Re KL
[2023] VSC 182
•11 April 2023
| 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)
-and-
IN THE MATTER of a review of a custodial supervision order imposed on KL
-and-
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 expert evidence, were supportive of extended leave. In addition, I received heartfelt reports from GH’s family. Some opposed extended leave, while others doubted whether such an order would provide any guarantee of community safety.
Those appearing for the Secretary to the Department of Health, the Attorney-General and KL all submitted that, based on the evidence and the statutory tests to be applied, the CSO should be confirmed and the application for extended leave should be granted.
At the conclusion of the hearing, I indicated that I accepted both the psychiatric evidence and the submissions of the parties. Accordingly, I ordered that the CSO be confirmed, and that KL be granted extended leave for 12 months, on the conditions set out in the leave plan. I also ordered that the names and addresses of KL, GH, and their relatives, not be published.
These are my reasons for making those orders.
Background
Personal history
KL was 53 at the time of the stabbing, and is now 60. She was born in Europe but migrated to Australia with her family as a child. She is married and has an adult daughter.
KL lived in her family home in suburban Melbourne. GH moved into a house in the same street in about 2006, and began running a business from her home. GH’s clients often parked their cars near KL’s house, which agitated her no end. Over the years, she developed a fixation with her neighbour.
In 2012, GH obtained a 12-month intervention order against KL following ongoing verbal abuse. After the expiry of the intervention order, KL again became verbally abusive.
KL kills GH in grips of delusional disorder[2]
[2]The following summary of events is taken largely from the reasons of Jane Dixon J at the consent mental impairment hearing, delivered on 18 August 2017, as well as the summary of proceedings and facts (and annexures) filed .
KL had no documented history of psychiatric illness prior to the killing. On that fateful morning, however, her undiagnosed delusional disorder manifested itself in a most dramatic and destructive manner.
And so it was that, at about 5:55 a.m. on 16 April 2016, KL was out walking her dogs near her home. GH was also out for a walk. The two women crossed paths by chance. KL apprehended that GH struck her in the face. In response, she stabbed GH multiple times with a knife retrieved from her handbag. Tragically, GH died where she fell.
Her body was discovered at about 7:15 a.m. A knife blade and handle were found on the ground nearby. A trail of blood led to KL’s home.
During the month or so leading up to the stabbing, KL kept a knife in her handbag as a result of persecutory delusions and fears for her safety. She feared a man had threatened to shoot her dogs. Thus, her decision to carry a knife seems not to have been related to her delusions about GH. Nevertheless, while her attack was spontaneous, it was motivated by her long-standing hostility towards, and preoccupation with, GH.
KL headed straight home after the stabbing, taking her dogs with her. She showered, changed, washed her clothes, dressed some cuts on her hand, and cleaned blood droplets from the floor. She called her husband and asked him to come home, before driving herself to a local police station. She surrendered herself into custody at around 7:30 a.m., saying, “I have hurt someone today.” It appears that she did not appreciate at that time that she had actually killed GH.
During a record of interview with police, KL said that, when GH made contact with her face, she became enraged and stabbed her once before returning home. But, as we have seen, the truth was that she had stabbed her repeatedly. KL’s demeanour was unusual, and her delusional belief system became apparent the further the interview continued. She spoke of her perceived problems over parking. She said she was unable to get over her dislike of GH. She said she had “been numb for a long time because I feel I’ve been followed everywhere”, and “haven’t felt anything for a long time”. She described repeatedly being “approached” and “intimidated”, and that strangers had repeated things that had happened to her previously, and all had “this stupid smirk”.
KL was charged with murder and remanded in custody.
Trial
Subsequently, KL was assessed by two forensic psychiatrists. Each found that she was experiencing delusions concerning GH at the time of the stabbing, along with other psychotic symptoms. Her paranoid belief system focussed on the perceived malign influence of GH, and incorporated strangers she believed to be in league with her. This state of mind had developed over an extended period as a result of a then-undiagnosed delusional disorder, which was persecutory in type. The psychiatrists concluded that, because of the active psychotic symptoms resulting from her delusional disorder, KL was unable to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. Accordingly, in their view, the defence of mental impairment was available to her.[3]
[3]See s 20(1)(b) of the Act.
