Re HWJ - [2015] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2009 1466

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic)
- and -
IN THE MATTER of an application for extended leave by HWJ

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JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2015
DATE OF DECISION:	1 April 2015
CASE MAY BE CITED AS:	Re HWJ
MEDIUM NEUTRAL CITATION:	[2015] VSC 170

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CRIMINAL LAW – Application for extended leave – Applicant, in 2009, at age 20 and when psychiatrically unwell, killed mother – Applicant found not guilty of murder because of mental impairment – Whether applicant or members of the public will not be seriously endangered if applicant granted extended leave – Two psychiatrists supportive of application – Whether application premature – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic), ss 20, 21, 23, 24, 26, 28, 38C, 39, 40, 41, 47, 57, 57A, 75 & 76A.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Wilkinson	Office of Public Prosecutions
For the Applicant	Mr T. Marsh	Victoria Legal Aid
For the Secretary to Department of Health and Human Services	Ms K. Evans	Department of Health and Human Services
For the Attorney-General	Ms N. Blok	Victorian Government Solicitor

HIS HONOUR:

Introduction

On 31 March 2015, I heard an application by HWJ[1] (“the applicant”) for extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) (“the Act”).
[1]On 1 April 2015, I ordered, pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic), that the publication of the following is prohibited: (a) the names and addresses, or former addresses, of the applicant, the deceased and their relatives; and (b) any information which might identify the names and addresses, or former addresses, of the applicant, the deceased and their relatives, except insofar as such information is contained in the written reasons for judgment. These are those written reasons for judgment. Thus, the applicant, the deceased and their family members’ names have been anonymized in this judgment, or described only by reference to their familial relationships to each other, and their addresses have been described elliptically. In my view, based on the evidence I heard during the application, it would be preferable for the applicant’s rehabilitation and reintegration back into the community, and therefore in the public interest, that his and his family’s names and addresses not be published.

On 4 March 2009, the applicant, who was then aged 20 and in the grips of a psychotic episode, bashed his mother to death. In particular, the applicant had a delusional belief, resulting from his paranoid schizophrenic illness, that his mother was trying to kill him and his family.

In September 2009, at a consent mental impairment hearing, the applicant was…

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 HWJ

Details

AGLC: Re HWJ [2015] VSC 170
Case: [2015] VSC 170
Decision Date: 1 April 2015

CaseChat Overview and Summary

The applicant in this case was convicted of manslaughter in 2010, following the killing of their mother in 2009 when they were 20 years old and suffering from a psychiatric condition. The applicant was found not guilty of murder by reason of mental impairment, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The applicant has applied for extended leave, seeking release on a conditional basis. The Crown opposed the application on the basis that it was premature and that there was a risk to the public if the applicant was released.

The court was required to determine whether the applicant, or members of the public, would be seriously endangered if the applicant were granted extended leave. The court also needed to consider the applicant's current mental state and whether it was appropriate to grant the application at this time. Two psychiatrists provided evidence in support of the application, indicating that the applicant's mental condition had improved and that there was no risk of reoffending if the conditions of the leave plan were met.

The court found that the applicant's mental condition had stabilised, and that there was no evidence to suggest that the applicant would be a danger to themselves or others if the conditions of the leave plan were met. The court noted the support of the two psychiatrists and concluded that the application was not premature. The court granted the application for extended leave and imposed conditions in accordance with the leave plan. The court considered that the benefits of release outweighed any potential risks to the community.

The court made orders granting the applicant extended leave, subject to the conditions outlined in the leave plan. The court also ordered that the applicant must comply with a supervision order and a treatment plan. The applicant was also required to report to a designated officer on a regular basis. The orders were made under the relevant provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Orders