In the matter of s35 Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 In the matter of major review of: Derek Ernest Percy

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION

Not Restricted

No. 1469 of 1998

IN THE MATTER OF SECTION 35 OF
THE CRIMES (MENTAL IMPAIRMENT
AND UNFITNESS TO BE TRIED) ACT

1997

A MAJOR REVIEW OF

DEREK ERNEST PERCY

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JUDGE:	Eames, J.
WHERE HELD:	Melbourne
DATES OF HEARING:	17-18 August, 18 September 1998
DATE OF JUDGMENT:	2 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 90

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Major Review - Section 35 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Reviewee detained in custody in a prison - whether court satisfied that release on a non-custodial supervision order would seriously endanger the safety of members of the public - failure of Reviewee to give evidence - relevant principles.

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APPEARANCES:	Counsel	Solicitors
For the Attorney General	Ms B. King QC	Victorian Government Solicitor
For the Director of Public	Mr G. Flatman QC	Solicitor for Public
Prosecutions	Prosecutions
For the Reviewee	Mr P. Tehan QC	Victoria Legal Aid
with Ms C. Randazzo
For the Department of	Mr R. Punshon	Russell Kennedy
Human Services

HIS HONOUR:

On 20 July 1969 Derek Ernest Percy, who was then aged 20 years, killed Yvonne Elizabeth Tuohy, a 12 year old girl who had been abducted by him near the beach in the Warneet area in South Gippsland. On the day of the death Mr Percy was taken into custody, and on 2 April 1970 he was presented for trial on one count of murder, to which he pleaded not guilty. After a six day trial he was found not guilty on the ground of insanity and on 9 April 1970 the trial judge, Pape J, pursuant to s. 420 of the Crimes Act 1958, ordered that Mr Percy be kept in safe custody until the Governor’s pleasure was known and the Governor made known his pleasure on 10 May 1970, that he be confined in safe custody.
Mr Percy, who is now aged 50 years, has been in custody, in prison, as a Governor’s Pleasure detainee in excess of 29 years. He is the only person who, having been made the subject of a Governor’s Pleasure order, remains in a prison in this State.
As a person detained under a Governor’s Pleasure order Mr Percy is defined to be “an existing detainee” within the terms of cl.1 of Schedule 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (hereinafter referred to as “the Act”). He is therefore deemed, by cl. 2 of Schedule 3, to be the subject of a custodial supervision order under the Act.
By s. 35 of the Act the status of Mr Percy must now be the subject of what is called a "major review" by the court. Section 35 provides as follows:

“35. Major reviews

(1)

At least 3 months before the end of the nominal term of a supervision order, the court that made the order must undertake a major review.

(2)

The purpose of a major review is to determine whether the person subject to the order is able to be released from it.
(3) On a major review, the court -
(a) if the supervision order is a custodial supervision order -

(i) must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or
(ii) if so satisfied, must confirm the order or vary the place of custody;
(b) if the supervision order is a non-custodial supervision order -

(i) may confirm the order; or
(ii) may vary the conditions of the order; or
(iii) may revoke the order.”

As to the principles which should govern the court, s. 39 and s. 40 of the Act provide as follows:

“39. Principle to be applied
In deciding whether to make, vary or revoke a supervision order or to remand a person in custody under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
40. Matters to which the court is to have regard

(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, the court must have regard to -
(a)        the nature of the person’s mental impairment or other condition or disability; and
(b)       the relationship between the impairment, condition or disability and the offending conduct; and
(c)         whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d)        the need to protect people from such danger; and
(e)        whether there are adequate resources available for the treatment and support of the person in the community; and
(f)         any other matters the court thinks relevant.

(2) The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it -

(a) has obtained and considered the report of at lease one registered medical practitioner or registered psychologist, who has personally examined the person, on -
(i) the person’s mental condition; and
(ii) the possible effect of the proposed order on the person’s behaviour; and

(b)        has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c)         is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)        has considered any report of the family members or victims made under section 42; and
(e)        has obtained and considered any other reports the court considers necessary.

(3)

Notice need not be given under sub-section (2)(c) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.”

