Vlahos v Director of Public Prosecutions (Vic) (Ruling No 1)
[2021] VCC 1520
•8 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-18-00582 and CR-19-01032
Indictment No. G13086039.A
| WILLIAM VLAHOS | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| and | |
| VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH | Intervenor |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 October, 17, 20, 23 & 24 November, | |
DATE OF RULING: | 8 October 2021 | |
CASE MAY BE CITED AS: | Vlahos v DPP (Vic) & Anor (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1520 | |
REASONS FOR DECISION
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Subject:Charter of Human Rights and Responsibilities
Catchwords: Criminal proceedings – Sentencing hearing – Court-ordered psychological assessment conducted in prisoners’ contact visits area of Melbourne Assessment Prison by Forensicare employed clinical psychologist – Alleged interruptions occurring during assessment interview – Application of ss 32 and 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) – Whether s 8A Sentencing Act 1991 to be interpreted so as to require consideration of human rights in conduct of any investigation under s 8A(5) – Whether public authority acted in a way incompatible with prisoner’s human rights – Right to privacy – Right to humane treatment when deprived of liberty – Whether arbitrary interference with privacy – Whether argument on s 32 of the Charter misconceived – Whether Charter rights were engaged
Legislation Cited: Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 13(a), 22, 32, 38 – Sentencing Act 1991 ss 8A
Cases Cited:Earl Baker (a pseudonym) v DPP (2017) 270 A Crim R 318 – Briginshaw v Briginshaw (1938) 60 CLR 336 – Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 – R v Ngo [1999] 3 VR 265 – Slaveski v Smith (2012) 34 VR 206 – Minogue v Doherty [2017] VSC 724 – WBM v Chief Commissioner of Police (2010) 27 VR 469 – PJB v Melbourne Health (2011) 39 VR 373 – Bare v IBAC (2015) 48 VR 129 – Castles v Secretary to the Department of Justice (2010) 28 VR 141 – De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647
Decision:Application under Charter of Human Rights and Responsibilities 2006 dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Wheelahan with Mr S N Andrianakis | Stary Norton Halphen |
For the Respondent | Ms D Mandie with Mr L Cameron | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Intervenor | Ms K Evans | MinterEllison |
HIS HONOUR:
Introduction
1 This is an application by William Vlahos for the hearing and determination of questions of law said to arise in these proceedings relating to:
(a) the application of s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’); and
(b) the interpretation of s 8A of the Sentencing Act 1991 (Vic) (‘the Sentencing Act’) in accordance with s 32 of the Charter.[1]
[1] See ‘Notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission under the Charter of Human Rights and Responsibilities’, dated 16 September 2020 (‘the Charter Notice’).
2 The Notice provided pursuant to s 35 of the Charter dated 16 September 2020 (‘the Charter Notice’) identifies the questions of law said to arise in these proceedings as follows:
(a) Has a public authority acted in a way that is incompatible with ss 13(a), 22(1) and 38 of the Charter in conducting an investigation directed by the Court in preparing a pre-sentence psychological report pursuant to s 8A of the Sentencing Act?
(b) Must s 8A(5) of the Sentencing Act be interpreted in a way that is compatible with the attenuated right to privacy surviving a remand order, and the right of a person deprived of liberty to be treated with humanity and respect for the inherent dignity of the human person, so far as it is possible to do so consistently with the purpose of s 8A of the Sentencing Act?
3 I shall refer to these questions of law as ‘the Charter issues’.
4 The public authority referred to in the Charter Notice is the Victorian Institute of Forensic Mental Health which was established under s 117B of the Mental Health Act 1986 (Vic) and continued under s 328 of the Mental Health Act 2014 (Vic) as a body corporate with perpetual succession which carries on business under the name ‘Forensicare’ (‘Forensicare’). Forensicare accepts it is a ‘public authority’ for the purposes of s 38 of the Charter as it is ‘an entity established by a statutory provision that has functions of a public nature’.[2]
[2] Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) s 4(1)(b).
5 On 17 September 2020, I ordered, inter alia, Mr Vlahos serve Forensicare with a copy of the Charter Notice and I made a number of timetabling orders. On 6 October 2020, I granted leave for Forensicare to intervene as a party to the proceedings, in so far as they relate to the Charter issues and any ancillary matters.[3] On 15 October 2020, I reserved the question of Forensicare’s costs of and incidental to the Charter issues proceeding.[4]
[3] See Charter hearing transcript 15 & 16 October 2020 (‘T’) 46.25–26, 47.22–26. and Levy v Victoria (1997) 189 CLR 579, 603–5 (Brennan CJ); Priest v West (2011) 35 VR 225, 232–4 [29]–[35] (Maxwell P, Harper JA and Kyrou AJA); Bolitho v Banksia Securities Ltd (No 6) [2019] VSC 653 [102]–[108] (John Dixon J).
[4] See T 33.2–34.25.
6 In my opinion, both questions of law involved in the Charter issues proceeding should be answered in the negative. These are my reasons.
The Charter Issues Defined
7 The Charter issues arise in the following context. On 30 September 2019, Mr Vlahos was arraigned on indictment G13086039.A and pleaded guilty to two charges of obtaining a financial advantage by deception. The charges allege he dishonestly obtained for himself a financial advantage totalling more than $17 million by deception from ‘punting club investors’. The plea hearing was adjourned to 4 February 2020 for a two-day fixture.
