Re WL - [2021] VSC 689

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CR 2018 0260

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

and

IN THE MATTER of an application by WL under section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order and a review of a non-custodial supervision order under section 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2021
DATE OF JUDGMENT:	25 October 2021
CASE MAY BE CITED AS:	Re WL
MEDIUM NEUTRAL CITATION:	[2021] VSC 689

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CRIMES MENTAL IMPAIRMENT – Review of a non-custodial supervision order (‘NCSO’) – Application for revocation of NCSO – Generally good progress by applicant on NCSO – Some instability in residence and presence of residual illness in first year of NCSO – Supervising psychiatrist supportive of revocation – Expert evidence that risk posed by applicant low whether NCSO in place or not – Views of experts formed over limited period of time applicant on NCSO – Application supported by Secretary to the Department of Health – Application opposed by Attorney-General - Principle of parsimony – NCSO confirmed – Further review to occur within 12 months – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 33, 39 and 40.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Bevan	Victoria Legal Aid
For the Secretary to the Department of Health	Ms E Frawley	Legal Services Branch, Department of Health
For the Attorney-General	Mr L McAuliffe	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms L Custovic	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant (‘WL’) was made the subject of a non-custodial supervision order (‘NCSO’) on 22 August 2019.[1] She now applies for revocation of the NCSO. This application is brought alongside a review of the NCSO pursuant to s 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
[1]DPP v Brook (a pseudonym) [2021] VSC 566 (Hollingworth J) (‘Brook’).

BT’s application to revoke the NCSO is supported by the Secretary to the Department of Health (‘the Secretary’). The position of the Attorney-General (‘the Attorney’) is that the NCSO ought to be confirmed and brought back for further review in six to twelve months’ time.

The Director of Public Prosecutions (‘the Director’) was excused from attendance at the hearing, having discharged her obligation to notify the victims of the index offence and family members of WL of the matters set out in s 38C of the Act. I note that the Court has not received any reports from these individuals pursuant to s 42 of the Act.

Background

The applicant is a 48 year old woman, born in China. She married her husband in 1996. They moved to Australia in 2004 and had…

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 WL

Details

AGLC: Re WL [2021] VSC 689
Case: [2021] VSC 689
Decision Date: 25 October 2021

CaseChat Overview and Summary

In the matter of Re WL, the applicant sought a review of a non-custodial supervision order (NCSO) made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The application was to revoke the NCSO, which had been imposed following the applicant’s conviction for certain criminal offences. The dispute centred on the appropriateness of continuing the NCSO given the applicant's progress and the views of various experts and officials.

The court was required to determine whether the NCSO should be revoked based on the applicant’s progress and the risk they posed. This involved weighing the applicant's progress on the NCSO against instances of instability and residual mental illness during the initial period of the order. Furthermore, the court had to consider the opinions of the supervising psychiatrist, who supported the revocation, against expert evidence suggesting that the risk posed by the applicant was low regardless of the NCSO. The Secretary to the Department of Health supported the application, while the Attorney-General opposed it.

After considering the evidence and arguments, the court found that while there had been some instability and residual illness during the first year of the NCSO, the applicant had shown generally good progress since then. The court placed significant weight on the principle of parsimony, which favours the least restrictive alternative in managing the risks associated with the applicant's mental impairment. Consequently, the court decided to confirm the NCSO but mandated a further review within 12 months.

The final orders confirmed the non-custodial supervision order in place for the applicant, with a requirement for a further review of the order within 12 months to reassess the applicant’s progress and risk profile.

Orders