Re KL (No 3) - [2024] VSC 665

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 an application by KL to vary a custodial supervision order to a non‑custodial supervision order

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING & ORDERS:	17 October 2024
DATE OF WRITTEN REASONS:	30 October 2024
CASE MAY BE CITED AS:	Re KL (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 665	First revision: 8 November 2024

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CRIMINAL LAW — Application to vary a custodial supervision order (“CSO”) to a non‑custodial supervision order (“NCSO”) — 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 — KL granted extended leave in April 2023 and again in March 2024 — Psychiatric opinion supportive of variation to NCSO — Family members of GH oppose application — Secretary to Department of Health, Attorney‑General and KL submit CSO should be varied to NCSO — Statutory test satisfied on evidence — CSO varied to NCSO — Review of NCSO in 12 months — Non‑publication order as to name and address of KL and GH, and their relatives — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 26, 31, 32, 38C, 39 & 40.

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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 N. Boyd‑Caine	Victorian Government Solicitor’s Office

HIS HONOUR:

Overview

On 17 October 2024, I heard an application by KL to vary her custodial supervision order (“CSO”) to a non‑custodial supervision order (“NCSO”) pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”).

The application was supported by psychiatric opinion in a report and in viva voce evidence, and by a report from KL’s case manager. This evidence was unchallenged.

In addition, I received reports from members of GH’s family detailing the impact of her death on them, and opposing the application.

By counsel, KL, the Secretary to the Department of Health (“the Secretary”) and the Attorney‑General all submitted that, based on the evidence and the statutory tests to be applied, the CSO should be varied to an NCSO.

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 varied to an NCSO. I also ordered that the matter be brought back for review within 12 months, and that the names and addresses of KL and GH, and their relatives, not be published.

The reasons that follow — which should be read together with…

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 3)

Details

AGLC: Re KL (No 3) [2024] VSC 665
Case: [2024] VSC 665
Decision Date: 17 October 2024

CaseChat Overview and Summary

In the matter of Re KL (No 3), the Supreme Court of Victoria was asked to consider an application to vary a custodial supervision order (CSO) to a non-custodial supervision order (NCSO) for KL, who in 2016, while in a delusional state, stabbed and killed their neighbour, GH. In 2017, KL was found not guilty of murder due to mental impairment and was placed on a CSO with a 25-year nominal term, committed to Thomas Embling Hospital. The court was asked to consider an application to vary the CSO to an NCSO, with KL having been granted extended leave in April 2023 and again in March 2024. Psychiatric opinion supported the variation to an NCSO, however the family members of GH opposed the application. The Secretary to the Department of Health, the Attorney-General and KL submitted that the statutory test was satisfied on the evidence and the CSO should be varied to an NCSO.

The court considered the statutory test under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to determine if the variation of the CSO to an NCSO was appropriate. The court noted that the statutory test under section 38C of the Act required the court to be satisfied that it is appropriate to vary the CSO to an NCSO on the basis that KL did not pose a significant risk to public safety. The court found that the evidence presented, including the psychiatric opinion, supported the variation of the CSO to an NCSO, and that the statutory test was satisfied. The court also considered the need to balance the rights of KL with the need to protect the public, and determined that the variation was appropriate in this case. The court further ordered that the NCSO be reviewed in 12 months and that a non-publication order be made as to the name and address of KL and GH, and their relatives.

The Supreme Court of Victoria varied the CSO to an NCSO for KL, with a review of the NCSO to be conducted in 12 months. The court made a non-publication order as to the name and address of KL and GH, and their relatives, to protect their privacy and safety. The court's decision was based on the evidence presented and the statutory test under section 38C of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), which was satisfied on the basis that KL did not pose a significant risk to public safety.

Orders