Re CS (No 2) - [2024] VSC 87

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0003

IN THE MATTER of the Serious Offenders Act 2018 (Vic) (‘the Act’)
and
IN THE MATTER of an application under s 99 of the Act for review of a Supervision Order
and
IN THE MATTER of an application under s 40 of the Act for a declaration that a condition of a Supervision Order is a restrictive condition
BETWEEN:
THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Applicant
and
CS	Respondent

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2024
DATE OF JUDGMENT:	6 March 2024
CASE MAY BE CITED AS:	Re CS (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 87

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CRIMINAL LAW – Supervision order – Periodic review of supervision order – Unchallenged evidence of psychologist – Application for declaration that a condition is a restrictive condition – Non-publication order sought by respondent and opposed by the applicant – Nigro v Secretary to the Department of Justice (2013) 41 VR 359 – Serious Offenders Act 2018 (Vic) ss 14, 27, 40, 41, 99, 102, 103, 104, 105, 106, 279, 280.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Holdenson KC	Russell Kennedy
For the Respondent	Ms N Smith	Victoria Legal Aid

HER HONOUR:

Introduction

On 26 October 2021, I made order that the respondent (‘CS’)[1] be subject to a supervision order (‘SO’) pursuant to s 14 of the Serious Offenders Act 2018 (Vic) (‘the Act’). That order commenced on 26 October 2021 and was made for a period of three years.
[1]A pseudonym.

The extensive history of this matter up to that date is set out in my reasons in DPP v CS,[2] and I will not repeat them here.
[2][2021] VSC 686.

The applicant (‘the Secretary’) now applies to this Court for a review of the SO in accordance with order 5 of orders made on 26 October 2021 and pursuant to s 99 of the Act. The Secretary seeks that the SO in respect of CS be confirmed and, pursuant to s 40 of the Act, the following existing condition of CS’s SO be declared a restrictive condition:

[CS] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.

The Secretary’s application is supported by the following material:

(a) progress report of psychologist Simon Candlish dated 16 July 2023 and addendum progress report of Simon Candlish dated 16 February 2024;

(b) Victoria Police Court Outcomes report (containing CS’s criminal history) dated 21 July 2023;

(c) chronology as at 4 March 2024; and

(d) outline of written submissions dated 24 January 2024.

CS does not oppose the course proposed by the Secretary: that the existing SO be confirmed. CS does seek that a non-publication order be made pursuant to s 279 of the Act,[3] which is opposed by the Secretary. CS relies on an outline of submissions dated 26 February 2024.
[3]Pursuant…

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 CS (No 2)

Details

AGLC: Re CS (No 2) [2024] VSC 87
Case: [2024] VSC 87
Decision Date: 6 March 2024

CaseChat Overview and Summary

The parties in this case were CS (the applicant) and the Secretary to the Department of Justice (the respondent). The nature of the dispute was the periodic review of a supervision order imposed on the applicant under the Serious Offenders Act 2018 (Vic). The applicant sought a declaration that a condition of the supervision order was a restrictive condition, while the respondent sought a non-publication order, which the applicant opposed. The matter was heard in the Supreme Court of Victoria.

The legal issues the court had to decide included whether a condition of the supervision order was a restrictive condition and whether a non-publication order should be granted. The court had to consider the relevant provisions of the Serious Offenders Act 2018 (Vic) and the case law, particularly Nigro v Secretary to the Department of Justice (2013) 41 VR 359. The court also had to balance the applicant's right to privacy and the public interest in the publication of the information.

The court found that the condition of the supervision order was not a restrictive condition as it did not limit the applicant's ability to carry on a lawful profession, trade, business or occupation. The court also found that a non-publication order was necessary to protect the applicant's privacy and to prevent the risk of serious harm to the community. The court considered the principles of open justice and the public interest in the administration of justice but found that they were outweighed by the need to protect the applicant's privacy and the risk of serious harm to the community. The applicant's opposition to the non-publication order was rejected.

The final orders of the court were that the condition of the supervision order was not a restrictive condition and that a non-publication order was granted. The order prohibited the publication of the applicant's name, address, and any other identifying information. The order also prohibited the publication of any information that could reasonably be expected to lead to the identification of the applicant. The order was to remain in effect until the supervision order was discharged or varied.

Orders