WHETHER THE SAFETY OF THE PUBLIC WOULD BE SERIOUSLY ENDANGERED

When he was arrested a search of Mr Percy's motor vehicle disclosed notes in which he had detailed rape and homicidal fantasies involving children. The notes contained drawings of naked children. At the time when the little girl was abducted she was in company of a young boy of similar age, and Mr Percy made an effort to capture that boy, too, but he ran away and later gave the alarm and was a key witness against Mr Percy. I have received a victim report from that witness, which attests to the considerable trauma in his life since these events, and in consequence of them.
Prior to her death the little girl was subjected to appalling indignities and torture, and was killed and mutilated in circumstances which need not be described here.
It is appropriate that I explain why I do not propose to elaborate on the circumstances of the killing.
It is important to note that a major review is not a sentencing exercise. Mr Percy has been found not guilty, on the ground of insanity, by verdict of a jury, and his detention for 29 years has not been pursuant to a sentence. The task set for the court under s. 35 is not to determine whether the circumstances of the killing which led to his detention were such that any, or any additional, punishment should be imposed by extending the period of his detention. The issues before me focus on the question of present and future danger, not on punishment for events of the past. Once the nature of the task set by s. 35 is understood, it is clear that the court should not focus attention on the circumstances of the killing save to the extent that that is relevant to the task of assessing present or future dangerousness, and save to the extent necessary for those reading my reasons for judgment to understand the factors which I have taken into account in reaching my decision.
The notes seized from Mr Percy's car after the killing of the young girl disclosed that her abduction and death were not spontaneous events, but occurred very much as the notes anticipated that such events might occur. The notes had been in existence at least for some months, but there was evidence which later emerged which indicated that Mr Percy's homicidal fantasies had been present for up to four years prior to the killing.
In 1971, in his cell, it was discovered that Mr Percy had comprehensive notes describing even more horrific fantasies concerning the abduction, imprisonment, torture, rape and killing of children. Also located was a collage of newspaper photographs of children, with obscene additional artwork in Mr Percy's hand. The notes are of the most horrifying nature, which, again, I consider it unnecessary to describe in any detail. Mr Percy had written a complex chart, with first names given to proposed victims, in which he traced a pattern of conduct which would take place over many years involving the rape, torture and killing of the named children.
Among the first names of children referred to in these 1971 notes were some names which coincided with those of children of a family known to him, which family he had occasionally visited at the time of his arrest. There were, too, some other references in the notes which suggested that the perverted fantasies did relate to those children, even if other names used were those of imaginary children. I have before me a statement by the father of those, now adult, children, urging that Mr Percy should not be released, although the father does not suggest that his children are now in danger from Mr Percy, should he be released.
Mr Percy has always claimed that he produced this 1971 material at the request of a psychiatrist who had asked him to write down fantasies for therapeutic purposes. Whether or not that is true, and it is impossible to now know what truth there is in the assertion, the fact remains that the work was solely the product of Mr Percy's imagination. The three experienced forensic psychiatrists who gave evidence before me all had little doubt that whatever the cause of their production, the notes and collage demonstrated that their author was - at that time - a very dangerous man. The issues which I must address on this major review pose the question whether I can be satisfied that the dangerous man of 1971 remains a serious danger to the community should he be released.
Since 1971 Mr Percy has never written anything which could be indicative of any sexual fantasy. Over many years (and in particular when Mr Percy was interviewed for the purpose of the preparation of psychiatric reports which were to be presented to the Adult Parole Board for its annual reviews of his situation) Mr Percy has claimed that his aberrant fantasies of 1969 and 1971 ceased at about that time, and claimed that for many years his only sexual fantasies have been of a non-violent kind involving adult heterosexual partners. That assertion has not been capable of being explored or tested because (as all psychiatrists have noted over many years, and as was noted by each witness who examined him for this hearing) Mr Percy studiously resists giving frank co-operation to any exploration of the existence of such fantasies or the circumstances of the killing.
There may well be good reason why Mr Percy would be reluctant to participate openly in such an exploration of his inner thoughts and motivations. He might fear that should he acknowledge that he continues to have such fantasies then it may well harm his prospects of eventual release. His dilemma is that without such co- operation the psychiatrists decline to merely accept his word that his fantasies have changed, and they also take the view that any treatment regime would be extremely difficult to devise or successfully conduct without his full and frank co- operation.
Mr Percy did not give evidence before me, and his assertion to those who interviewed him - that he no longer holds violent sexual fantasies - has not been tested.
Dr Ruth Vine, the authorised psychiatrist attached to Rosanna Forensic Mental Health Centre, interviewed Mr Percy for the purpose of the review, and has previously interviewed him for reports to the Adult Parole Board. In her opinion (which was shared by the two other specialist psychiatrists who gave evidence before me), Mr Percy is not now insane, or - to use the terminology now employed by the Act - is not suffering from mental impairment. As a matter of law, the jury verdict, which was based on the unanimous expert evidence of three experienced psychiatrists, determines that the situation was otherwise at the time of the killing, ie, that he was insane at the time of the killing. Be that as it may, the witnesses who gave evidence before me were of the opinion that Mr Percy’s mental condition in 1969 has not altered to that of today, and all three expert witnesses gave evidence before me expressing doubt whether the 1969 psychiatric opinion that he was psychotic at the time of the killing would be consistent with what is understood today by psychiatrists to be the nature of his condition, then or now.
