Re WL (No 2) - [2022] VSC 838

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CR 2018 0260

IN THE MATTER of a further review of a non-custodial supervision order under s 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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IN THE MATTER of WL

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2022
DATE OF JUDGMENT:	10 October 2022
DATE OF REASONS:	10 July 2023
CASE MAY BE CITED AS:	Re WL (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 838

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CRIMES MENTAL IMPAIRMENT – Further review of a non-custodial supervision order (‘NCSO’) – Unanimity between the parties that NCSO should be revoked – Application by reviewee for suppression order – NCSO revoked – Suppression order made for life of reviewee - 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 Reviewee	Mr J Chandramohan	Victoria Legal Aid
For the Secretary to the Department of Health	Mr D Bruno	Legal Services Branch, Department of Health
For the Attorney-General	Mr P Santamaria	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms L Custovic	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

This is a further review of a non-custodial supervision order (‘NCSO’) made in respect of the reviewee (‘WL’), arising pursuant to Order 2 of the NCSO confirmed by this Court on 25 October 2021.

By way of a ‘consolidated response’ filed with the Court on 6 October 2022, WL, the Attorney-General (‘the Attorney’) and the Secretary to the Department of Health (‘the Secretary’) unanimously submitted that WL’s NCSO should be revoked. WL also sought the making of a suppression order under s 75 of the Act for the lifetime of WL.

Having heard the review on 10 October 2022, I made an order revoking the NCSO. I further ordered that the suppression order previously made in this matter be continued to a time to be specified in the detailed reasons which I indicated I would provide at a later time.

These are those reasons.

Background

WL is a 48 year old woman, born in China. She married her husband in 1996. They moved to Australia in 2004 and had their son. In 2016, WL and her husband separated and then divorced.

In January 2018, WL was diagnosed with breast cancer and underwent treatment. WL’s ex-husband returned to residing at the family home to assist with caring for WL and their son. WL’s ex-husband slept in a separate bedroom.

WL developed symptoms of depression and anxiety shortly after her diagnosis with breast cancer. She also experienced suicidal ideation from February 2018.

WL received some psychiatric support leading up to the index offence, including trialling an anti-depressant (mirtazapine) and an anti-psychotic medication (quetiapine), which she had ceased taking prior to the index offence. She was also prescribed an anti-anxiety medication (diazepam) during this time. Expert evidence in the aftermath of the index…

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 (No 2)

Details

AGLC: Re WL (No 2) [2022] VSC 838
Case: [2022] VSC 838
Decision Date: 10 October 2022

CaseChat Overview and Summary

The case of Re WL (No 2) involved a non-custodial supervision order (NCSO) review under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. WL, the reviewee, applied for a suppression order after the court revoked the NCSO that had been imposed due to mental impairment and unfitness to be tried. Both parties agreed that the NCSO should be revoked, leading to the application for a suppression order. The court had to determine whether a suppression order should be granted, and if so, for how long it should last.

The legal issues revolved around the proper application and scope of a suppression order under the Act. The court had to consider whether it had the authority to make a suppression order and, if so, whether it should be for the life of the reviewee or a shorter period. The court also had to balance the need for public protection against the privacy and rights of the reviewee.

The court found that it did have the authority to make a suppression order under the Act. It noted that suppression orders are meant to protect the public while also considering the rights and dignity of the reviewee. The court decided that a suppression order should be made for the life of the reviewee, as this would provide the necessary protection to the public without unduly infringing on the reviewee's rights. The court was satisfied that this approach was consistent with the objectives of the Act and the principles of justice.

The final orders included the revocation of the NCSO and the imposition of a suppression order for the life of the reviewee. This decision provided clarity on the court's power to make suppression orders under the Act and the appropriate duration of such orders.

Orders