Re or (No 3) - [2025] VSC 78

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2020 01973

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

- and –

IN THE MATTER of an application for extended leave by ‘OR’

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 March 2025
CASE MAY BE CITED AS:	Re OR (No 3)
MEDIUM NEUTRAL CITATION:	[2025] VSC 78

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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 – Applicant successfully completed most recent period of extended leave - Whether granting the applicant a further period of extended leave would seriously endanger the safety of the applicant or members of the public – Secretary to the Department of Health and the Attorney-General both 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 39, 40, 57, 58 and 75.

HIS HONOUR:

Introduction

By an application filed on 13 December 2024, 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 fourth grant of extended leave to the applicant.

The consolidated response of the parties provided in an email dated 14 February 2025 indicated that the application is supported by both the Secretary to the Department of Health (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’).

The parties indicated in the consolidated response that they would be guided by the Court as to whether the matter should proceed to a hearing or be dealt with on the papers. In light of the circumstances of this case, and the unanimous position of the parties, my view was that it would be appropriate for this application to be determined on the papers.

Background

OR is 49 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…

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 3)

Details

AGLC: Re or (No 3) [2025] VSC 78
Case: [2025] VSC 78
Decision Date: 6 March 2025

CaseChat Overview and Summary

In this case, the applicant, who had been found unfit to be tried on criminal charges, sought an extension of leave under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The application was heard in the Supreme Court of Queensland. The court was tasked with determining whether granting the applicant a further period of extended leave would seriously endanger the safety of the applicant or members of the public, as required by the statute.

The legal issues centred on the interpretation of the relevant provisions of the Act and the evidence presented regarding the applicant's mental health and the potential risks to the public. Both the Secretary to the Department of Health and the Attorney-General supported the grant of extended leave, providing expert opinions and reports that indicated the applicant was suitable for a further period of leave under certain conditions. The court considered the applicant's history, including the successful completion of the most recent period of extended leave, and the proposed conditions for the new leave period.

The court concluded that the evidence supported the view that the applicant was suitable for a further period of extended leave, provided specific conditions were imposed. These conditions were intended to ensure the safety of both the applicant and the public. The court granted the application and imposed conditions on the extended leave in accordance with the leave plan. The applicant was granted extended leave under section 57 of the Act, subject to the conditions outlined in the leave plan.

Orders