Re XY (No 4) - [2022] VSC 21

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2018 00076

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

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IN THE MATTER of an application for revocation of a non-custodial supervision order under section 31 of the Act by XY

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JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2021
DATE OF DECISION:	23 November 2021
DATE OF PUBLICATION OF REASONS:	1 February 2022
CASE MAY BE CITED AS:	Re XY (No 4)
MEDIUM NEUTRAL CITATION:	[2022] VSC 21

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CRIMINAL LAW – Mental impairment – Application for revocation of non-custodial supervision order – Custodial supervision order varied to non-custodial supervision order in 2020 – Principles to be applied – Relocation of applicant to Queensland – Non-custodial supervision order revoked – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 31, 38C, 38E, 39, 40, 42.

SUPPRESSION ORDER – Continuation of non-publication order – Long-term order – Principles to be applied – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 75 – Open Courts Act 2013 (Vic), s 12.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms O Ridley	Victoria Legal Aid
For the Secretary to the Department of Health	Ms S Varney	Department of Health and Human Services
For the Attorney-General	Ms J Buxton	Victorian Government Solicitor’s Office

HIS HONOUR:

A.Introduction

The applicant, XY[1] (“the Applicant”), is a 35 year old woman. In 2009 the Applicant, then aged 23, attacked and killed a 65 year old woman (“the Deceased”).[2] The Deceased was not known to the Applicant.[3]
[1]Consistent with a suppression order previously made which remains in place, the name of the Applicant and the Deceased, as well as any family members, will be anonymised in these reasons. See pars 41-48 below.
[2]Re XY [2018] VSC 456, [2] (Croucher J).
[3]Ibid.

The Applicant has suffered from paranoid schizophrenia, a major mental disorder, since she was a teenager. At the time she killed the Deceased, the Applicant was floridly psychotic as a result of this disorder. In 2010, the Applicant was found not guilty of the murder of the Deceased by reason of mental impairment.[4]
[4]Ibid, [4].

Following this finding, Coghlan J declared the Applicant liable for supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”). A custodial supervision order was imposed on the Applicant for a nominal term of 25 years, and the Applicant was committed to the custody of the Victorian Institute of Forensic Mental Health (“Forensicare”), specifically the Thomas Embling Hospital in Fairfield.[5]
[5]Re XY (No 2) [2019] VSC 268, [3].

In 2018, the Applicant was granted extended leave.[6] This entitled her to be absent from the Thomas Embling Hospital subject to various conditions, for a period of 12 months pursuant to section 57(1) of the Act. Leave was extended for a further…

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 4)

Details

AGLC: Re XY (No 4) [2022] VSC 21
Case: [2022] VSC 21
Decision Date: 23 November 2021

CaseChat Overview and Summary

In the matter of XY, the Supreme Court of Victoria was tasked with considering an application to revoke a non-custodial supervision order imposed under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The applicant had a history of mental health issues and had been subject to a custodial supervision order that was varied to a non-custodial supervision order in 2020. The applicant subsequently relocated to Queensland, prompting the application for revocation of the non-custodial supervision order. The court needed to determine whether the order should be revoked and, if so, what conditions should apply.

The legal issues before the court included the application of the principles outlined in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) when considering the revocation of a non-custodial supervision order. The court also needed to consider the principles applicable to the continuation of a long-term non-publication order under the same Act and the Open Courts Act 2013 (Vic). The court had to weigh the applicant's relocation to Queensland against the need to ensure public safety and the applicant's mental health needs.

The court found that the principles guiding the revocation of a non-custodial supervision order under the Act required a careful balance between the applicant's rights and the need to protect the community. The court determined that the applicant's relocation to Queensland was a significant factor in favour of revoking the order. The court also concluded that the continuation of the non-publication order was necessary to protect the applicant's privacy and prevent any potential prejudice to any future proceedings. The court varied the non-custodial supervision order to a custodial supervision order with specific conditions to ensure the applicant's mental health needs were met.

The court revoked the non-custodial supervision order and varied it to a custodial supervision order with specific conditions. The court also continued the long-term non-publication order. The applicant was to be subject to the conditions of the custodial supervision order, including regular reporting to a designated officer and participation in a mental health treatment program. The non-publication order was to remain in place to protect the applicant's privacy and prevent any potential prejudice to any future proceedings.

Orders