8 Prior to the hearing, Mr Vlahos filed a psychological assessment report prepared by Ms Alison Mynard dated 26 January 2020. Ms Mynard gave viva voce evidence on behalf of Mr Vlahos at the plea hearing on 5 February 2020. As a result of her evidence, I formed the opinion I would be assisted by a court-ordered pre-sentence psychological report pursuant to s 8A of the Sentencing Act which my chambers requested of Forensicare on 5 February 2020.[5]
[5] See County Court of Victoria, Request for Psychological Report dated 5 February 2020 (Ex C2).
9 On 16 March 2020, my chambers received a psychological report prepared by Mr Christopher Robert Drake, dated 13 March 2020, (‘the Drake report’)[6] from Forensicare. The Drake report was distributed to the parties on 18 March 2020.
[6] Exhibit (‘Ex’) C1 (‘the Drake Report’). See also Ex CRD-8 to the affidavit of Christopher Robert Drake affirmed 7 October 2020 (Ex F3).
10 Mr Drake is a clinical psychologist employed by Forensicare and at the time of preparing the report he was a Principal Psychologist and Assistant Manager of the Problem Behaviour Program at Forensicare (‘the Program’). At the time of affirming his affidavit[7] on 7 October 2020, he was acting Chief Psychologist and Manager of the Program.
[7] Ex F3.
11 On 3 April 2020, Mr Vlahos filed a Notice of Intention to Dispute Presentence Report relating to the whole of the contents of the Drake report.[8]
[8] Pursuant to the Sentencing Act 1991 (Vic) (‘Sentencing Act’) s 8D.
12 Owing to the first COVID-19 pandemic lockdown and the fact the Victorian Court of Appeal had reserved its judgment in Brown v The Queen[9] on 12 May 2020, this matter was adjourned for a further plea hearing to 23 September 2020, to allow for the cross-examination of Mr Drake and for Mr Vlahos to lead further psychological evidence.
[9] (2020) 62 VR 491 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA), judgment delivered 24 August 2020.
13 On 16 September 2020, Mr Vlahos filed and served the Charter Notice.
14 It is common ground that on 25 February 2020, Mr Drake attended the Melbourne Assessment Prison (‘MAP’) to conduct a face-to-face psychological assessment of Mr Vlahos (‘the assessment’). The assessment occurred in the contact visits area of MAP and lasted one hour and 50 minutes[10] from about 10:45am.[11] The suitability of the room in which the assessment was conducted, and the privacy of the discussions held between Mr Vlahos and Mr Drake are central issues in these proceedings.
[10] See Drake Report [1] (Exhibit (‘Ex’) C1).
[11]MAP Movement Register 25656 (Ex V9).
15 There are two versions of the circumstances under which the assessment was conducted and what happened during it. I will refer to these versions of events as ‘the Vlahos version’ and ‘the Drake version’ respectively.
16 The Vlahos version is set out in an affidavit of Mr Vlahos sworn 25 September 2020[12] and the exhibit thereto.[13] Mr Vlahos gave evidence-in-chief on 15 October 2020[14] and 17 November 2020.[15] He was cross-examined by Ms Evans, on behalf of Forensicare, on 16 October 2020[16] and 17 November 2020[17] and by Ms Mandie, who appeared for the Director, on 17 November 2020.[18] Mr Vlahos was re-examined on 17 November 2020.[19]
[12] Ex V1 (‘the Vlahos Affidavit’).
[13] ‘WV-1’ (copy of AHPRA complaint).
[14] T 52–80.
[15] Charter hearing transcript from 17 November 2020 onwards (renumbered from page 1) (‘T2’) 18–21.
[16] T 152–215.
[17] T2 21–28.
[18] T2 28–40.
[19] T2 43–57.
17 A diagram drawn by Mr Vlahos of the contact visits area of MAP was tendered[20] together with three Corrections Victoria floor plans and photographs of the contacts visit area.[21]
[20] Ex V2.
[21] Exs V3, V5, V8. See also floor plans (exs F1 and F5) and email from Debra Coombs to Emma Roberts dated 16 November 2020 (ex F6) .
18 Ms Mynard gave viva voce evidence on 15 and 16 October 2020[22] and tendered a further report dated 20 September 2020.[23]
[22] T 86–102, T 108–124, T 129–151.
[23] Ex V4.
19 Recordings of ‘Arunta’ calls made between Mr Vlahos and his wife on 25 and 26 February 2020 were tendered through the informant, Detective Senior Constable (‘DSC’) Nolan,[24] and played to the Court.[25] A MAP ‘Call Activity Report’ was also tendered.[26] DSC Nolan made a statement, acknowledged on 14 October 2020, regarding his assessment of the contents of the recorded calls.[27] While this statement was tendered by the Director, in my opinion the actual recordings are the best evidence and accordingly, I have had no regard to this statement.
[24] T 51 and ex V10.
[25] T2 18–19.
[26] Ex V6.
[27] Ex P1.
20 Mr Vlahos’s wife, Joanne Jones, swore an affidavit on 12 October 2020 regarding:
(1) Certain aspects of the calls between her husband and her.
(2) The contents of an email she sent to Mr Vlahos’s solicitor on 26 February 2020 (which she exhibited as Exhibit JJ-1).
