evidence of the Secretary to the Department of Health, who supported the application. The Attorney-General opposed the application on the basis that it would seriously endanger the safety of the applicant or members of the public. The court found that the applicant’s recent relapse did not necessarily mean that he was a danger to himself or others, and that the treating team’s evidence was persuasive. The court also noted that the Secretary to the Department of Health supported the application, and that the conditions proposed in the leave plan were sufficient to manage any risk.

The court granted the applicant’s application for extended leave, subject to the conditions proposed in the leave plan. The court also imposed a suppression order pursuant to section 75 of the Act. The court found that the applicant’s recent relapse did not necessarily mean that he was a danger to himself or others, and that the treating team’s evidence was persuasive. The court also noted that the Secretary to the Department of Health supported the application, and that the conditions proposed in the leave plan were sufficient to manage any risk. The court concluded that granting the applicant extended leave on the proposed conditions would not seriously endanger the safety of the applicant or members of the public.

Orders