Re XY - [2018] VSC 456

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0109
S CI 2018 00076

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
- and -
IN THE MATTER of an application for extended leave by “XY”

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2018
DATE OF DECISION:	30 April 2018
DATE OF PUBLICATION OF REASONS:	17 August 2018
CASE MAY BE CITED AS:	Re XY
MEDIUM NEUTRAL CITATION:	[2018] VSC 456

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CRIMINAL LAW – Application for extended leave – Applicant, in 2009, at age 20 and when psychiatrically unwell, killed elderly woman – Applicant found not guilty of murder because of mental impairment – Whether applicant or members of the public will not be seriously endangered if applicant granted extended leave – Two psychiatrists supportive of application – Application supported by Secretary to Department of Health and Human Services and Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 26, 28, 38C, 39, 40, 41, 47, 57, 57A, 75 & 76A.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Wilkinson	Office of Public Prosecutions
For the Applicant	Ms J. Taylor	Victoria Legal Aid
For the Secretary to Department of Health and Human Services	Ms E. Frawley	Department of Health and Human Services
For the Attorney-General	Ms A. Haban-Beer	Victorian Government Solicitor

HIS HONOUR:

Overview

On 30 April 2018, I heard an application by “XY” for extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”).

In 2009, on a public street in a country town in Victoria, XY, who was then aged in her early-20s, stabbed “DC” with a knife to the neck and elsewhere. DC, a vision-impaired widow in her mid-60s who just happened to be walking her two small dogs in the area at the time, was a complete stranger to XY. After the stabbing, XY fled to her home nearby. While help was at hand promptly, sadly, DC could not be revived. She died then and there as a result of the wounds to her neck.

At the time of the killing, XY was in the grips of a psychotic episode. She was labouring under the delusional belief that she was under threat and that killing someone would lead to a cessation of her hallucinatory torment. XY’s psychosis was caused by paranoid schizophrenia, from which she had suffered since adolescence.

In 2010, at a ‘consent mental impairment hearing’ in this Court before Coghlan J, XY was found not guilty of murder by reason of mental impairment and placed on a custodial supervision order.

Pursuant to that order, and for about eight years, XY received treatment at Thomas Embling Hospital. The evidence is to the effect that her psychiatric illness…

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 XY

Details

AGLC: Re XY [2018] VSC 456
Case: [2018] VSC 456
Decision Date: 30 April 2018

CaseChat Overview and Summary

The case of Re XY involved the applicant who, at the age of 20 and while suffering from a psychiatric impairment, killed an elderly woman in 2009. The applicant was found not guilty of murder due to mental impairment. The Supreme Court of Victoria was tasked with deciding whether the applicant, if granted extended leave, would pose a serious risk to themselves or the public. The court also had to consider the views of two psychiatrists who supported the application, as well as the endorsement from the Secretary to the Department of Health and Human Services and the Attorney-General.

The primary legal issue before the court was whether the applicant would be a serious danger to themselves or others if extended leave was granted. The court examined the evidence and submissions provided by the two psychiatrists, both of whom opined that the applicant posed no serious risk to the public or themselves. Additionally, the court took into account the support of the Secretary to the Department of Health and Human Services and the Attorney-General. The court found that the applicant's risk of reoffending was minimal and that the proposed leave plan provided adequate safeguards to ensure public safety.

After considering the evidence, the court concluded that the applicant would not pose a serious danger to the public or themselves if extended leave was granted. The court accepted the psychiatrists' opinions and the support of the Secretary and the Attorney-General. The court imposed specific conditions on the extended leave in accordance with the leave plan, aimed at ensuring the applicant's continued treatment and monitoring. The application for extended leave was subsequently granted.

The court's final orders included the granting of extended leave subject to the conditions outlined in the leave plan, which provided for ongoing psychiatric treatment, regular reporting, and other safeguards to ensure public safety. The court also directed that the applicant's leave be reviewed periodically to assess any changes in the risk profile. This decision highlighted the court's balanced approach to ensuring public safety while also considering the applicant's rights and treatment needs.

Orders