(3) The circumstances surrounding a telephone call between her and Mr Drake some two weeks after the assessment.
(4) Her lodging of a complaint against Mr Drake with the Australian Health Practitioner Regulation Agency (‘AHPRA’) on Mr Vlahos’s behalf on 17 March 2020 (which she exhibited as Exhibit JJ-2).
Moreover, Ms Jones gave viva voce evidence on 23 November 2020[28] and 24 November 2020.[29]
[28] T2 219–230.
[29] T2 312–333.
21 The Drake version is set out in Mr Drake’s affidavit affirmed 7 October 2020[30] and the exhibits thereto.[31] Exhibit CRD-7 to Mr Drake’s affidavit is a sketch drawn by him ‘from memory of the assessment room at the time of [his] assessment’.
[30] Ex F3.
[31] CRD-1 (email), CRD-2 (email), CRD-3 (email), CRD-4 (email), CRD-5 (email chain), CRD-6 (‘annotated Pre-sentence Request Form’), CRD-7 (sketch), CRD-8 (a copy of the Drake report), CRD-9 (email) and CRD-10 (notes written during the assessment).
22 Mr Drake gave evidence-in-chief on 17 November 2020.[32] Notes he said he took of the telephone conversation with Ms Jones were tendered through him[33] as was a floorplan of the contact visit area marked up by him.[34] Mr Drake was examined by Ms Mandie[35] on 17 November 2020 and was cross-examined by Mr Wheelahan, for Mr Vlahos, on 20 November 2020[36] and 23 November 2020.[37] Finally, Mr Drake was re-examined by Ms Evans and Ms Mandie on 23 November 2020.[38]
[32] T2 65–97.
[33] Ex F4.
[34] Ex F5.
[35] T2 98.
[36] T2 103–138, T2 142–184.
[37] T2 191–216, T2 243–266, T2 270–281.
[38] T2 283–291 and T2 291–294 respectively.
23 Since the hearings in November 2020 the parties have filed the following documents with the Court:
(1) Mr Vlahos — ‘(Proposed) Findings of Fact Updated with References to the Evidence’ dated 16 December 2020,[39] ‘Prisoner’s Amended Charter Submissions’ dated 16 December 2020 (‘Vlahos Amended Charter Submissions’),[40] ‘The Prisoner’s Reply to the Joint Factual Submissions and Amended Proposed Findings of Fact of the Prosecution and Forensicare’ dated 26 March 2021,[41] ‘Prisoner’s Reply to Forensicare’s Legal Submissions’ dated 26 March 2021[42] and ‘Prisoner’s Reply to Prosecution Legal Submissions’ dated 26 March 2021.[43]
[39] Ex V18.
[40] Ex V19.
[41] Ex V20.
[42] Ex V21.
[43] Ex V22.
(2) The Director and Forensicare — ‘Amended Statement of Proposed Findings of Facts’ dated 16 February 2021[44] and ‘Joint Factual Submissions of the Prosecution and Forensicare’ dated 16 February 2021.[45]
(3) The Director — ‘OPP Legal Submissions’ dated 26 February 2021.[46]
(4) Forensicare — ‘Legal Submissions of Forensicare’ dated 26 February 2021.[47]
[44] Ex P2.
[45] Ex P3.
[46] Ex P4.
[47] Ex F7.
24 The Director adopts the legal submissions filed by Forensicare regarding the Charter issues and has ‘nothing to add’ on these issues.[48] The Director also adopts the legal submissions filed by Forensicare regarding the role of the Secretary to the Department of Justice and Community Safety (‘the Secretary’) in these proceedings and has ‘nothing to add’ to those submissions.[49]
[48] ‘OPP Legal Submissions’ [1].
[49] Ibid [141].
25 Forensicare ‘joins with the OPP’s submissions concerning the application of the Briginshaw principle in the fact finding process’ and ‘with the Prosecution’s submissions concerning the lack of clarity on which the Defence is seeking to make an alternative case’ for rejection of the Drake report based on acceptance of the Drake version.[50]
[50] ‘Legal Submissions of Forensicare’ [49.1].
26 At various stages during the hearing of evidence, the Director and Forensicare adopted each other’s cross-examination of defence witnesses.
The Facts and Evidentiary Principles
27 The evidence is adequately summarised in the Vlahos Amended Charter Submissions[51] and need not be repeated here.
[51] Ex V19 (hereafter ‘Vlahos Amended Charter Submissions’) [8]–[39], [54]–[109].
28 In accordance with s 4(1) of the Evidence Act 2008 (‘the Evidence Act’), it applies ‘to all proceedings in a Victorian court’ and, accordingly, the provisions of the Evidence Act apply to the Charter issues proceeding.
29 However, pursuant to s 4(2) of the Evidence Act, it only applies to a sentencing hearing if I direct that the law of evidence applies to that proceeding. Since all the parties have acted on the basis the law of evidence applies to the whole of the proceedings before me,[52] I direct the law of evidence is to apply to the sentencing hearing in relation to all matters to be determined by me.
[52] See OPP Legal Submissions [133]–[135].
30 I accept the evidence of the Arunta calls is admissible to rebut any allegation of recent invention in relation to Mr Vlahos’s evidence regarding the Vlahos version.[53] In the interests of justice, I am prepared to grant leave to Mr Vlahos to lead this evidence.[54] Accordingly, I find the Vlahos version is contemporaneous with the assessment and pre-dates the preparation of the Drake report.
