Secretary to the Dept of Justice v Fletcher (Ruling No.1)

[2009] VSC 501

IN THE SUPREME COURT OF VICTORIA Not Restricted

COMMON LAW DIVISION

No. 1527 of 1997

SECRETARY TO THE DEPARTMENT OF JUSTICE	Applicant
v
ROBIN ANGUS FLETCHER	Respondent

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2009
DATE OF RULING:	19 October 2009
CASE MAY BE CITED AS:	Secretary to the Dept of Justice v Fletcher (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 501

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Serious Sexual Offenders Monitoring Act 2005 – Section 42(1) – application for Suppression Order of evidence and of name of Respondent – considerations applicable – comparison with s 19(1)(b) Supreme Court Act 1986 – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC with Ms K Stern	Victorian Government Solicitor’s Office
For the Respondent	Mr G Thomas SC with Mr A Marshall	Cinque Oakley

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Ruling No.1

HIS HONOUR:

1. This is an application by Mr Thomas, senior counsel for Mr Fletcher, for an Order under the Serious Sexual Offenders Monitoring Act 2005 being a Suppression Order pursuant to s 42(1) of that Act, generally as to the proceeding presently before the Court and evidence therein or more limited in relation to the name of Mr Fletcher, a party to the proceeding.

1. Mr Thomas has submitted that it is justified in terms of s 42 in the public interest that the Court order that those matters, that is to say the proceeding and evidence and also Mr Fletcher's name, not be published.

1. Evidence has been called before me of a distinguished psychiatrist who has in substance given evidence that the effect of publicity on sexual offender patients, including Mr Fletcher, can involve antipathetic consequences – distress, anxiety, paranoia – and indeed can in certain cases lead to the potential for re-offending by reason of those antipathetic stressors. Mr Thomas has relied upon both that evidence and the nature of the Serious Sex Offenders Monitoring Act which is a provision going very much to both protection of the community and to therapeutic concern for the offender.  Section 1(1) of the Act provides that:

"The main purpose of the Act is to enhance the protection of the community",

as is there set out. Plainly s 42(2) makes provision for a Prohibition Order, normally so called, or a Suppression Order, as the Act has called it, in the public interest.

1. It is notable that s 42 is broader than s 19 Supreme Court Act 1986 because s 19 which refers to Prohibition Orders made pursuant to s 18 is phrased in terms of necessity and s 19(1)(b), the usual one for this sort of application in a court, that an Order be made under s 18 if it is necessary to do so in order not to prejudice the administration of justice. Section 42 has a different standard and a different scope, namely is it satisfied in the public interest to make the Order sought? Mr Thomas has further called in aid general principle and also article 14 of the International Covenant on Civil and Political Rights 1966 wherein it is provided that:

"The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in democratic society or when the interest of private lives of parties so requires or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

Whether or not that provision technically here applies, as Mr Grace has submitted, Mr Thomas has also relied upon s 24 of the Charter which essentially posits the same consideration.

1. I have every respect for what the psychiatrist has said and I certainly consider that therapy and treatment of persons the subject of criminal process and in particular of sexual offenders is central and important.  However, there is a fundamental interest in the public in having serious proceedings open for public scrutiny. In my view, that interest of the public is overwhelming and it is proper that the media, as effectively the window of the public into the Court, be entitled to publish the proceedings and the name of Mr Fletcher.  In my view, that is a corollary of the need for proceedings such as these properly to be known by the community.

1. Thus, while I fully acknowledge the evidence of the psychiatrist and indeed Mr Thomas' helpful submissions in relation to the interests of supervision and therapy, in my view the public interest clearly is in favour of open process in a case such as this or other like cases where the community is entitled to know what the courts are doing in relation to offenders.

1. Accordingly, I refuse the application by Mr Thomas, both in its general and its particular.  That is to say, I refuse it in relation to the proceeding or evidence therein and I refuse it in relation to the name of Mr Fletcher.