The fact that Mr Percy does not suffer a recognised mental illness is important for a number of reasons, not least because it means that he can not be transferred from prison to a mental health facility, such as the Rosanna Forensic Psychiatry Centre, pursuant to the provisions of the Mental Health Act 1986. By virtue of s. 17(1)(b) of that Act the Secretary of the Department of Justice may effect such a transfer, but only for a person who "appears to be mentally ill". The fact that such a transfer is not open to Mr Percy under that provision means that so long as the diagnosis remains that he is not suffering a recognised mental illness his only prospect of transfer from prison to an approved mental health service is by order of the court by way of this major review under s. 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, or else under s. 31 of the Act, which permits an application to be made for variation or revocation of a supervision order.
Dr Vine described Mr Percy's condition as being a highly unusual one, not being a condition now understood as constituting insanity or mental impairment, but being a disorder which fell into a category of paraphilia, being a paedophilic attraction to minors of both sexes, with sadistic features. In addition, he had demonstrated a preoccupation with faeces, and excreta generally. Mr Percy has a schizoid personality and is extremely guarded as to what he states, Dr Vine said. He has an abnormal personality with prominent traits of isolation from others. Dr Vine considered that it was difficult to make a more definitive assessment because of Mr Percy's reluctance to discuss the sexual fantasies.
Dr Vine's assessments were generally shared by Professor Paul Mullen, the Clinical Director of the Victorian Institute of Forensic Mental Health, and by Dr Lester Walton, a consultant clinical psychiatrist, both of whom examined Mr Percy for the purpose for this review. All witnesses had also examined the extensive files which contained numerous psychiatric reports relating to Mr Percy over nearly 30 years. Those reports were consistent in their assertion that, in whatever terms his condition was diagnosed or described, he presented a serious danger to the public and should not be released.
Although he submitted that it might be possible to argue otherwise, Mr Tehan QC, senior counsel for Mr Percy, conceded that if Mr Percy does hold the same fantasies today, as in 1969 and 1971, then, it is clearly open to me to be satisfied that his release would constitute serious endangerment to the community. Mr Tehan submitted, however, that the onus is on those asserting the fact to prove that Mr Percy represents a risk of serious endangerment, should he be released, and therefore, the onus is on those asserting that proposition to prove to my satisfaction, as a threshold proposition, that he continues to hold these fantasies. Mr Tehan submitted that if that proposition is not established to my satisfaction then there would be no basis, at all, for me to be satisfied that the release of Mr Percy on a non-custodial supervision order would constitute serious endangerment of the public.
The legislation makes it quite clear that if serious endangerment is not established to my satisfaction then s. 35 entitles Mr Percy to have his status reduced to that of a non-custodial supervision order.
Mr Tehan submitted that the evidence before me does not assert that Mr Percy is now dangerous and would constitute serious endangerment if released, but, rather, the expert witnesses are unable to say whether he now is or is not dangerous. In other words, if there is an onus of proof, then it falls on those who assert that I should be satisfied that Mr Percy is now a serious danger to the community, and, Mr Tehan submits, that onus has not been discharged.
Whether or not s. 25(3) imposes an onus of proof on any party to a major review seems to me not to be important to resolve in the present case. I considered that question in a ruling which I published on 18 September 1998, but for present purposes I will simply assume that such an onus does exist and that it falls on those who oppose the reduction of the status of Mr Percy from being a person subject to a custodial supervision order to that of a person subject to a non-custodial supervision order.
It is quite correct, as Mr Tehan asserted, that each of the expert witnesses expressed their opinion of the risk of re-offending in terms more to the effect that they were not persuaded that he would not re-offend, rather than in terms that they were positively satisfied that he would do so. For reasons which I will explain, the fact that the opinions of the witnesses are expressed in that way would not preclude my reaching the satisfaction required by s. 35(3) whilst relying on that and other evidence. It is necessary to examine the evidence of the witnesses, in detail, on the question of the threat to safety, if any, which Mr Percy may pose.
Dr Vine agreed with Mr Tehan's proposition that she did not know whether Mr Percy would present a serious danger to the public. That was so, she said, because Mr Percy would not co-operate in fully discussing his fantasies, or the killing itself, so one could not assess whether he had genuinely abandoned his prior fantasies, or, if he had not, whether he had an insight into them which might facilitate their control.
Dr Vine acknowledged the difficulty of predicting future behaviour in any person. Dr Vine conceded that she could not prove that Mr Percy does in fact hold the same fantasies as were exposed in 1969 and 1971. Since 1971 he has said or written nothing that would support that contention, but he has avoided all attempts to have him conduct a frank dialogue with any treating psychiatrist or mental health professional. He has simply denied that he does hold such fantasies.
It was Dr Vine's opinion, however, that given that the dangerous sexual and sadistic fantasies had been present since his teen years (as he had conceded when interviewed at the time of his trial), had been acted upon in 1969, and had been re- asserted in his 1971 writings, it was likely that his dangerous proclivities were deeply entrenched by 1971, and she said that the clinical experience and literature suggested that there was a risk that such entrenched attitudes may remain with the person for life. Indeed, as Dr Vine noted, the extraordinarily detailed notes, and the complexity of the fantasies written at such length in his 1971 notes, provide compelling evidence that, at that time at least, the fantasies had occupied his attention to a very significant degree. She agreed that psychological testing conducted in 1988 did not demonstrate that he was still experiencing grossly abnormal sexual fantasies, but given his lack of complete co-operation in such testing, and the limitations of the tests, she doubted the efficacy of those tests to establish that fact, if it existed. It is to be noted that the author of the report of the psychological testing, Dr Christopher Drake, reported that Mr Percy appeared to have limited insight into his offence and seemed to the author to demonstrate a reluctance to accept responsibility for the killing.