[53] See Evidence Act 2008 (Vic) (‘Evidence Act’) s 108(3).
[54] See Evidence Act s 108.
31 I accept, in the absence of a direction limiting the use of this evidence,[55] evidence of the representations made by Mr Vlahos to his wife in the Arunta calls is admissible to prove the existence of a fact that it can reasonably be supposed Mr Vlahos intended to assert by the representations.[56] Nonetheless, those representations do not provide independent support for the Vlahos version. In the circumstances, I am prepared to waive the notice requirements under the Evidence Act[57] in the interests of justice.
[55] See Evidence Act s 136.
[56] See Evidence Act ss 59, 60, 64 and 66A. In so far as s 60 is concerned, I observe a proceeding under the Charter is a ‘civil proceeding’ (see Evidence Act s 3 and Dictionary, Part 1). In my opinion, contrary to Mr Vlahos’s submissions, Evidence Act s 66 does not apply in the Charter proceedings, although it clearly does in the sentencing hearing.
[57] See Evidence Act s 67.
32 While evidence of distress in the immediate aftermath of a traumatic event can be used by a factfinder in certain cases to bolster a witness’s credit, I do not find Mr Vlahos’s distress during the Arunta calls is of assistance to me in resolving the factual issues arising in this proceeding. This is because there are too many other possible explanations for Mr Vlahos’s distress at that time for me to draw a reasonable inference that his distress was related to the circumstances of the assessment.
The Onus and Standard of Proof under the Charter
33 In Earl Baker (a pseudonym) v DPP (‘Baker’),[58] the Court of Appeal observed:
Turning to the question of whether there has been a breach of Baker’s rights under the Charter, it is useful to recall that a helpful (although not mandatory) approach is to consider first whether a particular right relied upon has been ‘engaged’ in the circumstances of the case; secondly, whether the public authority has ‘limited’ or interfered with the right by its action or inaction; and thirdly, whether any limitation imposed is reasonable and justified in the circumstances.[59]
[58] (2017) 270 A Crim R 318.
[59] Ibid 331–2 [56]-[57] (Tate JA, Maxwell P and Beach JA agreeing).
34 Proceeding on the basis that it is the ‘acting compatibly’ or so-called ‘substantive’ limb of s 38(1) that is said to be engaged in the present proceeding,[60] and applying the three Baker steps, Forensicare submits:[61]
[60] See below [76]–[82].
[61] Forensicare Charter Submissions [45].
… there are a number of hurdles that the Applicant fails to overcome:
45.1 First, that the Charter rights were engaged in the circumstances of the psychological assessment;
45.2 Secondly, that the Charter rights were interfered with by Forensicare;
45.3 Thirdly, that Forensicare has not established that any limitation of rights was not reasonable and demonstrably justified pursuant to section 7(2) of the Charter.
35 As Forensicare correctly submits, Mr Vlahos bears the onus of establishing, on the balance of probabilities, the first and second of these matters. In other words, he must show that there has been a prima facie arbitrary interference with his privacy, and treatment that comes within the scope of the right to humane treatment when deprived of liberty. Forensicare accepts as a party seeking to rely on s 7(2), it bears the onus in respect of the third Baker step.[62]
[62] PJB v Melbourne Health (Patrick's Case) (2011) 39 VR 373, 441–2 [310] (Bell J); Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, 497–8 [175], 504 [203] (John Dixon J).
36 Forensicare does not make any submission about whether the s 7(2) onus should be born alternatively, or additionally, by the Director.[63] In this context, I observe Mr Vlahos initially submitted it was Forensicare who bore this onus, but later amended his submission to assert the onus was born by the Director. Since the Director and Forensicare are effectively acting as one in resisting Mr Vlahos’s application, I do not need to resolve this issue.
[63] Forensicare Charter Submissions [46].
37 In his Amended Submissions Mr Vlahos incorrectly seeks to shift the onus at the first and second Baker steps onto Forensicare to justify all matters.
38 Since the Charter proceeding is a ‘civil proceeding’ as defined in the Evidence Act, s 140 of the Act requires that I must find Mr Vlahos’s case proved if I am satisfied that the case has been proved on the balance of probabilities.
39 As Dixon J opined in Briginshaw v Briginshaw (‘Briginshaw’),[64] ‘when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found’.[65]
His Honour continued:
… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. [66]
[64] (1938) 60 CLR 336.
[65] Ibid 361.
[66] Ibid 362.
40 This elaboration of what is comprehended within the requirement for me to be satisfied on the balance of probabilities of the Vlahos version before I could find in Mr Vlahos’s favour on the Charter issue, is reflected in s 140(2) of the Evidence Act which provides:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
41 In my opinion, there is nothing particularly significant regarding ‘the nature of the cause of action’ or ‘the nature of the subject-matter of the proceeding’ so far as ‘proof on the balance of probabilities’ is concerned. However, ‘the gravity of the matters alleged’ is significant in my application of the standard of proof in this case.
42 I consider it is unnecessary for me to decide whether the common law principles discussed in Briginshaw apply in the present proceedings beyond the express provisions of the Evidence Act,[67] because it is clear I may have regard to ‘the gravity of the matters alleged’ against Mr Drake in deciding whether I am satisfied on the balance of probabilities I should accept the Vlahos version over the Drake version.
