Re or (No 2) - [2024] VSC 117

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECI 2020 01973

IN THE MATTER of an application under section 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

- and –

IN THE MATTER of an application for further extended leave by OR

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2024
DATE OF JUDGMENT:	15 March 2024
CASE MAY BE CITED AS:	Re OR (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 117

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CRIMINAL LAW – Crimes mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public – Legal representatives of OR, the Secretary to the Department of Health and the Attorney-General all support grant of extended leave – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38C, 39, 40, 42, and 57, 57A and 58.

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APPEARANCES:	Counsel	Solicitors
For the Reviewee	N/A	Victoria Legal Aid
For the Secretary to the Department of Health	N/A	Department of Health
For the Attorney-General	N/A	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

By an application filed on 30 November 2023, the applicant, OR, applies for a further grant of extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). Were I to grant this application, it would be the third grant of extended leave to the applicant.

The application is supported by both the Secretary to the Department of Health (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’). It is also recommended by the applicant’s treating team. As is the usual course, the Director of Public Prosecutions (‘the Director’) takes no position with respect to the application.

All parties consented to this application being determined on the papers.

Background

OR is 48 years old. He has a longstanding diagnosis of schizophrenia or schizoaffective disorder and cannabis use disorder.

On 23 February 2006, while psychotic, OR confronted his father and fatally stabbed him with a large kitchen knife. The incident was witnessed by OR’s sister, who bravely intervened and suffered a stab wound to her left leg as a result, and OR’s mother, who managed to retrieve and hide the knife from OR.

The matter proceeded before the Court as a consent mental impairment hearing and a verdict of not guilty because of mental impairment was directed. On 26 February 2007, the Court declared OR liable to supervision and imposed a custodial supervision order (‘CSO’) with a nominal term of 25 years, commencing 23 February 2006.

Pursuant to the conditions of the CSO, OR was admitted to Thomas Embling Hospital (‘TEH’) as a forensic patient. His overt psychotic symptoms persisted until 2011, and in 2014 he…

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 or (No 2)

Details

AGLC: Re or (No 2) [2024] VSC 117
Case: [2024] VSC 117
Decision Date: 15 March 2024

CaseChat Overview and Summary

In the matter of Re OR (No 2), the subject of the dispute was an application for extended leave from a secure mental health facility. The application was brought under section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by OR, a person who had been found not guilty by reason of mental impairment for a serious criminal offence. The application was heard in the Supreme Court of Queensland.

The primary legal issue the court had to decide was whether granting OR extended leave on the proposed conditions would seriously endanger the safety of the applicant or members of the public. The court had to consider the opinions of OR's legal representatives, the Secretary to the Department of Health, and the Attorney-General, all of whom supported the grant of extended leave. The court also needed to examine the conditions proposed in the leave plan and determine if they were sufficient to mitigate any risks to public safety.

The court found that the proposed leave plan, which included conditions such as regular reporting to a supervising officer and restrictions on contact with certain individuals, provided adequate safeguards to ensure that the safety of the applicant and the public would not be seriously endangered. The court noted the support of all relevant parties and the structured approach of the leave plan in reaching its decision. As a result, the application for extended leave was granted, with the conditions outlined in the leave plan being imposed on the extended leave.

The court's decision was made under the authority of sections 38C, 39, 40, 42, 57, 57A, and 58 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The final orders included granting OR extended leave from the secure mental health facility on the conditions set out in the leave plan, with regular reviews to be conducted to ensure the conditions continued to be appropriate.

Orders