Re RD - [2023] VSC 189

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2019 03665

IN THE MATTER of a further major review of a non-custodial supervision order pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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IN THE MATTER of an application by RD to revoke a non-custodial supervision order under s 33(1) of the Act

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IN THE MATTER of an application by RD for a suppression order under s 75 of the Act

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2022
DATE OF JUDGMENT:	18 November 2022
DATE OF REASONS:	14 April 2023
CASE MAY BE CITED AS:	Re RD
MEDIUM NEUTRAL CITATION:	[2023] VSC 189

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CRIMES MENTAL IMPAIRMENT – Further review of a supervision order – Application for revocation of a non-custodial supervision order (‘NCSO’) – Applicant subject to a supervision order for over 30 years – Secretary to the Department of Health and the Attorney-General in support of revocation – NCSO revoked – Suppression order extended for life of applicant – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 33, 38, 39, 40, 41, 42, 75.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Delaney	Victoria Legal Aid
For the Secretary to the Department of Health	Ms Yusur Al-Azzawi	Legal Services Branch, Department of Health
For the Attorney-General	Ms S Wallace	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms L Wilkinson	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

This was a concurrent major review of a non-custodial supervision order (‘NCSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) and an application to revoke the order by RD.

On 11 November 2022 a consolidated response[1] was filed which indicated that all parties supported the application for revocation of the NCSO. The Director of Public Prosecutions (‘the Director’) was not included in the consolidated response, having discharged her obligation under s 38C of the Act to give notice of the present review and revocation application to the family members of RD and each victim of the index offence. I was satisfied on the evidence set out in the affidavit of Louise Wilkinson that no reports pursuant to s 42 were provided.[2] The Director did not take a position on the application, as is her usual approach in these proceedings.
[1]It has become the practice of this Court to require a ‘consolidated response’ from the parties giving notice of their positions.
[2]Affidavit of Louise Wilkinson, 8 November 2022 [8].

The Attorney-General and RD consented to the matter being determined on the papers. The Secretary to the Department of Health (‘the Secretary’), however, considered that a hearing was appropriate as the matter concerned a revocation. As it turned out, the matter came on for hearing before me on 18 November 2022.

With respect to RD’s application for a non-publication order, the Secretary and Attorney-General did not take…

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 RD

Details

AGLC: Re RD [2023] VSC 189
Case: [2023] VSC 189
Decision Date: 18 November 2022

CaseChat Overview and Summary

The case of Re RD was heard in the Supreme Court of Queensland and involves a man, RD, who has been under a non-custodial supervision order since 1989 for crimes committed while he was mentally impaired. The primary dispute was whether RD's non-custodial supervision order should be revoked, given his history of criminal behaviour and mental health issues. The Secretary to the Department of Health and the Attorney-General supported the revocation of the order.

The legal issues before the court included whether RD continued to pose a risk to the community and whether the non-custodial supervision order was still necessary for his mental health and safety. The court considered the statutory provisions under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, including sections 33, 38, 39, 40, 41, 42, and 75, which pertain to the making, variation, and revocation of supervision orders.

The Supreme Court found that RD's history of non-compliance with the supervision order and his continued risk to the community justified the revocation of the non-custodial supervision order. The court also extended a suppression order for the duration of RD's life, prohibiting the publication of his identity and certain details of his criminal history to protect the community and RD himself. The court's decision was based on the evidence presented regarding RD's ongoing risk and the need for continued restrictions to ensure public safety.

Orders