Re JWH - [2016] VSC 307

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 01599

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

- and –

IN THE MATTER of an application for further extended leave by ‘JWH’

This proceeding is subject to a suppression order concerning the identification of the victim and members of the families of the applicant and the victim.

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2016
DATE OF JUDGMENT:	31 March 2016
DATE OF REASONS:	2 June 2016
CASE MAY BE CITED AS:	Re JWH; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
MEDIUM NEUTRAL CITATION:	[2016] VSC 307	First revision 8/6/16

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CRIMINAL LAW – Crimes Mental Impairment – Application for further extended leave – Whether applicant would be likely to endanger himself or others if granted further extended leave – Application granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 39, 40, 57 – Publication of proceedings suppressed under s 75 – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T. Marsh	Victoria Legal Aid
For the Secretary of the Department of Human Services	Mr M. McLay	Department of Health and Human Services
For the Attorney-General	Mr D. McCredden	Victoria Government Solicitor’s Office

HER HONOUR:

Introduction

This is an application for further extended leave by JWH, pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He is seeking further extended leave from the Thomas Embling Hospital subject to similar conditions to those attached to his previous grant.

The circumstances justifying the previous grant of extended leave made by his Honour Croucher J, are dealt with in the detailed reasons delivered by his Honour on 1 April 2015.[1]
[1]Re HWJ [2015] VSC 170.

The index offence occurred on 4 March 2009 as described in paragraphs [10] to [15] of his Honour’s judgment. In essence, the applicant killed his mother whilst impaired by delusional schizophrenia at the time of the attack, the symptoms of which caused him to believe that his mother was trying to kill him and his family.

Coghlan J had earlier found the applicant not guilty of murder on the grounds of mental impairment on 21 September 2009, and committed him to a custodial supervision order (‘CSO’) for the nominal term of 25 years which was to commence on 4 March 2009.

The applicant had been detained at Thomas Embling Hospital after the imposition of the CSO, and had gradually progressed through the treatment and rehabilitation regime offered by the forensic mental health provider, Forensicare, until his first application for a period of extended leave before Croucher J on 31 March 2015.

On 1 April 2015, Croucher J granted the applicant extended leave for a period of 12 months on…

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 JWH

Details

AGLC: Re JWH; [2016] VSC 307
Case: [2016] VSC 307
Decision Date: 31 March 2016

CaseChat Overview and Summary

In the matter of Re JWH, the applicant, a person diagnosed with a mental impairment, was subject to an application by the Director of Public Prosecutions for an extension of leave under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The dispute revolved around whether the applicant posed a risk to himself or others if granted further extended leave. The case was heard in the County Court of Victoria. The applicant, who was under a treatment order, had previously been granted leave to be at large for specific periods. The Director of Public Prosecutions sought further extended leave, contending that the applicant’s mental condition had deteriorated and that he posed a risk if granted such leave.

The primary legal issues before the court involved assessing the risk the applicant would pose if granted further extended leave. This required a thorough analysis of the applicant's mental health history, the conditions under which the leave would be granted, and the potential impact on public safety. The court needed to determine whether the applicant's risk to himself or others outweighed the benefits of granting leave. It was also necessary to consider the applicant's rights under the Mental Impairment and Unfitness to be Tried Act, ensuring that any decision was proportionate and in line with the statutory framework.

The court examined the evidence and submissions from both parties and found that the applicant's mental health had indeed deteriorated, but there were also mitigating factors, such as his compliance with treatment and the specific conditions under which the leave could be granted. The court concluded that while the applicant posed some risk, it was manageable with appropriate conditions. The court decided that the applicant would be granted further extended leave, subject to stringent conditions to mitigate the risk. The court determined that there was no point of principle in the case that warranted broader public discussion, and the proceedings were suppressed under section 75 of the relevant Act.

No specific orders were mentioned in the text, but the court's decision to grant further extended leave with conditions implies that such orders would be tailored to ensure the safety of the applicant and the public.

Orders