Dr Vine said she had no confidence that Mr Percy does not maintain the fantasies and, thus, his dangerousness. The proposition of Dr Vine that the dangerous sadistic fantasies were likely to be deeply entrenched was supported by the evidence of Professor Mullen and Dr Walton.
As I have said, although Mr Percy has claimed that he no longer holds such beliefs, that assertion has not been tested. Mr Tehan submitted that there is no evidence which has been presented which shows that he does retain the fantasy life of 1969 and 1971. It is to be noted, however, that at the time of the killing, and in the months leading up to it, there was no outward sign given by Mr Percy - who went about his normal duties in the Navy with apparent care and skill - that he was then obsessed with planning the murder of one or more children (his written plans having envisaged that more than one death would occur).
Professor Mullen said that the evidence disclosed that for some four years before the killing Mr Percy had been actively generating complex sadistic and paedophile fantasies and the desires were so strong, and his self control so weak, that he put his plans into action. Professor Mullen said that Mr Percy's condition is extremely rare, and there is little experience upon which to draw for making predictions as to what may occur in his case, but - making use of what is known about paedophile offenders who have engaged in sadistic and paedophile fantasies - it is the common experience that such fantasies tend to be persistent and are very difficult to shift, so long as sexual desire lasts.
When asked if he considered that Mr Percy's fantasies were deeply entrenched, Professor Mullen said: "I would need to be convinced it weren't so in Mr Percy's case, and I would have to feel there was a very strong reason for believing that in his case it is different from the majority of cases of those who have less extreme but in some ways similar sexual desires and drives".
Professor Mullen said that he could not predict that Mr Percy would be dangerous if released, but, at the same time, could give no assurance that he would not be, if he were released. As to the fantasies being deep seated, he presumed that was so, and, while there was no evidence to say that they did continue, he would require very good reason not to assume that they continued, because experience with others whose situation had some similarity to Mr Percy suggested that such fantasies would continue.
Professor Mullen said his expectation was that Mr Percy's fantasy life continued today, and as to Mr Percy's statement to Dr Walton that his fantasies abated soon after the killing (or, at worst, after 1971) and had not recurred, Professor Mullen said that for such abatement to have occurred, as suggested, would make his situation most unusual, if not unique.
Professor Mullen noted that without the co-operation of Mr Percy it was impossible to know whether, if he still had the fantasies, they caused him any concern. He said that regard must be had to the fact that in the event that he did hold such fantasies then the risk with which the court is concerned is the risk of the killing of another child. He noted that the killing of the young girl was not that of an impulsive person, but was carefully planned. The ability to predict whether a further killing might occur was extremely limited, in Professor Mullen's opinion.
Whilst conceding that there were no outward signs to suggest that Mr Percy was still maintaining his fantasy life, Professor Mullen said that in assessing his risk, if released, one had to have regard to the fact that for the vast majority of forensic patients for whom risk assessment must be made there will be clear and obvious warning signs should they be returning to past behaviour because of their mental illness. Mr Percy does not suffer any recognised mental illness and there would be no similar warning signs should he intend to revert to the conduct which led to his detention. Professor Mullen agreed that he simply did not know whether Mr Percy was likely to be a danger to the public should he be released, but said that given Mr Percy's reluctance to communicate frankly with psychiatrists, over the years, he had no confidence that he had changed, and as to whether he could be a risk if he was released, said it was very difficult to see how he could not consider Mr Percy a continuing risk, given those circumstances.
Professor Mullen said there were few cases with which to compare Mr Percy for purposes of making any prediction as to future behaviour, because his situation was that of a man who had "fantasized, planned, articulated in his own mind a system of hurting, humiliating and torturing a child, ending with killing it as the direction and source of that sexual gratification. That is extremely rare, fortunately." Because his situation is unique, any treatment program would have to be devised solely for him, after assessing and evaluating his situation. As to whether any such program might be devised and be successful Professor Mullen expressed a very tentative opinion that it might be possible, if approached carefully, over time. In her evidence, Dr Vine said that although he may have asserted a willingness to co-operate with treatment programs, Mr Percy has not, in practice, demonstrated the willing co-operation which is required for any program.
When asked the same questions as to the likelihood of Mr Percy re-offending, Dr Walton observed that if it was true, as Mr Percy claimed, that Mr Percy had ceased to have the fantasies from a time soon after the killing then the likelihood of his re- offending would indeed be low, but even if that were so, regard had to be given to the possibility that the fantasies might re-emerge when he was released and, if so, there would be considerable risk of his re-offending. Dr Walton stressed that unlike other known paedophile offenders - even those who have killed - it was the very fact of killing which was the end which had been sought by Mr Percy. In his case, killing was not an unintended result, but would continue to be the purpose of his conduct should his condition re-emerge and not be controlled. This was so, Dr Walton said, although Mr Percy had asserted in an interview with him that the killing was an unplanned event, which had occurred after he had attempted to rape the young girl, and had not been the result for which the abduction occurred. Dr Walton considered it probable that the abnormality was deeply entrenched by the time of the killing.
