Re P K

[2006] VSC 184

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1414 of 1999

NOTE:The name and address of the forensic patient and any information which may identify him or the victim have been suppressed from publication by Order of the Court

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

- And –

IN THE MATTER of an Application for a Grant of Extended Leave by “PK”

- And -

IN THE MATTER of an Application for Variation of a Custodial Supervision Order to a Non-custodial Supervision Order by “PK”

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 MAY 2006
DATE OF RULING:	12 MAY 2006
CASE MAY BE CITED AS:	IN THE MATTER OF “PK”  (No. 1)
MEDIUM NEUTRAL CITATION:	[2006] VSC 184

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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Applications for grant of extended leave and for variation of a custodial supervision order to a non-custodial supervision order – Failure by the Court to notify relevant parties of the application for variation of the custodial supervision order – Family of victim not provided with notice of application to vary pursuant to s. 38C – Impact on applicant of adjourning application to vary.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr  R. Williams	Mental Health Legal Centre Inc.
For the Attorney-General (Vic)	Ms F. Ellis	Victorian Government Solicitor
For the Department of Human Services	Ms A. Ring	Legal Services, DHS
For the Director of Public Prosecutions	Mr P. Raimondo	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions

HIS HONOUR: 

1. On 23 February 2006 the applicant, to whom I shall refer as “PK”, filed two applications.  One was a notice of application for a grant of extended leave.  The other was an application to vary the custodial supervision order to which he is presently subject pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. This application was made pursuant to ss.31 and 32 of the Act, the combined effect of which is to empower the Court to vary a custodial supervision order to a non-custodial supervision order.

1. For some reason presently unexplained, the Court has proceeded as if the application for a non-custodial supervision order had not been filed.  As a result, on 14 March 2006 the court of its own motion made orders fixing today as the hearing date for the application for extended leave and giving consequential directions as to the interlocutory steps to be taken before the matter came on for hearing today.  No directions were given in relation to the application for a non-custodial supervision order.

1. One of the directions given by the court on 14 March was that the solicitor for Public Prosecutions file an affidavit regarding service, on the family members of the applicant and on the victims, a notice giving the date of the hearing and outlining the rights of the family members and victims in relation to it.

1. I have affidavit material before me to the effect that the solicitor for Public Prosecutions acted in accordance with that direction; but, as was to be expected in the circumstances, served on the family members and victims notice only of a hearing of an application for a grant of extended leave.  The notice did not make any reference to the application for a non-custodial supervision order.

1. The court is thus faced with a situation that what seems to me to be the requirements laid down by s.38C of the Act have not been complied with.  By that section, the Director of Public Prosecutions must give notice of any court hearing referred to in sub-s.(2) to each family member of the person and each victim of the offence with which the person was charged.

1. Sub-s.(2) in turn states that the hearings of which notice is required to be given include an application under s.31 for variation or revocation of a supervision order; that of course is an application which, by his notice of 23 February, the applicant has made.

1. As I read s. 38C, there is nothing in it which would prevent the court proceeding to hear an application, despite non-compliance with the requirements of that section.  Nevertheless, the Parliament has made it clear that in its view reports from the family members or victims are an important factor which, if provided to the court, must be taken into account when the court decides whether or not to exceed to applications of the kind presently before the court.

1. I refer here to sub-s.(1)(d) of s.40 of the Act which provides that in deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person - and these are applications of that kind - or to grant extended leave to a person or revoke a grant of extended leave, the court must have regard to, amongst other things, any report of the family or victims.

1. Because of the failure, apparently by the Court, to appreciate that two applications had been filed by the applicant, the Court is not in a position to consider reports from family members or victims in relation to the application for a non-custodial supervision order.

1. There thus arises a question of priority of rights:  the applicant has a right to pursue his applications, and some urgency is attached to one of them.  The extended leave granted by Balmford J on 30 May 2005, after hearing the on 17 May that year, expires at the end of this month.  The applicant is therefore necessarily concerned to ensure that appropriate action is taken by the court to deal with his application before the present grant of extended leave expires.  The applicant is also entitled to have his applications heard together given that separate hearings will cause, as I accept, stress to him over and above the stress to which no doubt he is already subject by reason of the fact that the applications are before the court today.

1. That stress would almost necessarily be duplicated, at least in part, were there to be two hearings; one in respect of the application for a grant of extended leave and the other in respect of the application for a non-custodial supervision order.

1. Together with those considerations I must take into account the convenience of those who will be called as witnesses in relation to the two applications.  If the applications are heard separately those witnesses, or at least some of them, might be expected to be required to give evidence twice about very much the same issues.  That would be difficult for them, and perhaps even practically impossible.

1. Weighing the interests of the applicant against those of the applicant's family and the victims, it seems to me that I ought to proceed to hear both applications today despite the failure properly to inform the victims and the family of the application for a non-custodial supervision order.

1. I have come to this view partly as a result of the submission put to me by Mr Williams for the applicant, who has informed me that it is open to me to place conditions upon the access which the applicant might have to family members or victims, conditions which would protect them against unwanted contact should they not wish to have that contact made. 

1. I would propose at the conclusion of the hearing, and depending upon its outcome as to the substance of the applications, to review the question of the position of the victims and the family members so as to ensure that appropriate protection is given to them. 

1. In those circumstances I will proceed to hear both applications this morning.

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