[67] See particularly Evidence Act s 9(1).
43 As the Victorian Court of Appeal said in Marriner v Australian Super Developments Pty Ltd:[68]
Where the inference propounded by a party involves allegations of impropriety or some other serious matter, s 140(2)(c) of the Evidence Act 2008 requires the court to take into account the ‘gravity’ of the matters alleged in deciding whether the inference is the more probable one. Section 140(2)(c) reflects the principles in Briginshaw v Briginshaw, namely, that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove. While the standard of proof remains the balance of probabilities, the more serious an allegation is, the greater the degree of confidence the court must attain before being satisfied that the allegation is made out.[69]
[68] [2016] VSCA 141.
[69] Ibid [78] (Tate ACJ, Kyrou and Ferguson JJA) (citations omitted).
44 This reasoning is apposite in the present case, particularly to the extent acceptance by me of the Vlahos version resolves factual disputes between the parties as to the extent of any purported interferences with Mr Vlahos’s rights to privacy and dignity, where such findings call into question Mr Drake’s professional conduct.
45 I accept the Director’s submission that the effect of Mr Vlahos’s submissions is that I ought to make findings of fact that because of the location and circumstances in which the interview was conducted, Mr Drake engaged in serious professional misconduct warranting censure and punishment by AHPRA.[70] This is the nub of the complaint made by Mr Vlahos to AHPRA. It is entirely irrelevant whether my findings and/or the evidence given in the present proceedings could be used against Mr Drake in any future disciplinary proceedings. In this context, I make clear I have had no regard to any information provided to the Court regarding the outcome of the complaint to AHPRA.
[70] See Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 4 and Health Practitioner Regulation National Law Act 2009 (Qld) s 4 and Schedule ‘Health Practitioner Regulation National Law’ s 196.
46 I accept, in effect, Mr Vlahos asks me to find Mr Drake, an experienced professional psychologist employed in a very responsible position by Forensicare, knowingly undertook an interview with a prisoner while having no, or little, regard to the prisoner’s rights to privacy and dignity, and he did so repeatedly throughout the assessment.
47 Having regard to all the evidence before me, and the submissions of the parties, I am not satisfied on the balance of probabilities, particularly given the gravity of the matters alleged against Mr Drake, that the Vlahos version should be accepted by me in preference to the Drake version to the extent the two versions are in conflict.
48 This decision does not involve me making any adverse finding in relation to Mr Vlahos’s credit as a witness. Rather, he has simply failed to discharge the burden of proof that is on him in relation to the Charter issues in all the circumstances of the case.
49 Moreover, even if I were to accept the Vlahos version, for the reasons given below, I still would have dismissed this application on its merits.
A Preliminary Legal Issue
50 A preliminary question arises regarding the proper construction of ss 8A to 8D of the Sentencing Act and the nature of the function being performed by Mr Drake and Forensicare in conducting an investigation and preparing a pre-sentence report. The question arises because of Mr Vlahos’s submissions which identify:
(1) The Secretary as the party responsible for conducting an investigation under s 8A(5) of the Act, implying the Secretary is the author of a pre-sentence report;[71] and
(2) Mr Drake and Forensicare as the Secretary’s delegates.[72]
[71] Vlahos Amended Charter Submissions [1].
[72] Ibid [192], [196] and [310].
51 I accept Forensicare’s submissions that Mr Vlahos’s submissions on this point proceed on a misunderstanding. This misunderstanding has resulted in submissions being made about the private right of communication between prisoners and the Secretary, whether under the Corrections Act 1986 (Vic) (‘the Corrections Act’) or otherwise. I accept Forensicare’s submissions that the submissions made on Mr Vlahos’s behalf are in turn misconceived.
52 Section 8A(1) gives the Court power to order a pre-sentence report before passing sentence. Under s 8A(4), the report must be prepared by (relevantly for this proceeding) the Secretary. The content of reports is governed by s 8B, and their distribution by s 8C. Section 8D then provides for the contents of reports to be disputed.
53 The author of a pre-sentence report is not required to speak to the person who is the subject of the report.[73] Rather, they are required to address the matters in s 8B to the extent they appear to the author to be relevant and readily ascertainable. In my opinion, the purpose of the report is not to act as a conduit for the person to be sentenced, who is entitled to be heard directly on their plea whether in person or by counsel, including so as to dispute the contents of the pre-sentence report. Rather, it is to provide information to the Court that is relevant to the sentencing process.
[73] Mongrag v The Queen [2018] VSCA 105 [16] (Osborn, Priest and Kyrou JJA).
54 In R v Ngo[74] the Victorian Court of Appeal considered ss 96 to 99 of the Sentencing Act as it then stood which were relevantly to the same effect as s 8A. In particular, the Court considered the role of the Secretary and the extent to which the statutory provisions contemplated that pre-sentence reports would be prepared by the Secretary in person or by their delegate.
[74] [1999] 3 VR 265.
55 The Court concluded that the legislation does not contemplate that the Secretary will be the author of reports or even that they will delegate the preparation of specific reports. It concluded the reference to ‘author’ was not a reference to the Secretary or to a specific delegate.[75]
[75] Ibid 280 (Ormiston JA, Phillips CJ and Callaway JA agreeing).