Dr Walton's opinion was, therefore, in similar terms to that of the other expert witnesses, namely, that it is not possible to give any reasonable assurance that he would not re-offend if released. For that to be predicted Mr Percy would have to be open with consultants, which he had not been, to date.
Mr Tehan, senior counsel for Mr Percy, pointed to a range of factors which, he submitted, all tended to confirm that Mr Percy would not seriously endanger the public if released. He has been a model prisoner for nearly 30 years; there is no evidence since 1971, either in any writing or in any interview with the many departmental and professional people with whom he has had dealings, that he harbours abhorrent fantasies; his parents and siblings have offered positive support should he be released; he was very young when the killing occurred. As to the suggestion that he has been evasive as to his memory of the events leading up to the killing, and the killing itself, Mr Tehan submitted that there are reasons why, over time, he might have forgotten many of the details of the killing and may not necessarily be refusing deliberately to discuss them with consultants. He may have other good reasons, inconsistent with the assertion that he remains dangerous, for not wishing to discuss the matters.
The first issue which must be determined, however, is whether on the evidence available I am satisfied that the public would be seriously endangered should Mr Percy's status be reduced to that of a non-custodial supervision order. In determining that question I am to have regard to the matters set out in s.39 and s. 40 of the Act.
There is no doubt, whatsoever, in my opinion, that both at 1969 and at 1971 Mr Percy was indeed a very dangerous man whose release from custody would have been inconceivable. The question is whether he remains such a dangerous person. As Dr Vine noted, it is not merely a question of assessing the extent of any danger which he presently poses, but whether his condition is such that in the changed environment which would accompany his release, or even his detention in a low security mental health unit at the Rosanna complex, he would then constitute such serious danger.
Section 40(1) and (2) require that I have regard to a range of matters when deciding whether or not to make, vary or revoke an order under Part 5 of the Act (under which s. 35 appears). Although I must have regard to those matters, it seems to me that the primary question which must be answered is that identified in s 35(3)(a), namely, whether I am satisfied that safety of the public will be seriously endangered if Mr Percy were released on a non-custodial supervision order. If I am not so satisfied then he must be granted a change in status from a custodial supervision order. The question of serious endangerment is, however, one which requires the court to have regard to a whole range of considerations, including all of those factors identified in s. 40(1) and s. 40(2). The weight to be attached to the various factors might vary according to the circumstances of any given case.
In Mr Percy’s case, the nature of his condition, as described by Dr Vine and the other expert witnesses, the direct relationship between that condition and the killing of the little girl, the fact that it is a condition which must produce killing and torture were it not controlled (which would seem likely to be the case if Mr Percy were to seek to obtain gratification by indulging in the fantasies produced by his condition); the fact that any planning to cause death would be unobserved; the fact that no community resources exist which could prevent a killing should he, whilst free, succumb to the same urges to indulge in such crimes; are all factors which suggest that great care needs to be taken in assessing the question whether his release would constitute a serious endangerment for the public.
Although the experts all expressed their evidence, at times, in terms that it had not been proved that Mr Percy was not such a serious danger if released, the evidence of those witnesses, in my opinion, really leads to a positive conclusion as to that matter, namely, that he would pose such a serious danger if he were released.
In a separate ruling, delivered on 18 September 1998, I held that the standard of satisfaction, as to serious endangerment, which must be attained by me, if the supervision order is not to be reduced to a non-custodial supervision order, is that reached on the balance of probabilities but - having regard to the seriousness of the matters in issue - applying the principles discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362.
In my opinion, an examination of the 1969 and 1971 material, together with knowledge of the facts surrounding the killing, tend to confirm that not only was Mr Percy very dangerous at that time, he remains so, because the underlying sadistic condition was then, and remains now, deeply entrenched. He has received no treatment of any kind which might have changed that situation. He has shown no real interest in having such treatment. He has demonstrated no significant remorse or anxiety, at least none which I find credible, as to the circumstances which caused him to kill. He has not sought to gain insight into those matters, save, to a very superficial degree, in an attempt to satisfy or divert those seeking to explore the issues with him for the purpose of writing reports which he knows might assist his attempts to gain transfer out of prison, as a step towards ultimate release.
In considering whether it is appropriate to draw the inference that the aberrant sexual and sadistic fantasies to which Mr Percy was prone until 1971 continued thereafter, and are indulged by him today, it is appropriate, in my opinion that I have regard to the fact that Mr Percy chose not to give evidence before me. Whilst there is no onus of proof resting on Mr Percy, the evidence of the psychiatrists, which I have discussed, above, suggests that it is likely that the fantasies were deeply entrenched by 1971, and would have continued thereafter. The evidence of the psychiatrists satisfies me that if such fantasies are held today, and are not controlled, then Mr Percy would represent a serious danger to the public should he be released. The one person who is able to say whether he does or does not hold those fantasies, today, is Mr Percy. Although he has stated to psychiatrists that he has not held the fantasies since about 1971, at the latest, he has absolutely resisted any attempts to allow them to test that assertion. He has declined to give evidence so that the assertion might be tested before me, notwithstanding the fact that I stated that in the absence of such evidence I would be likely to more readily draw an adverse inference against him as to whether he does retain his aberrant fantasy fixation. In those circumstances, the principles discussed by Mason CL, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217, at 228, may be appropriately applied.
