Secretary to the Department of Justice v R F

[2011] VSC 135

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 12 of 2006

THE SECRETARY TO THE DEPARTMENT OF JUSTICE	Plaintiff
v
R F	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2011
DATE OF RULING:	8 April 2011
CASE MAY BE CITED AS:	Secretary to the Department of Justice v R F
MEDIUM NEUTRAL CITATION:	[2011] VSC 135

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PRACTICE AND PROCEDURE – Application for renewal of supervision order pursuant to s 28 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Factors governing adjournment of trial.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Grace QC	Victorian Government Solicitor’s Office
For the Defendant	Mr A Marshall	Cinque Oakley Senior Lawyers

HIS HONOUR:

1. The applicant (‘the Secretary’) has filed an application for the renewal of a supervision order with respect to R F pursuant to s 28 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’). 

1. On 17 December 2010, I made a series of orders intended to ensure that the matter could satisfactorily come to trial before the supervision order currently governing R F expires on 12 June 2011. 

1. I listed the application for renewal of the supervision order for hearing on 2 May 2011 with an estimated duration of five to seven days.  I directed that the Secretary file and serve copies of any reports and other material upon which she intends to rely by 28 January 2011.  I further directed that R F file and serve copies of any reports and other material upon which he intends to rely by 28 February 2011. 

1. The Secretary has complied with this direction but R F has not. 

1. Application is now made on behalf of R F to vacate the trial date.  It is said that R F has been unable to retain a psychiatrist to provide a report on his behalf.  Professor Mullens, who saw R F at one stage, has retired and Dr Sullivan, who has also seen R F previously, has been overseas.  There was difficulty in obtaining Legal Aid funding for a full report from an expert at one stage.  In addition, the distance between the solicitor acting for R F who practices at Ballarat and R F who resides at Ararat and has physical disabilities has caused problems. 

1. It was further submitted that an interim order could be made pursuant to pt 4 of the Act to preserve the status quo if the trial date were vacated.

1. The Secretary opposes the application to vacate the trial date.  It is submitted that R F has previously demonstrated a strong inclination not to cooperate with authority.  He initially refused this week to see Dr Glaser, but an arrangement has now been made for him to see Dr Glaser today (Friday 8 April).  The solicitor for the Secretary has for the last two months urged the solicitor for R F to provide any material upon which he relies.  No affidavit has been sworn adequately explaining why the delay has occurred.  R F has engaged experts in the past.  Professor Mullens did not give evidence on the occasion of the last hearing before the Court but another expert did give evidence for R F. 

1. Counsel for the Secretary also indicated that the Secretary will do whatever she can to facilitate R F attending an appropriate expert prior to the trial date and would agree to proceeding even if reports were not received up until 2 May 2011. 

1. It was further submitted that a hot-tub procedure could be adopted at the trial to enable any conflict in the expert evidence to be satisfactorily addressed at the trial.  This procedure was adopted before Cummins J at a previous hearing under the previous Act and s 79 of the current Act makes clear that the current application is to be regarded as a civil application. 

1. It was lastly submitted that, although an interim order might be made pursuant to pt 4 of the Act, such an order would itself be limited in duration to four months and would itself simply postpone the problem. The overriding consideration must be the protection of the community.

1. I accept that a significant consideration in proceedings of this type is the protection of the community and the framework of time limits contained in the Act is intended to facilitate this. It also seems to me that, as Bongiorno J recognised in his decision of April 2010, R F is currently being held in de facto custody. This factor also encourages a speedy and effective review of the status quo.

1. I propose to vacate the trial date and re-list the matter for hearing on 30 May 2011 on a five to seven day estimate.  I will direct that the matter be listed for further directions on 2 May 2011 before the Honourable Justice Emerton, or such other judge as the Associate Justice in charge of listing may nominate.  I will reserve liberty to apply.

1. I will make these orders on the understanding that the Secretary will do whatever she can to facilitate R F attending an appropriate expert in order to obtain a report. In turn, although I am prepared to give R F some further opportunity to obtain expert evidence, the matter cannot properly be deferred for longer than I propose, having regard to the time limits set in the Act itself and the conditions governing R F’s supervision at present.

1. I note for the sake of completeness that during the course of this morning’s hearing I raised with the parties the following matters:

(a)       the desirability of a joint experts conference if R F does obtain a further expert report;

(b)      the desirability of exploring the possibility of negotiated conditions if a further supervision order is to be made;

(c)       the need to limit the reference to background material at the hearing to what is strictly necessary.