Secretary to the Dept of Justice v Fletcher (Ruling No.3)

[2009] VSC 503

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:	22 October 2009
DATE OF RULING:	22 October 2009
CASE MAY BE CITED AS:	Secretary to the Dept of Justice v Fletcher (Ruling No.3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 503

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Serious Sexual Offenders Monitoring Act 2005 – Review pursuant to s 19(1)(b) – applicability of Charter of Human Rights and Responsibilities Act 2006 (Vic) – nature of Review – Extended Supervision Order single and continuing entity – Extended Supervision Order pre-dating commencement of operation of Charter of Human Rights and Responsibilities Act 2006 (Vic) – Charter s 2 and s 49(2) – Charter not applicable to proceeding.

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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.3

HIS HONOUR:

1. A question has arisen as to whether the Charterof Human Rights and Responsibilities Act 2006 (Vic) applies to these proceedings. Counsel have considered the matter and I think, most responsibly, have made submissions that they have this morning; and previously I have myself examined the matter, as I said to counsel on 19 October at page 7 and thereafter. My view is that the provisions of s 49(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) involve that the Charter of Human Rights and Responsibilities Act 2006 (Vic) does not apply to this proceeding.

1. The sentence was imposed upon Mr Fletcher on 4 March 1998.  The Secretary's application for an Extended Supervision Order was made on 2 March 2006.  Gillard J's Order was made on 29 May 2006 with the first review on 11 June 2009.

1. On 30 January 2008 an amended application by the respondent for a Review of the Extended Supervision Order was made pursuant to s 21(3) of the Serious Sexual Offenders Monitoring Act 2005.  On 23 June 2008 Harper J granted leave to review and on 24 June 2008 an application for review was made by Mr Fletcher.  Thus the matter has come before me on a binary basis.  Normally, it would have been Mr Fletcher's application pursuant to s 21(3) but because, through no fault of the parties, it took an extended time for the matter to come before the Court and given the time specification from Gillard J's Order of 29 May 2006 the carriage of this matter has been with the Secretary of the Department.  I think that is a proper and fair way to proceed because it gives Mr Fletcher the right to assess the material and to respond to it, rather than putting him in the vanguard of the proceedings.  I think that is fair to him and is the proper way to do it. 

1. The question arises as to whether the proceeding instituted by Mr Fletcher on 24 June 2008 or the amended application on 30 January 2008 is a separate proceeding. In my view, clearly it is not. The Secretary's application on 2 March 2006 is a separate proceeding from the sentence which was imposed on 4 March 1998. However, it is my view that the proceeding commenced on 2 March 2006 under the Act for an ESO and that these subsequent steps are particulars of that proceeding, or further steps in that proceeding. That is so for a number of reasons. First, because first of all because of the provisions of s 49(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and also s 2 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Second, by nature of the actual application made by the Secretary on 2 March 2006 and by nature of the actual extensions, variations and other incidents of the application that I have rehearsed thereafter, including the two present matters before me. Third, because the Act has, as its philosophical foundation, a continuing supervisory and safety function and it is a continuing matter rather than a discrete, separately commencing matter. Fourth, by reason of the discrimination contained in King J's judgment in R v. Williams [2007] 16 VR 168, in particular at paragraphs 47 and 48. Finally, I consider that s 23(6) Serious Sexual Offenders Monitoring Act 2005 which provides that

"A court on a review need not be constituted by the same judge who constituted the court that made the extended supervision order."

is premised upon the proceeding being a continuing single entity; otherwise, sub-s (6) would not  need to be there.

1. Accordingly, I consider as a matter of law that the Charter of Human Rights and Responsibilities Act 2006 (Vic) does not apply to the proceeding presently before me because it is part of the proceeding commenced on 2 March 2006. I agree with counsel that this is not a Charter matter.  I might say, I have been most assisted by the very careful judgment of his Honour Judge Iain Ross in AB[1] but by reason of my Ruling; I do not get that far.

   [1][2009] VCC 1132.