In that case, their Honours held that where a party to litigation failed to accept the opportunity to place before the court evidence of facts within his knowledge which, if they existed would explain or contradict the evidence which is contrary to his interests, doubt about the drawing of an adverse inference from the evidence may more readily be discounted by virtue of the party's failure to contradict or explain that evidence. I accept that a major review is not "litigation". I have had regard, too, to the possibility that there may have been other factors which might have motivated Mr Percy not to give evidence even though, had he done so, he might have rebutted the adverse inference which could be drawn from the evidence. Given the intense media speculation which surrounded Mr Percy's major review, (much of the speculation having no foundation in any of the evidence placed before me) and given the fact that after nearly 30 years in prison he must be institutionalised to some degree, it would no doubt have been an ordeal for him to have given evidence. Those considerations do not, however, persuade me that I should not have regard to the failure to give evidence. Mr Percy is an intelligent man, and despite his long period in custody he is not institutionalised to the extent that might have been expected. Whatever the ordeal in giving evidence, he has also declined to co-operate with psychiatrists in having the issue explored, although their inquiries would not have been a similar ordeal.
As I have said, the fact that Mr Percy did not give evidence before me, makes it more reasonable to draw the inference - which, upon consideration of the whole of the evidence, must inevitably be drawn , in my opinion - that his deep seated fantasies have indeed continued since 1971. Because I am satisfied that Mr Percy holds those fantasies, then, in my opinion, the conclusion is irresistible that he remains as dangerous now as he was in 1969 and 1971. Once that conclusion is reached, then, under s.35(3)(a)(ii), I must confirm the custodial supervision order, but I may vary the place of custody.
WHETHER THE PLACE OF CUSTODY SHOULD BE VARIED
The fact that Mr Percy denies holding the fantasies, when he declines to permit that assertion to be tested, may do little to diminish my degree of satisfaction as to the danger which his release would pose, but it is a factor relevant to the next question, whether, for the purpose of treatment, I should exercise the power under s.35(3)(a)(ii) to vary the place of custody in which he is detained, notwithstanding my satisfaction that because his release would represent serious endangerment to the public he must remain subject to a custodial supervision order.
Mr Tehan first submitted that under s. 35(3) I could conclude that I was satisfied that the safety of the public would not be seriously endangered if I decided that I would reduce his status to that of a non-custodial supervision order on condition that he resided at Unit M5 at Rosanna, and obeyed the directions of the Clinical Director of the Centre. In effect, what was proposed was that Mr Percy would be declared as being subject to a non-custodial order, but, in fact, by virtue of terms and conditions imposed by me, and accepted by him, would be placed in custody, because he would not be permitted to leave M5 without approval of the Director or the Court. Unit M5 at the Rosanna Centre is a low security ward, however, and for reasons which I will later discuss, it would be a quite inappropriate placement for Mr Percy and his location there, as a suggested condition of a non-custodial supervision order, could not possibly enable me to conclude that that serious endangerment of the safety of the public could be eliminated if he was to be housed in M5 in such circumstances.
I have concluded, however, that a non-custodial supervision order can not be an order which, in reality, imposes custody upon the person concerned, and to adopt the suggestion of Mr Tehan would produce that result. Forensic patients can not simply walk out of M5. The exits are locked and approval to depart must be given by staff of the unit. But a person subject to a non-custodial supervision order has been released from custody. If Mr Percy was denied the right to elect to depart from M5 then he would be in custody, in my view. The terms of s.35(3)(a), however, when read with s.26 (which describes custodial and non-custodial supervision orders) clearly envisage that it is only when the court is satisfied that the person does not represent serious endangerment that there can be “the release of the person on a non-custodial supervision order”.
A transfer to M5 could be achieved under s. 35(3)(ii), however, whilst he remained subject to a custodial supervision order.
Throughout his incarceration - which in the first 10 years was in G Division at Pentridge (a division which had psychiatric services) - Mr Percy received no treatment of any kind. He had shown no serious inclination to be involved in any program, although, in Dr Vine's opinion, no existing program would have been suitable for his condition, in any event.
Mr Tehan submitted, however, that (notwithstanding the opinions expressed by the expert witnesses as to his limited prospects of successful treatment, given his lack of co-operation) if I was satisfied that the custodial order should be confirmed then I should make an order under s. 35(3)(a)(ii) that Mr Percy be transferred to Unit M5 at Rosanna so as to ensure that he receives appropriate treatment. Mr Tehan referred also to s. 26(4), which provides that the court should not commit a person to custody in a prison under a supervision order “unless it is satisfied that there is no practicable alternative in the circumstances”. Mr Tehan also submitted that this outcome would be consistent with the principle set out in s. 39 for the minimising of restrictions on personal freedom and autonomy.
Each year Mr Percy's situation has been reviewed by the Adult Parole Board, for reporting to the Executive. The lack of any secure alternative facility, coupled with Mr Percy's reluctance to be involved in any exploration of his mental state (thus rendering it unlikely that any treatment program, if devised, would succeed) and his perceived dangerousness, meant that at no time did the Board recommend that he be transferred to a psychiatric unit, and away from prison.