56 The Court concluded, ‘preparation’ refers to the whole process leading to the expression of opinions and making of recommendations.[76] The Secretary’s obligation is to set up a system whereby reports can best be prepared in a way which encourages consistency and efficiency.[77] The Secretary is responsible for the preparation of reports in the sense that, as part of the everyday functions of the department, they are responsible for setting up machinery for the proper implementation of s 8A.[78] That machinery would include an administrative system to support the authors of reports and ensure the engagement of professional and experienced persons who have the necessary qualifications and experience.[79]
[76] Ibid 281.
[77] Ibid.
[78] Ibid.
[79] Ibid 279–281.
57 Consistent with that obligation, the Secretary has engaged Forensicare, a statutory body with the relevant function of providing clinical assessment services to courts[80], to be the provider of pre-sentence reports to courts under s 8A. Accordingly, authors of reports are not delegates of the Secretary. They are experts engaged under the machinery established by the Secretary to ensure that courts receive pre-sentence reports as contemplated by s 8A.
[80] Mental Health Act 2014 (Vic), s 330(b).
58 In this instance, my Associate made the request to Forensicare for a pre-sentence report, as is the Court’s usual practice.[81] Forensicare assigned Mr Drake to be the author of the report and he conducted investigations and prepared a report.
[81] See ex C2.
59 Mr Drake was meeting with Mr Vlahos in his capacity as the person assigned to be the author of the pre-sentence report. His role and responsibilities were those in sections 8A(5) and 8B of the Sentencing Act. I accept Forensicare’s submissions that Mr Drake was not acting as the delegate of the Secretary nor was he standing in the shoes of the Secretary. He was not exercising any power of the Secretary.
60 Accordingly, I do not accept Mr Vlahos’s submissions regarding the relevance of powers and responsibilities of the Secretary under the Corrections Act or otherwise. They are simply not relevant to the exercise in which Mr Drake was engaged. He was the author of the report, not the Secretary’s delegate.
61 The pre-sentence report is not a form of communication between the person the subject of the report and the Secretary or between that person and the Court. Accordingly, the preparation of a pre-sentence report does not engage any right a prisoner may have to communicate with the Secretary or with the Court. In my opinion, Mr Vlahos’s submissions regarding such rights[82] are misconceived.
[82] Vlahos Amended Charter Submissions [190]–[202].
62 It is for this reason, amongst others, that Mr Vlahos’s argument concerning s 32 of the Charter is also misconceived and must fail.
63 I will now turn to the Charter issue and deal with Forensicare’s submissions. In summary, Forensicare submits:
(a) It is a public authority within the meaning of s 4(1)(b) of the Charter and consequently is bound by the obligations in s 38(1) of the Charter to act compatibly with human rights and give proper consideration to relevant human rights in decision-making.
(b) The allegations directed towards it by Mr Vlahos are that Forensicare, acting through its employee, Mr Drake, acted incompatibly with sections 13(a) and 22(1) of the Charter, which protect a person’s right not to have his or her privacy unlawfully or arbitrarily interfered with and a person’s right to humane treatment when deprived of liberty.
(c) After making findings of fact, there are three steps that can be undertaken by the Court to determine whether there has been a breach of Mr Vlahos’s Charter rights:
(i) whether any Charter right is engaged in the circumstances of the case;
(ii) if a Charter right is engaged, whether the public authority has interfered with any Charter right; and
(iii) if a Charter right has been interfered with, whether any limitation imposed is reasonable and demonstrably justified.
(d) If the Court accepts the evidence of Mr Drake, it should conclude that no Charter right was engaged by any act of Forensicare undertaken in connection with the preparation of the pre-sentence report because there has been no ‘arbitrary interference’ with his privacy and Mr Vlahos has not been treated by Forensicare without humanity or dignity. Because no Charter right is engaged, it is unnecessary to determine if Forensicare interfered with any Charter right.
(e) If, however, contrary to the Joint Factual Submissions of the Prosecution and Forensicare,[83] I was to accept Mr Vlahos’s version of events, Forensicare submits:
(i)The Court should also find that s 13(a) of the Charter is not engaged because there has (still) been no ‘arbitrary interference’ with his privacy; and
(ii)In relation to s 22(1) of the Charter, the only circumstance in which the right would be engaged is if the Court were to find that Mr Vlahos was subjected by Forensicare to treatment which caused him to suffer distress over and above any hardship or constraint resulting from his incarceration that can properly be said to have been treatment inconsistent with his right to be treated with humanity and respect for his inherent dignity. Forensicare further submits, if the right was engaged, there has been no breach of s 22(1) of the Charter. Alternatively, if a breach were to be established, Forensicare submits that the limitation was justified under s 7(2) of the Charter.
(f) Finally, Forensicare submits that s 32 of the Charter has no role to play in interpreting s 8A(5) of the Sentencing Act.
[83] See Ex P3.
Section 32 of the Charter
64 Section 32(1) of the Charter is a rule of statutory construction. It provides that ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’ Mr Vlahos has set out the applicable and relevant authorities concerning the meaning of s 32(1) in his submissions including citing Slaveski v Smith.[84]
[84] (2012) 34 VR 206.
