Derek Ernest Percy (Ruling No.1)

[2009] VSC 424

IN THE SUPREME COURT OF VICTORIA Not Restricted

COMMON LAW DIVISION

No. 1469 of 1998

IN THE MATTER OF an Application pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997:

DEREK ERNEST PERCY

Ruling No.1

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	18 August 2009
CASE MAY BE CITED AS:	Derek Ernest Percy (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 424

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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Section 35 – Major review – Prohibition order uplifted.

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APPEARANCES:	Counsel	Solicitors
On behalf of the Applicant	Mr P. Higham	Victoria Legal Aid
On behalf of the DPP	Mr G.J.C. Silbert SC	Office of Public Prosecutions
On behalf of the Attorney General's Office	Ms K. Judd SC with Ms J. Greenham and Ms J. Davidson	Victorian Government Solicitor’s Office
On behalf of the Department of Human Services	Mr P.J. Matthews	Department of Human Services
On behalf of the Secretary to the Department of Justice	Mr G. Gilbert	Corrections Victoria
On behalf of the Herald & Weekly Times Pty Ltd (by leave)	Mr J. Quill	Kelly Hazell Quill

Ruling No.1

HIS HONOUR:

1. I have been most assisted by the evidence of Dr Bell, which I consider has been thoughtful and careful.  I am also mindful of the responsible and difficult work conducted by Thomas Embling, and by Forensicare, as evidenced by the three witnesses today plus as a matter of general knowledge.

1. However, I am entirely unpersuaded that the s.5 Prohibition Order should remain in place in any respect as to a secure facility, a hospital, or Thomas Embling Hospital as in name. 

1. I consider it is not logical and it is not realistic to order that no publication be made as to the legal possibility that this s.35 hearing could result in the applicant being placed in Thomas Embling.

1. It is a matter of law, if one reads the Act, which is a public matter, as to where Mr Percy could go.  It is a matter of general public knowledge largely shared within the community under a major review where an applicant might go.  I think it is both illogical and unrealistic to maintain the Prohibition Order.  I have maintained it until now out of respect for the desire of one or more of the parties before me until I have heard the evidence. 

1. There are significant public interest considerations and I consider the public is entitled to know that this proceeding is on foot and that a legal consequence could be that the applicant is placed in Thomas Embling Hospital.

1. Accordingly I uplift the Order first that there is no reference to the potential of this application under s.35 resulting in placement in the Thomas Embling Hospital.  Second, I uplift the Order that the evidence today dealing with Thomas Embling ought be prohibited from publication.  Third, I uplift the Order that there was in February 2009 an application by Mr Percy pursuant to s.31 of the Act for the variation of a custodial supervision order to the end that he be removed from custody and placed in Thomas Embling, a secure facility, noting that application was withdrawn yesterday, which fact also can be published.

1. Accordingly I revoke the Order that no reference be made to Thomas Embling and I revoke the Order that today's evidence so far as it relates to Thomas Embling not be published, and I revoke the Order suppressing the fact that there was a s.31 application by Mr Percy which was yesterday withdrawn.

1. I add, although I am sure I do not need to say this, that my revocation of that Order in no way prejudges the outcome of this proceeding and it in no way presages the outcome of this proceeding.  It relates rather to fundamental legal principle applicable to open justice.

1. I also add that earlier today as appears in the transcript of proceedings [T.24] I uplifted the Prohibition Order in relation to the names Yvonne Tuohy and Shane Spiller, for the reasons there stated.

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