Dr Vine accepted that the situation of his being housed in prison rendered it difficult, if not impossible for Mr Percy to form the sort of trusting relationship with psychiatrists which would be necessary if a program was to be devised to meet his particular needs for treatment. A first step for any such regime of treatment had to be his willingness to speak frankly to his treating professionals, and he was unlikely to develop sufficient trust while he was in a prison environment. As was stressed by all expert witnesses, whether or not any treatment program could be devised for Mr Percy was unknown, and could only be assessed if a frank evaluation could be first made of whether he presently holds similar fantasies to those of 1969 and 1971.
The best prospect of such a relationship with professionals being established would arise if he was to be relocated to a forensic psychiatric unit, and Mr Tehan submitted that that should occur. However, were I to consider adopting that proposal there are considerable difficulties which would have to be addressed.
Before considering the difficulties which such a proposal presents I should make it clear, first, that I am far from persuaded that Mr Percy, in fact, wants to receive treatment, or considers that he needs treatment for his condition. The expert witnesses are unable to say whether, if he retains the fantasies, they disturb him. I am satisfied, in fact, that he does hold the fantasies, and there is no evidence which I find persuasive to suggest that the fantasies then, or now, bother him at all. I say that notwithstanding the fact that since 1990 the records of the Adult Parole Board disclose that he expressed his keenness to be transferred to the Forensic Mental Health Centre at Mont Park (now known as the Rosanna Forensic Psychiatry Centre) and expressed his willingness to co-operate in discussing his problems so as to facilitate treatment. The assertion that he would, if transferred to Rosanna, co- operate with treatment programs must be weighed against the fact that he has not, since that time, been open in his conversations with mental health professionals (although giving some appearance, very recently, of being more open than in the past). I do not consider that these rather modest indications of an interest in treatment at Rosanna can be taken at face value.
Mr Percy told corrections officers in 1990 that he wanted to go to Mont Park so as to be dealt with in the same manner as other persons under Governors’ Pleasure orders. Most persons at the Rosanna/Mont Park facility would have reasonable prospects of being granted extended leave. Mr Percy is a highly intelligent man (as psychological tests have disclosed) and it seems likely that his objective in seeking transfer to Rosanna was not for treatment, but for eventual release. His ambition in that respect is perfectly understandable, but does not lead to a conclusion that he has such insight into his condition and of his need for treatment as to demonstrate that he is not dangerous.
The only facilities which at present house forensic psychiatric patients, and which might be considered for his transfer, are those at the Forensic Psychiatry complex at Rosanna. At Rosanna there are two medium security units, M6 and Ellery Unit. Neither of those units would be appropriate for Mr Percy since they house acutely ill or chronically disturbed persons. Mr Percy, who is not mentally ill, according to Dr Vine, would be very much out of place in those units. The most appropriate unit would be that known as M5, but that is a low security unit. Additionally, M5 is very crowded, and Mr Percy would have to share a room with one or two other people, and could not have his own computer in his room, as he has in his cell at Ararat Prison.
It was submitted that the security issue should not be overstated as a factor militating against his transfer to M5. It is true that on the evidence before me Mr Percy has given no trouble as a prisoner, and has given no indication that he might contemplate escaping. The purpose of seeking transfer to M5 was as a step towards eventual release, Mr Tehan submitted, and were Mr Percy to transfer to M5 and then to escape or attempt to do so, he would realise how that would damage his prospects of eventual release, probably for all time, so he would have an incentive not to escape. Mr Tehan stressed that since his client is not insane, and is indeed very intelligent, Mr Percy would not contemplate escaping in such circumstances.
In Professor Mullen's view the primary reason why Mr Percy should be moved from the prison to a forensic psychiatry unit, at some stage, is that he is the last person who had been found not guilty of the ground of insanity who had not been so moved. That opinion was shared by Dr Walton, but both witnesses, as did Dr Vine, noted that there were features of M5 which made it an unsatisfactory location for Mr Percy, one which he himself might also find unsatisfactory. Unlike other patients, he alone would have little or no anticipation of being permitted leave from the building, nor have the prospect of fairly early release into the community. Professor Mullen said he had recommended to the Parole Board that Mr Percy should be transferred into the mental health system once suitably secure facilities were created. He considered that the proposed new forensic psychiatry facility at Fairfield might well provide such facilities, certainly better facilities than presently exist at the Rosanna complex.
I had the opportunity to inspect the existing facilities, being M5, M6 and Ellery Unit, and the inadequacies of those bleak and crowded places is very apparent, as was the relatively limited security of M5. From plans which I have seen, and having regard to the evidence I have heard, the new Fairfield complex will offer an assurance of high security to any patient who required it. All patients would have a room to themselves. It would be a facility where, so I was told, there would be a much greater ability to introduce courses, such as TAFE courses, and other group and individual programmes. Were Mr Percy to be sent there any problems, both for himself and other patients, concerning his interaction (as a person not with a psychiatric illness) with persons who were acutely psychotic, would be able to be avoided, or managed. In those conditions the opportunity for psychiatrists to work with Mr Percy (should he be willing to do so without maintaining his reticence or non-co-operation) so as to devise an appropriate program for his treatment would be much better than would be the case either at Rosanna or in prison. Even if he refused to co-operate, the possibility of observing him, interacting with him, and thereby the prospects of attempting to devise an appropriate treatment regime must also be improved.
Mr Tehan submitted that were I to conclude that the Rosanna facilities were inappropriate for Mr Percy then I should adjourn the further hearing of this review until after completion of building of the new forensic psychiatry facility at Fairfield, which will replace the existing facilities at Rosanna. There is little doubt that the construction of the new facility will make a very substantial change in the efficacy and security of forensic psychiatry services in this State. The Fairfield complex is unlikely to open before April or May 1999.
I am not persuaded, however, that the further hearing of this matter should be adjourned. Although the apparent reverse onus which operates in favour of reviewees who are subject to major review under s. 35 would not apply, again, were I to refuse to downgrade his status on this major review, Mr Percy could later apply to be moved to Fairfield pursuant s. 31 of the Act once Fairfield has commenced its operations. Whether such an application would succeed might depend in part on the willingness which Mr Percy exhibits, in the meantime, to be more forthcoming with the psychiatric professionals.
Professor Mullen said that it would be possible for the Institute to work with Mr Percy in the period before the opening of Fairfield, even if Mr Percy remained in prison at Ararat, in order to attempt to investigate and devise any programmes which might be tailored for Mr Percy should he be transferred to Fairfield at a later stage. The effectiveness of any such effort to devise a program and the willingness of Professor Mullen to provide staff for this purpose, would, in part, depend on Mr Percy's willingness to co-operate with those attempting to devise such a program. He accepted that Mr Percy's situation in prison made it difficult for him to venture such co-operation or trust with mental health professionals. No adequate treatment program could be provided to him in prison and none has been offered to him. Professor Mullen believed that Mr Percy's fantasies might be capable of control, but what was unknown, if he still holds the fantasies, is whether Mr Percy would want to control them, or be able to do so.
I conclude, therefore, that it is not appropriate to make an order under s. 35(3)(a)(ii) varying the place of custody from prison to Unit M5 at Rosanna Forensic Psychiatry Centre.
WHETHER APPROPRIATE FACILITIES ARE AVAILABLE
Counsel for the Attorney General and for the Department of Human Services both submitted that the question whether Mr Percy might be transferred to the Rosanna Forensic Psychiatry Centre could not arise, at all, in this case. That was so, it was submitted, whether such an order was being contemplated by virtue of the reduction in his status to a "non-custodial" supervision order (were I to have failed to be satisfied on the question of serious endangerment under s. 35) or else, where a custodial order was maintained but a change of venue was ordered under s.35(3)(a)(ii). The reason why that was submitted to be the case related to the effect of s.26(3) of the Act. That sections reads as follows:

