Re JWH (No 3) - [2020] VSC 455

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 01599

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

and

IN THE MATTER of an Application by JWH under section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order

---

JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2020
DATE OF JUDGMENT:	13 February 2020
DATE OF REASONS:	27 July 2020
CASE MAY BE CITED AS:	Re JWH (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 455

---

CRIMINAL LAW – Mental impairment – Application for revocation of non-custodial supervision order – Whether applicant would be likely to endanger himself or others if order revoked – Unanimity between experts – Non-custodial supervision order revoked – Suppression order made – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – ss 31, 33, 39, 40.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Dhanji	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	Ms E Frawley	Department of Health and Human Services
For the Attorney-General	Ms J Buxton	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms R Marques	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

On 4 March 2009, at the age of 20, JWH (‘the applicant’) killed his mother while operating under a delusional belief that she was planning to kill him and other members of his family.

On 7 September 2009, a consent mental impairment hearing was conducted in this Court before Coghlan J. At the conclusion of that hearing, his Honour directed that a verdict of not guilty of murder by reason of mental impairment be recorded. On 21 September 2009, Coghlan J declared the applicant liable to supervision under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) and imposed a custodial supervision order (‘CSO’) with a nominal term of 25 years, commencing on 4 March 2009.

The applicant was admitted to Thomas Embling Hospital (‘TEH’) and remained there until he was granted extended leave by Croucher J on 1 April 2015.[1] Further extended leave was granted by Jane Dixon J on 31 March 2016.[2]
[1]Re HWJ [2015] VSC 170.
[2]Re JWH [2016] VSC 307.

On 29 March 2017, Hollingworth J ordered the variation of the applicant’s CSO to a non-custodial supervision order (‘NCSO’).[3]
[3]Re JWH (No 2) [2017] VSC 144.

Having spent close to five years living in the community on a full-time basis since his first grant of extended leave, by application filed 12 November 2019, the applicant made an application pursuant to s 31 of the Act for revocation of his NCSO.

The application came on for hearing before me on 13 February 2020. It was supported by both the Secretary to the Department of Health and Human Services (‘the Secretary’) and the Attorney-General of…

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 (No 3)

Details

AGLC: Re JWH (No 3) [2020] VSC 455
Case: [2020] VSC 455
Decision Date: 13 February 2020

CaseChat Overview and Summary

The applicant, JWH, applied to the Supreme Court of Victoria for the revocation of a non-custodial supervision order. The dispute centred on whether JWH, who has a diagnosed mental impairment, would be likely to endanger himself or others if the order was revoked. This application was made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The court had to determine if JWH's mental condition posed a risk to himself or others, and if revoking the supervision order would result in such danger.

The primary legal issue was whether there was sufficient evidence to justify revoking the non-custodial supervision order. The court considered the opinions of expert witnesses, including psychiatrists, and weighed the risk of harm to JWH or others against his rights and interests. The court also had to assess whether there were adequate measures in place to manage any potential risk if the order was revoked. The unanimity between expert opinions was a critical factor in the court's decision-making process.

The Supreme Court found that there was a significant risk that JWH would endanger himself or others if the non-custodial supervision order was revoked. The unanimous opinion of the experts, along with other evidence presented, convinced the court that the risk was substantial enough to warrant revocation. Consequently, the court revoked the non-custodial supervision order and made a suppression order under the Act to protect JWH's identity and the confidentiality of sensitive information. The court's decision was grounded in the need to balance JWH's rights with the imperative to protect public safety.

Orders