Re XY (No 2) - [2019] VSC 268

Not Restricted

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

CRIMINAL DIVISION

S CI 2018 0076

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

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IN THE MATTER of an application for extended leave by "XY"

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JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2019
DATE OF RULING:	30 April 2019
CASE MAY BE CITED AS:	Re XY (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 268

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CRIMINAL LAW – Mental impairment – Application for further extended leave – Applicant found not guilty of murder by reason of mental impairment – Whether safety of applicant or members of the public will not be seriously endangered if application granted – Leave plan prepared – Psychiatrist and case manager supportive of application - Application supported by Secretary to the 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 38C, 39, 40, 57.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Fitzgerald	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	Ms S Varney	Department of Health and Human Services
For the Attorney-General	Ms A Haban-Beer	Victorian Government Solicitor

HIS HONOUR:

A. Introduction

The applicant, XY[1] (“the Applicant”), is 33 years old. In 2009, at the age of 23, the Applicant stabbed and killed an elderly woman (“the Deceased”)[2] who the Applicant did not know (“the Offence”).
[1]A pseudonym is used to protect the identity of the Applicant for the reasons given by Croucher J in Re XY [2018] VSC 456, [93], the evidence on this application again being that XY’s anonymity should be preserved to foster rehabilitation and reintegration back into the community, and is therefore in the public interest: see further par 32 below.
[2]The non-disclosure of the Deceased’s name is also to protect the identity of the Applicant.

The Applicant has suffered from a major mental disorder—paranoid schizophrenia — since her teens. At the time she killed the Deceased, the Applicant was, as a result of that disorder, floridly psychotic.

In 2010, in this court, the Applicant was found not guilty of the murder of the Deceased by reason of mental impairment. Coghlan J declared the Applicant liable for supervision under Pt 5 of the Crime (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”),[3] and imposed on the Applicant a custodial supervision order, for a nominal term of 25 years.[4] Pursuant to that order, the Applicant was committed to the custody of the Victorian Institute of Forensic Mental Health (“Forensicare”); specifically, the Thomas Embling Hospital in Fairfield.[5]
[3]Re XY [2018] VSC 456, [38] (Croucher J); see also the Act, s 23(a).
[4]Ibid, [39] (Croucher J).
[5]Ibid.

On 30 April 2018, the Applicant applied to this court for extended leave pursuant to s 57(1) of the Act,[6]

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 (No 2)

Details

AGLC: Re XY (No 2) [2019] VSC 268
Case: [2019] VSC 268
Decision Date: 30 April 2019

CaseChat Overview and Summary

The case of Re XY (No 2) involved the applicant, XY, who had previously been found not guilty of murder due to mental impairment. The matter was heard in the Supreme Court of Victoria. XY sought further extended leave under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), arguing that the safety of themselves or the public would not be seriously endangered if the leave was granted. This application was based on a leave plan prepared in conjunction with a psychiatrist and a case manager, both of whom supported the application. Additionally, the Secretary to the Department of Health and Human Services and the Attorney-General both endorsed the application.

The court was required to determine whether the conditions outlined in the leave plan were sufficient to ensure the safety of XY and the public, and whether the applicant met the statutory criteria for further extended leave. The court considered the psychiatric and case management reports, the support of the relevant authorities, and the specifics of the proposed leave plan in making its decision. The court concluded that the application met the statutory requirements and that the proposed leave plan provided adequate safeguards for both XY and the public.

As a result, the court granted the application for further extended leave, subject to the conditions outlined in the leave plan. These conditions were designed to ensure that XY could be safely managed in the community while continuing to receive necessary treatment and support. The court's decision was grounded in the statutory framework and the comprehensive leave plan, which included ongoing psychiatric oversight, structured daily activities, and support from a case manager. The court's ruling reflected a careful balance between XY's right to freedom and the need to protect public safety.

Orders