“(3) The court must not make a supervision order -

(a) committing a person to custody in an appropriate place; or
(b) providing for a person to receive services in an appropriate place or from a contracted service provider or the Secretary to the Department of Human Services -
unless it has received a certificate under section 47 stating that
the facilities or services necessary for the order are available.”

As I have stated, above, I heard extensive evidence from Dr Vine and other psychiatrists as to the services which existed at Rosanna and as to the appropriateness of those facilities for Mr Percy. I agree with Mr Tehan that the thrust of that evidence was that whilst the facilities, as they presently exist at Rosanna, were really not appropriate for Mr Percy, those running the Centre would comply with any court order if the court decided to make such an order, and would do their best to ensure that he was appropriately supervised, and efforts would be made to devise and offer an appropriate treatment regime. In effect, the evidence was that there were no facilities in Victoria other than those at Rosanna which might conceivably be utilised if Mr Percy was to be moved from a prison environment.
Under s.47(1) of the Act it is necessary that the Court obtain a report as to available services from the Department of Human Services. By s.47(2) that report must state whether there are facilities or services available for the custody, care or treatment of a person where the court is considering the imposition of a supervision order or making an order that the person be placed in custody in an appropriate place, or receive treatment or services at an appropriate place from the Department or a service provider. I received such a certificate in Mr Percy's case, which contained, firstly, a description written by Dr Vine of available services provided by the Victorian Institute of Forensic Mental Health, but which also contained a certificate from Michael John Gavin Burt, the delegate of the Secretary of the Department, who certified that those services "are not available for the custody, care or treatment" of Mr Percy, and which further certified that: "The Department does not provide a service which I consider appropriate for the court to consider in making the proposed order".
This certificate was only received towards the end of the hearing of the major review of Mr Percy and had not been the subject of any discussion during the hearing until it was referred to in response to the final submissions of Mr Tehan. The terms of s.26(3) suggest that the certificate puts an end to the question whether Mr Percy could be transferred to the Rosanna complex.
Mr Tehan submitted, however, that the certificate - which is couched in dogmatic terms - appears to be in conflict with some of the evidence which I heard as to the appropriateness of the Rosanna facilities. He submitted that in the event that (but for the terms of the s. 47 certificate) I would have been inclined to make an order directing Mr Percy to Rosanna, then I should require the delegate to attend court to give evidence and be cross examined as to his report. The power to require the Secretary (and, presumably, his delegate) to attend for that purpose is provided by s.47(5). Mr Tehan referred to s.26(4) of the Act which provides that the court may not commit a person to custody in a prison, under a supervision order, unless "it is satisfied that there is no practicable alternative in the circumstances".
For the reasons which I have given, however, the need to require the delegate to attend court does not arise, because I am satisfied that Mr Percy's status and location should not be altered.
By s.40(2)(d) I am required to consider any reports from the reviewee’s family members, and also from victims of the offence. Section 42(1) provides that I should do so for the purpose of assisting counselling and treatment processes for all people affected by an offence and assisting the court in determining any conditions which it might impose on any order. By s.42(3) the report of a victim is to give particulars of injury, loss and damage suffered by reason of the offence. I have received a number of moving reports from victims of the events surrounding the tragic death of Elizabeth Tuohy and I have had regard to the anxiety therein expressed. In essence, all of the victim reports express anxiety that, if released, Mr Percy might commit further offences.
I mention one final matter. Prior to, and during the course of, my hearings several articles appeared in the newspapers which speculated that Mr Percy may have committed more killings than that of Elizabeth Tuohy. There is no evidence before me to support that assertion. Amongst the materials placed before me was a statement by Detective Senior Constable K.S. Robertson of the Victoria Police, dated 5 May 1970. In that report Robertson referred to an interview conducted with Mr Percy about the deaths and disappearances of other children, both in New South Wales and Canberra. I did not hear evidence from Mr Robertson. At its highest the statement of Mr Robertson records Mr Percy’s agreement that on other occasions prior to the death of Elizabeth Tuohy, whilst on beaches in New South Wales, he had sordid thoughts towards children, and his agreement that he might have committed other offences had not the children been in the company of their parents. The note records that police had no evidence to connect Mr Percy to any other killings. Only one item of “evidence” was advanced. When questioned about one killing in Sydney he is recorded as having said “I could have done it but I can’t remember”. The statement of Mr Robertson merely reports that that alleged comment had been conveyed to him by an unidentified police officer. The circumstances in which the comment was made (if it was) are unknown. There is no other evidence, at all, to link Mr Percy to any other killings. I have considered this material, as I am entitled to do because in conducting a major review I am not bound by the rules of evidence (s.38), but, having considered that material, it is apparent that I could give little weight to it. It is not surprising that there was such speculation at the time of Mr Percy’s arrest and trial, but it is important that speculation based on so little evidence should not distract the court from the task of evaluating the credible evidence which is available for scrutiny.
CONCLUSION
I conclude that the safety of members of the public would be seriously endangered were Mr Percy to be released on a non-custodial supervision order and, pursuant to s. 35(3)(a)(ii), I confirm the custodial supervision order under which he is confined to custody in a prison.
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[1998] VSC 90

2 October 1998