65 In Slaveski v Smith the Victorian Court of Appeal considered s 32(1) and said:
… if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.[85]
[85] Ibid 215 [24] (Warren CJ, Nettle and Redlich JJA).
66 Mr Vlahos seeks to make an argument that s 8A(5) of the Sentencing Act should be interpreted consistently with Charter rights. I agree with Forensicare’s analysis that his argument is difficult to follow, including by reason of his failure to state which Charter rights he is referencing. The argument appears to be that s 8A(5) should be interpreted consistently with the privacy right in s 13(a) of the Charter because of the Australian Psychological Society’s Ethical guidelines for psychological practice in forensic contexts[86](‘the APS Code’) and other prisoner statutory rights protected in s 47 of the Corrections Act 1986.
[86] APS, Ethical guidelines for psychological practice in forensic contexts (approved May 2013), available at (accessed 16 September 2021.
67 I accept Forensicare’s submission that the argument is misconceived because s 32 has no role to play in interpreting section 8A(5) of the Sentencing Act.[87] I agree with the three reasons advanced by Forensicare for this conclusion as follows:[88]
[87] Forensicare Charter Submissions [20].
[88] Ibid [21]–[24].
(1) As discussed above,[89] Mr Vlahos’s submissions regarding the relevance of the powers and responsibilities of the Secretary under the Corrections Act or otherwise are misconceived. They are not relevant to the exercise in which Mr Drake was engaged under the Sentencing Act.
[89] Above [50]–[61]
(2) The effect of Mr Vlahos’s submission would require this Court to adopt a strained meaning of the words in s 8A(5) that is inconsistent with what the Court of Appeal said in R v Ngo.[90] In R v Ngo the Court of Appeal observed:
[90] [1999] 3 VR 265.
… whether “necessary facilities” exist,[91] [is] a fact which may not be within the “author’s” own knowledge but will ordinarily involve enquires from responsible persons authorised to give the information within the department as to the appropriateness and availability … of the proposed facilities for the offender. Doubtless that is why subs. (4)[92] requires the “author to conduct any investigation thought appropriate”.[93]
Section 8A must be read as a whole, and not, as Mr Vlahos seeks to do, read s 8A(5) in isolation of the other sub-sections.
(3) The submission must fail because it asks the Court to impermissibly interpret s 8A(5) in a manner with respect to a particular type of author of a pre-sentence report, namely, a psychologist. It does not follow from the plain meaning of the words in ss 8A–8D that only psychologists can author such reports. For example, a psychiatrist or a community corrections officer, may be the author of a pre-sentence report. However, the APS Code has no application to these potential authors.
[91] See s 8A(2)(b) of the Sentencing Act.
[92] This is a reference to s 96(4) of the Sentencing Act as in operation in 1999, which is identical to the present s 8A(5).
[93] Ibid 278–9 [42] (citations to legislation added).
68 In my opinion, there is simply no scope for s 32 of the Charter to require the interpretation for which Mr Vlahos contends because the words of s 8A(5) are clear. In this instance, as the Court of Appeal said in Slaveski, ‘if the words of a statute are clear, the court must give them that meaning’.
Section 38 of the Charter
69 The next question is whether or not there has been a breach of s 38 of the Charter by Forensicare.
70 Section 38(1) of the Charter provides:
Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
71 Section 4(1) of the Charter defines ‘public authority’ to include ‘an entity established by statutory provision that has functions of a public nature’.[94] Section 4(2) lists a range of non-exhaustive factors that may be considered in determining if a function is of a public nature. These include, ‘that the function is conferred on the entity by or under a statutory provision’.
[94] S 4(1)(b).
72 Forensicare accepts it is a public authority within the meaning of s 4(1)(b) of the Charter because it is an entity established by statute with functions of a public nature. Forensicare was established under s 117B of the Mental Health Act 1986 (as in force immediately before 1 July 2014) and continues under s 328 of the Mental Health Act 2014. Its functions are set out in s 330 of that Act to relevantly include: ‘(b) to provide clinical assessment services to courts, the Adult Parole Board and other relevant government agencies’.[95]
[95] See also De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647, 681 [97] (Riordan J) (‘De Bruyn’).
73 It is clear Mr Vlahos’s allegations relate to his assessment by Mr Drake, who is an employee of a public authority but not himself the entity. In my opinion, applying the reasoning of John Dixon J in Minogue v Doherty,[96] Mr Drake was acting as an employee for the entity ‘undertaking assigned duties’ when performing the psychological assessment, the relevant public authority is Forensicare.[97] This conclusion follows from the fact Mr Drake is an employee of Forensicare undertaking the task of authoring a pre-sentence report on behalf of his employer which, as I previously explained, has been engaged by the Secretary to be the provider of pre-sentence reports to courts under s 8A of the Sentencing Act.
[96] [2017] VSC 724.
[97] Ibid [76]–[78].
74 The effect of finding Forensicare is a public authority is the obligations in s 38(1) of the Charter apply to it when it is undertaking an ‘act’ or making a ‘decision’.
75 Section 38(1) of the Charter has two limbs: the ‘procedural limb’ requiring a public authority to give proper consideration to Charter rights in making a decision and the ‘substantive limb’ requiring a public authority to act compatibly with Charter rights.[98]
[98] See e.g., Bare v IBAC (2015) 48 VR 129, 205 [245] (Tate JA) (‘Bare’).