While a third forensic psychiatrist agreed in part, she did not think that the defence of mental impairment was available. It was on this basis that, initially, at the trial before Jane Dixon J in August 2017, mental impairment was contested by the Director of Public Prosecutions (“the Director”). However, following cross-examination of the third psychiatrist at a pre-trial hearing, the Director no longer contested that defence.
In those circumstances, in accordance with the procedure outlined in s 21(4) of the Act, the matter resolved into a consent mental impairment hearing. At that hearing, on 18 August 2017, the judge found KL not guilty by reason of mental impairment.
On 13 December 2017, having received a certificate of available services, her Honour placed KL on a CSO, and committed her to custody at Thomas Embling pursuant to that order.
Progress at Thomas Embling Hospital
KL had been transferred from prison to Thomas Embling two weeks earlier, upon a bed becoming available. On 30 November 2017, she was admitted to Barossa, the acute women’s unit of the hospital. In 2018, she progressed to Daintree, a rehabilitation unit. In July 2020, she was transferred to Jardine, another rehabilitation unit, where she was residing at the time of the present hearing.
Previous reviews of CSO
The CSO has been reviewed twice since it was imposed — first by Taylor J on 3 December 2019, and then by Jane Dixon J two years later. On each occasion, the CSO was confirmed and a later date for a further review was fixed.
At the second of those reviews, which was heard by Jane Dixon J on 2 December 2021, her Honour noted several matters about KL’s progress, including the following:
a) KL was compliant with her self-administered medication regimen. She was able to cease Olanzapine (an antipsychotic) in 2019, and she was still prescribed Mirtazapine (an antidepressant).
b) She had no incidents of interpersonal violence or other incidents of significant concern during her admission to Thomas Embling.
c) KL was assessed as having an avoidant style of relating, in that she was interpersonally avoidant and actively detached from her feelings.
d) She had remained free of affective and psychotic symptoms.
e) As of 2021, KL had unescorted day leave from Thomas Embling.
f) However, in February 2021, in the context of applying for overnight leave to stay in the family home with her husband, KL unexpectedly announced that she had decided to end their marriage. After some discussion, she and her husband decided to continue with their relationship.
g) Finally, KL wanted to engage in family therapy sessions. Subsequently, she experienced some difficulties in the therapeutic relationship with her treating psychologist when discussing her marriage. This was characterised as “mild paranoia” that did not rise to the level of delusional intensity.
As well as confirming the CSO, her Honour directed, pursuant to s 32(5) of the Act, that the matter be brought back to the Court for a further review on or before 1 December 2022.
Application for extended leave foreshadowed
In October 2022, the judge vacated the listing of the next further review and directed that it be listed on a date to be fixed. The context for that decision was that the Court was advised that Forensicare intended to support an application by KL for extended leave early in 2023. Accordingly, all parties consented to this course to allow the further review and the application for extended leave to be heard at the same time.
On 21 December 2022, KL duly filed an application for extended leave.
As I have said, the further review and the application for extended leave both came on before me on 4 April 2023.
Applicable legislation
Further review of CSO
The further review is governed by s 32(1) of the Act. Relevantly, that provision requires that, on a further review of a CSO directed under s 32(5), the Court must (a) confirm the CSO, (b) vary the place of custody or (c), subject to s 32, vary the CSO to a non-custodial supervision order (“NCSO”).
Given that KL has not previously completed a period of at least 12 months of extended leave, this Court must not vary her CSO to an NCSO.[4]
Application for extended leave
[4]See s 32(3) of the Act.
Under the Act, a person subject to a CSO is described as a forensic patient.[5] Extended leave is leave for a forensic patient to be absent from the place of custody (in this case, Thomas Embling) for a period not exceeding 12 months, and subject to conditions, if any, specified by the Court.[6]
[5]See the definition of “forensic patient” in s 3 of the Act.
[6]See s 56(1) of the Act.
Section 57(2) of the Act provides that extended leave may be granted if the Court is “satisfied on the evidence available that the safety of the forensic patient … or the safety of members of the public will not be seriously endangered as a result of [extended leave being allowed]”.
Section 57A(a) requires that, if an application is made for extended leave in a case like the present, a leave plan must be prepared and filed with the Court by the authorised psychiatrist. As we shall see, a leave plan has been filed in this case.
Statutory principles
In considering both the further review and the application for extended leave, by operation of s 39(1) of the Act, this Court “must apply the principle that restrictions on a person’s freedom and personal autonomy must be kept to a minimum consistent with community safety”.
The Court must also have regard to the matters set out in s 40(1), which are as follows:
(a) the nature of the person’s mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger [herself], another person, or other people generally because of her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
Section 40(2) provides that the Court cannot significantly reduce the degree of supervision to which a person is subject, unless (relevantly) it:
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on —
(i)the person’s mental condition; and
(ii)the possible effect of the proposed order on the person’s behaviour; and
(ab) in the case of a person who is subject to a supervision order [such as a CSO], has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the court under [s] 41(3); and
(c) is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under [s] 42; and
(da) in the case of an application for extended leave—has considered the leave plan filed under [s] 57A;
(e) has obtained and considered any other reports the court considers necessary.
In NOM v DPP & Ors, the Court of Appeal explained the considerations in ss 39 and 40 in this way:[7]
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge “must apply” the principle in s 39 or “have regard to” the factors in s 40.
[7]NOM v DPP & Ors (2012) 38 VR 618 at 633[47] (per Redlich and Harper JJA and Curtain AJA).
Notification of family members and victims
Section 38C of the Act requires the Director to give notice of the further review and the application for extended leave to family members of the person subject to the CSO and to victims of the offence with which the person was charged.[8] An affidavit of Marianne Doyle of the Office of Public Prosecutions sets out the steps taken on behalf of the Director in respect of those obligations. Ms Doyle also filed written submissions.[9]
[8]The Director did not seek to appear at the hearing, but would have done so if required by the Court or requested by one of the parties. Neither the Court nor the parties requested an appearance by or on behalf of the Director.
[9]Ms Doyle’s affidavit was sworn 30 March 2023, and the submissions were signed on the same date.
Five reports made pursuant to s 42 of the Act were received from members of GH’s family, including her mother and her daughter, and were placed before the Court.[10] One of those reports (from GH’s aunt) was read in open court.
[10]Despite letters sent by Express Post to family of GH and KL pursuant to s 38C of the Act, the Director did not receive responses from all of those persons. Hence only the five reports placed before the Court.
GH was aged 45 at the time of her death. She lived with her daughter, who was then aged 20 or 21.
In their reports, GH’s family spoke of the incalculable grief and bitterness they continue to suffer at the loss of their loved one. Understandably, at least some said that they do not think that KL should be released on extended leave.
GH’s daughter feels that it is unfair and unjust to be reminded about things each time there is a review of the order. She says that it is no longer about her mum’s death but the health of her killer.
GH’s mother questioned whether there is any guarantee that, if granted extended leave, KL would not do something similar to another person. She also wondered whether the appropriate resources and professionals would be available adequately to monitor KL’s progress on extended leave.
The reports are thoughtful, powerfully expressed, and profoundly moving. I have had regard to the views expressed in those reports.
However, given the expert evidence I am about to summarise, which is uncontested, and the statutory tests and principles of law that must be applied, I consider that I am compelled to grant the application for extended leave notwithstanding the views expressed by GH’s family.
Psychiatric reports
Two reports
Two expert reports have been filed for the review and in support of the application for extended leave.[11] First, there is the report (dated 6 March 2023) of Dr Alana Rowick, a consultant psychiatrist at Forensicare on the Jardine unit of Thomas Embling. Second, there is the report (dated 9 March 2023) of Dr James Belshaw, a consultant forensic psychiatrist in the Community Treatment and Transition Team (“CTTT”) of Forensicare.
[11]Also before the Court is a report (dated 7 November 2022) of Dr Leah George, a psychiatry registrar at Forensicare. That report was supervised and counter-signed by Dr Elena Bhattacharya, a staff specialist in forensic psychiatry at Forensicare. This report was filed pursuant to the requirement in s 41(3) of the Act to file yearly reports on those subject to supervision orders. I have had regard to the contents of that report, as well as each of the other yearly psychiatric reports received by the Court in 2019, 2020 and 2021.
Dr Rowick
Dr Rowick has been KL’s treating psychiatrist on the Jardine unit since 6 February 2023. Her report is based on two consultations with KL, and KL’s medical records.
Dr Rowick noted KL’s diagnoses of delusional disorder and depression after the stabbing, and of avoidant personality disorder in 2021.
She noted that KL’s mental state has remained stable, with no recurrence of depressive or psychotic symptoms.
KL is prescribed Mirtazapine (an antidepressant), which she has self-administered for several years without difficulty.
Dr Rowick noted that there was concern in January 2022 in respect of KL showing some paranoia about her flatmate at the unit. This resulted her treating team deciding to separate the two of them.
KL has engaged in weekly psychology sessions since 2019, initially with a Thomas Embling psychologist, and from August 2022 in the community with a psychologist at a personality disorder service. In Dr Rowick’s view, KL adjusted well to a recent change in her psychologist, and reports that the sessions are beneficial.
Dr Rowick noted that KL’s husband and her daughter are her main social supports. She is close to both of them, and reports that their relationship is now more intimate and honest as a result of improved communication. Since their marital issues in 2021, KL has engaged in family therapy sessions with her husband, and her daughter as well, which she reported were helpful. She also completed a short course of family psychoeducation through Thomas Embling.
KL has had unescorted day leave to the new family home for several years, where she now proposes to live on extended leave. After initially putting her application for overnight leave on hold in 2021, KL commenced overnight leave to her family home one night a week in February 2022, and progressed to three nights a week in July. There have been no incidents, and KL reported feeling more comfortable in the home since staying there overnight.
Currently, KL volunteers at a Salvation Army store once a week and at a community garden twice a month. She also visits her elderly mother regularly in rural Victoria. She enjoys going for long walks.
KL sees a general practitioner at a local medical clinic.
Dr Rowick had regard to the fact that KL was assessed to determine her risk of future violence using the HCR-20 (version 3). This is a structured professional judgment tool covering three domains of risk: historical (past), clinical (present), and risk management (future). In terms of historical (static) risk factors, KL has a history of violence and other antisocial behaviour (relating to the intervention order), psychiatric illness, personality disorder, and relationship issues. As for clinical (present) risk factors, KL has a partial risk factor for affective instability, as she can be irritable and abrupt with others at times. As to her future risk management, KL has partial risk factors in personal support, as her social network mostly consists of her husband and daughter, and her coping strategies for stress remain limited. Further, her personality structure means that she tends to avoid discussing problems with others.
Dr Rowick noted that, since 2021, KL has continued to engage in regular psychology sessions. This treatment has improved her insight into her illness and violent behaviour, and the need for ongoing treatment.
Dr Rowick opined that KL’s risks of engaging in violent behaviour in the medium term, and her imminent risk of violence, are low, and that such risk would be the same if she were granted extended leave under the care of the CTTT.
In light of KL’s progress and the high level of support that will remain in place, Dr Rowick supported KL’s application for extended leave.
As to her future progress, Dr Rowick offered the following opinion:
[KL] would benefit from ongoing encouragement to build up her linkages in the community and to increase her social network and supports. Developing further strategies to cope with stress, through ongoing psychology, would also be beneficial. Addressing these aspects will assist in further reducing [KL’s] dynamic risk factors for violence.
Dr Belshaw
Dr Belshaw has been KL’s allocated psychiatrist in the CTTT since April 2022.
He concurred with previous diagnoses of delusional disorder and depressive disorder, both of which, he notes, have been in sustained remission since 2018.
Dr Belshaw reported that KL’s engagement with the CTTT has been excellent. He observed that KL will be able to continue with psychology sessions at the personality disorder service on extended leave, and that she has provided consent for the CTTT to liaise with that service and her general practitioner.
Dr Belshaw undertook a home assessment and found that the family home is appropriate for extended leave. KL’s husband met with Dr Belshaw, and, in his view, demonstrated a reasonable understanding of KL’s mental health issues and early warning signs, and committed to ongoing communication with the CTTT. He is also now retired.
On examination on 20 February 2023, KL was able to identify her early warning signs. She reported full compliance with her current medication regime and recognised the benefit of psychology input to her mental health stability.
Dr Belshaw opined that, if KL were to be granted extended leave and continue with her current management plans, her risk for future violence would be low. In particular, he said that, if KL is granted extended leave:
there will likely be no significant change to the level of mental health service provision given that the [CTTT] has already established a positive working relationship with her, she had already successfully utilised three nights of overnight leave away from the protective structure of the Jardine Unit for a sustained period, and the [CTTT] will increase their contact with her to weekly for approximately three months following discharge from [Thomas Embling]. In addition, the relationship with her [personality disorder service] psychologist will continue and her GP will remain the same.
Furthermore, her accommodation will be stable, she has reasonable personal supports available via her husband and daughter and in recent years she had demonstrated a more adaptive ability to manage stress.
As both of KL’s mental illnesses appear to be in sustained remission, and she has been able to develop good insight and appears committed to her ongoing recovery needs, Dr Belshaw supported KL’s application for extended leave.
He proposed that the grant of extended leave be on the conditions contained in the leave plan annexed to his report. Those conditions were that KL:
a) be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate (“the authorised psychiatrist”);
b) reside at a location known and approved by the authorised psychiatrist;
c) abide by the lawful directions of the authorised psychiatrist;
d) comply with treatment and testing and attend appointments as directed by the authorised psychiatrist;
e) abstain from the abuse of alcohol and the use of illicit drugs; and
f) not leave the State of Victoria without the written permission of the authorised psychiatrist (this includes overseas travel, which must be approved by the authorised psychiatrist).
No viva voce evidence required
Neither Mr Galbally, who appeared for KL, nor Ms Wilson, who appeared for the Secretary, nor Mr Karitzis, who appeared for the Attorney-General, required either Dr Rowick or Dr Belshaw to give viva voce evidence. All were content to rely on the contents of the reports.
While both psychiatrists were available to give viva voce evidence, in circumstances where the parties were agreed about their opinions, and in circumstances where I could see no reason to doubt or clarify any aspect of their evidence, I too was content to rely on their reports.
Submissions
Helpfully, all of those appearing filed detailed written submissions ahead of the hearing. In those submissions, and in the oral submissions made at the hearing, each party urged that, in all the circumstances, the reports of the psychiatrists should persuade me that the CSO should be confirmed and that the application for extended leave should be granted on the conditions contained in the leave plan.
In particular, on behalf of the Secretary, Ms Wilson pointed out that KL has progressed through Thomas Embling with no incidents since her admission, is compliant with medication, and her risk of future violence has been found to be low. Counsel added that KL will continue to receive support from the CTTT within Forensicare, and be under the supervision of the authorised psychiatrist of the VIFMH (or their delegate). In her submission, these conditions provide significant support, and an assurance that the public and KL will not be seriously endangered as a result of an order for extended leave.
On behalf of the Attorney, Mr Karitzis submitted that the following matters support a grant of extended leave. First, KL’s mental state has remained consistently stable with no evidence of psychotic symptoms for several years. Second, since July 2022, she has been utilising three nights of overnight leave to her family home with no reported issues. Third, KL was assessed recently as posing a low risk of engaging in further violent behaviour within imminently and in the medium term. Fourth, Dr Belshaw concluded that her risk of future violence will be low on extended leave if she continues with her current management plans. Fifth, KL’s treating team considers that her risk can be managed by adequate supervision by the CTTT and engagement with weekly therapy with her community psychologist, which she has been doing for some time. Sixth, KL will reside in the family home, with her husband, who has demonstrated a reasonable understanding of her mental health issues and early warning signs of relapse. Finally, she has a number of community linkages in her local community.
Mr Galbally’s submissions echoed those made by Ms Wilson and Mr Karitzis. In summary, he submitted that this Court could have confidence that neither KL nor the public will be seriously endangered as a result of granting her extended leave.
Conclusions
I accept that, given the nature of the incident which gave rise to the CSO, the gravity of the harm in contemplation in the present case is such that a comparatively modest risk of the occurrence of such harm could still lead to a refusal of the application for extended leave.
That said, I also accept the opinions expressed in the reports of Dr Rowick and Dr Belshaw. In my judgment, those opinions place that risk at a level that satisfies the test for a grant of extended leave.
As I have said previously,[12] it is, of course, for the Court, not the psychiatrists, to make findings of fact and to determine an application for extended leave. But judges are not psychiatrists. Yet much of what is in issue in cases of this nature turns on matters of psychiatry. The Court’s findings of fact, and its determination, are necessarily very much informed by the opinions of the relevant psychiatrists when those opinions are well reasoned and convincing, come from experienced, well-qualified and responsible professionals who have been involved in the treatment or assessment of a forensic patient, and are not contradicted by other evidence.
[12]See, e.g., Re HWJ [2015] VSC 170 at [124].
In the present case, the opinions expressed by Dr Rowick and Dr Belshaw fall into that category. Moreover, I am persuaded that those opinions are sound and that I should act on them.
The ultimate question is whether, on the evidence available, the safety of KL and members of the public will not be seriously endangered as a result of her being allowed extended leave. Having considered the evidence before me, the matters set out in ss 39 and 40, the proposed conditions in the leave plan, and the submissions of counsel, I am satisfied, to the requisite standard, that the safety of KL and members of the public will not be seriously endangered as a result of a grant of extended leave. Accordingly, extended leave should be granted.
It also follows that, on the further review, the CSO must otherwise be confirmed, as a grant of extended leave is contingent upon the existence of a CSO.
Partial non-publication
On the question of non-publication, Ms Wilson pointed out that, on her instructions, the clinicians would be supportive of an order that avoided identification of KL or her address. This is because the stigma involved in publication of those details can be “countertherapeutic and [cause] an interruption to otherwise good progress”. Counsel also submitted that, because identification of GH and her family might tend to identify KL, the order should apply to them as well. Both Mr Karitzis and Mr Galbally adopted those submissions.
In those circumstances, given the test in s 75 of the Act, I am satisfied that it is in the public interest to fashion an order to achieve those aims, while still allowing these reasons to be published in order to accommodate the principle of open justice.
Orders
It was for the foregoing reasons that I made the following orders at the conclusion of the hearing on 4 April 2023:
1) Pursuant to s 32(1) of the Act, the custodial supervision order imposed on [KL] on 13 December 2017 (and confirmed on 3 December 2019, and again on 2 December 2021) is confirmed.
2) Pursuant to s 57(1) of the Act, [KL] is granted extended leave — i.e., leave to be absent from her place of custody, Thomas Embling Hospital — for a period of 12 months, commencing 4 April 2023, subject to the following conditions:
a)that [KL] be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“VIFMH”) or their delegate;
b)that [KL] reside at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate;
c)that [KL] abide by the lawful directions of the authorised psychiatrist of VIFMH or their nominee;
d)that [KL] comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist of VIFMH or their nominee;
e)that [KL] abstain from the abuse of alcohol and the use of illicit drugs;
f)that [KL] not leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH or their delegate (this includes overseas travel, which must be approved by the authorised psychiatrist of VIFMH or their delegate).
3) Pursuant to s 75 of the Act, publication of the following is prohibited:
a)the names and addresses, or former addresses, of [KL], the deceased and their relatives; and
b)any information which might identify the names and addresses, or former addresses, of [KL], [GH] and their relatives, except insofar as such information is contained in the written reasons for judgment.
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