Re KL - [2023] VSC 182

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0132; S CR 2022 0338

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

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IN THE MATTER of a review of a custodial supervision order imposed on KL

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IN THE MATTER of an application for extended leave by KL

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2023
DATE OF ORDERS:	4 April 2023
DATE OF REASONS:	11 April 2023
CASE MAY BE CITED AS:	Re KL
MEDIUM NEUTRAL CITATION:	[2023] VSC 182

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CRIMINAL LAW — Review of custodial supervision order (“CSO”) — Application for extended leave — In 2016, KL, in delusional state, stabbed and killed neighbour, GH — In 2017, at consent mental impairment hearing, KL found not guilty of murder because of mental impairment — KL placed on CSO with 25-year nominal term, and committed to Thomas Embling Hospital — Psychiatric opinions supportive of extended leave — GH’s family opposed to leave — Secretary to Department of Health, Attorney-General and KL submit extended leave should be granted — Statutory tests satisfied on evidence — CSO confirmed — Extended leave granted for 12 months, on conditions in leave plan — Non‑publication order as to name and address of KL, GH and their relatives — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 21, 32, 39, 40, 57 & 75.

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APPEARANCES:	Counsel	Solicitors
For KL	Mr P. Galbally	Galbally & O’Bryan
For the Secretary to the Department of Health	Ms M. Wilson	Legal, Privacy and Integrity Branch, Department of Health
For the Attorney-General	Mr J. Karitzis	Victorian Government Solicitor’s Office

HIS HONOUR:

Overview

Early on an autumn morning in 2016, after a chance meeting on a walk near her home, KL killed her neighbour GH in the street by stabbing her multiple times to the chest and neck.[1] At the time, KL was in the grips of an undiagnosed delusional disorder. Later that morning, she handed herself in at her local police station, and was charged with murder.
[1]These names have been anonymised pursuant to the order I made for non-publication of information tending to disclose the identities and addresses of KL, GH, and members of their families. See below.

In 2017, a consent mental impairment hearing was conducted in this Court pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”). The judge directed a verdict of not guilty of murder because of mental impairment. As a result, a custodial supervision order (“CSO”) was imposed, with a nominal term of 25 years. Since then, KL has been a forensic patient at Thomas Embling Hospital (“Thomas Embling”) pursuant to the CSO.

On 4 April 2023, a third review of the CSO and an application for extended leave came on for hearing before me. Psychiatrists opined about KL’s progress on the CSO. Those opinions, which were unchallenged by any other…

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 KL

Details

AGLC: Re KL [2023] VSC 182
Case: [2023] VSC 182
Decision Date: 11 April 2023

CaseChat Overview and Summary

The case of Re KL concerned the review of a custodial supervision order imposed on KL following a verdict of not guilty by reason of mental impairment for the murder of their neighbour, GH. The Court of Appeal was asked to decide whether KL should be granted extended leave under the relevant statutory framework. This involved weighing the psychiatric evidence supporting the leave against the objections of GH’s family.

The legal issues before the court included whether the statutory criteria for granting extended leave under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) were satisfied. The court needed to consider the psychiatric evidence, the views of the responsible authorities, and the objections raised by GH’s family. The court also needed to balance the rights of KL with the public interest and safety.

The court found that the statutory tests for granting extended leave were met, based on the psychiatric evidence presented. The court determined that the conditions in the leave plan were sufficient to ensure the safety of the public and the wellbeing of KL. The objections of GH’s family were noted, but the court emphasised the importance of KL’s rehabilitation and the support provided by the psychiatric professionals. The court confirmed the custodial supervision order and granted extended leave for 12 months, subject to the conditions outlined in the leave plan. The court also made a non-publication order to protect the identities of KL, GH, and their relatives.

Orders