76 Mr Vlahos alleges Forensicare has acted unlawfully under s 38(1) of the Charter by interfering with his Charter rights. The ultimate submission made on his behalf is that Forensicare’s pre-sentence report should therefore be excluded under s 138, or alternatively, under ss 135 or 137 of the Evidence Act. Mr Vlahos relies in particular on the right to privacy in s 13(a) of the Charter, and the right to humane treatment when deprived of liberty in s 22(1) of the Charter.
77 Belatedly, Mr Vlahos also raises a purported ‘right to access courts’[99] and refers to s 24(1) of the Charter in his Amended Submissions.[100] It is unclear whether Mr Vlahos is submitting the purported ‘right to access courts’ is an implied right protected by s 24(1) of the Charter since the Charter does not contain any express right of this nature. In any event, this purported right is not included in the Charter Notice, and its relevance to the resolution of the present application is unclear.
[99] Vlahos Amended Charter Submissions [207]–[208].
[100] Ibid [118].
78 I note that Forensicare does not wish to be heard on the application of the Evidence Act in this proceeding and makes no submission on the ultimate question of whether Mr Drake’s report should be excluded as evidence in the plea hearing. Rather, Forensicare makes submissions on the factual matters raised in the Charter issue proceeding and resists the assertion there has been a breach of the Charter. The Director joins in these Charter submissions.
The Proper Consideration Obligation
79 Despite making extensive submissions on the obligation to give proper consideration in s 38(1),[101] Mr Vlahos concedes that the decision regarding where he was assessed at MAP was not Mr Drake’s decision.[102] Rather, Mr Vlahos accepts ‘it is more apt to describe Mr Drake’s “acting in a way that is incompatible with a human right” rather than “making a decision” that failed to give proper consideration to a right.’[103] However, after quoting a passage from an extra-curial observation of Kyrou JA,[104] Mr Vlahos, somewhat contradictorily submits, ‘it is important to identify whether Mr Drake gave proper consideration to Mr Vlahos’s Charter rights when he commenced the assessment, and the arbitrary interruption commenced’.[105]
[101] Ibid [214]–[228].
[102] Ibid [223]–[224].
[103] Ibid [224]. See also [307(d)] and [228].
[104] Justice Emilios Kyrou, ‘Obligations of Public Authorities under section 38 of the Victorian Charter of Human Rights and Responsibilities’ (2014) 2 Judicial College of Victoria Journal 77, 87. See Vlahos Amended Charter Submissions [225].
[105] Vlahos Amended Charter Submissions [226].
80 Nonetheless, I accept Mr Vlahos’s concession that the procedural limb is not engaged in this case.
81 Mr Vlahos’s misconception regarding the operation of the procedural limb is also evident in the way he seeks to import it into the scope of s 8A of the Sentencing Act. His submits that ‘[t]he discretion conferred on Forensicare to conduct any investigation it thinks appropriate must be interpreted consistently with giving proper consideration to prisoner’s Charter rights’.[106] I accept Forensicare’s submission that:
Having apparently conceded that Forensicare has not made a decision for the purposes of the procedural limb in section 38(1), this submission should be rejected. The procedural obligation is one that applies in decision-making by public authorities. By contrast, the proper construction of statutory provisions by reason of the human rights protected by the Charter is a matter resolved by section 32, on which we have made submissions above.[107]
[106] Ibid [2].
[107] Forensicare Charter Submissions [37] (citation omitted).
82 The procedural limb in s 38(1) applies to the making of a decision. The effect of this obligation is to render the human rights protected in the Charter a mandatory consideration in all cases where an administrative decision engages a human right and to require that they be given real and genuine consideration.[108] I accept Forensicare’s submission that Mr Vlahos has failed to properly identify any ‘decision’ to which the proper consideration obligation may attach and has, in fact, conceded that there is none.[109] Accordingly, I consider it is unnecessary for me to consider whether there has been any breach of the procedural obligation in s 38.
[108] Bare 217–8 [275]–[276] (Tate JA), 328 [619] (Santamaria JA).
[109] Forensicare Charter Submissions [38] referring to DPP v Kaba (2014) 44 VR 526, 647 [467] (Bell J).
83 Moving to the ‘substantive limb’ of s 38(1), which requires Forensicare to act compatibly with Mr Vlahos’s Charter rights, I accept Forensicare’s submission Mr Vlahos has failed to identify the act said to breach s 38(1).[110]
[110] Forensicare Charter Submissions [40] ff.
84 The Charter defines an ‘act’ in s 3(1) as including ‘a failure to act and a proposal to act’. In my opinion, Mr Vlahos has failed to identify the act of Forensicare that is being impugned. I agree with Forensicare’s submission that It should not be left to it to define the act. Forensicare is entitled to know the case that it must meet.[111]
[111] Ibid [40].
85 Mr Vlahos refers to Mr Drake assessing him in a ‘non-private’ space at the MAP,[112] ‘interviewing Mr Vlahos in a thoroughfare that was not private and subject to interruptions throughout in the non-contacts area of a prison’,[113] ‘interview[ing] of Mr Vlahos in a non-private space in prison’,[114] ‘continuing to act by assessing Mr Vlahos in the space provided’,[115] Mr Drake ‘failed to make inquiries as to whether the best privacy conditions in professional contact visits were available’,[116] and ