Re KL (No 2) - [2024] VSC 149

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0338

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

-and-

IN THE MATTER of a further application for extended leave by KL

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2024
DATE OF ORDERS & REASONS:	27 March 2024
CASE MAY BE CITED AS:	Re KL (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 149

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CRIMINAL LAW — Further 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 custodial supervision order (“CSO”) with 25‑year nominal term, and committed to Thomas Embling Hospital — KL granted extended leave in April 2023 — Psychiatric opinion supportive of further period of extended leave — Secretary to Department of Health, Attorney‑General and KL submit further extended leave should be granted — With concurrence of parties, matter determined on the papers in chambers — Statutory test satisfied on evidence — Extended leave granted for further 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 57 & 75.

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APPEARANCES:	Counsel	Solicitors
For KL	N.A. (on the papers)	Galbally & O’Bryan
For the Secretary to the Department of Health	N.A. (on the papers)	Legal, Privacy and Integrity Branch, Department of Health
For the Attorney-General	N.A. (on the papers)	Victorian Government Solicitor’s Office

HIS HONOUR:

Overview

This is an application by KL for extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”). When granting KL’s first such application in April last year, I summarised the background to the matter in the following terms.

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 previously made, and have made again, 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 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 on KL, with a nominal term of 25 years. Thereafter, KL was housed as a forensic patient at Thomas Embling Hospital pursuant to the CSO.

On 4 April 2023,…

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 (No 2)

Details

AGLC: Re KL (No 2) [2024] VSC 149
Case: [2024] VSC 149
Decision Date: 27 March 2024

CaseChat Overview and Summary

The matter of Re KL (No 2) involved the respondent, KL, who was subject to a custodial supervision order (CSO) following a finding of not guilty by reason of mental impairment for the murder of his neighbour, GH. KL had been placed under the order with a 25-year nominal term and was committed to Thomas Embling Hospital. In April 2023, KL was granted extended leave, and this proceeding represents a further application for extended leave. The application was supported by psychiatric opinion and was made with the concurrence of the Secretary to the Department of Health, the Attorney-General, and KL. The matter was determined on the papers in chambers before the Court of Appeal.

The legal issues before the court involved the statutory test under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The court was required to determine whether the statutory criteria for extended leave were satisfied based on the evidence provided. The key consideration was whether KL continued to pose an unacceptable risk to public safety if not subject to the CSO. The psychiatric evidence and the submissions of the parties were central to the court's decision.

The court found that the statutory test was satisfied based on the evidence. It noted that the psychiatric opinion supported the granting of further extended leave, and there was no evidence to suggest that KL posed an unacceptable risk to public safety. The court accepted the conditions proposed in the leave plan and granted KL extended leave for a further 12 months. The court also made a non-publication order to protect the privacy of KL, GH, and their relatives.

The final orders of the court included the granting of extended leave to KL for a further 12 months, subject to the conditions outlined in the leave plan. Additionally, the court made a non-publication order concerning the names and addresses of KL, GH, and their relatives to ensure their privacy was protected.

Orders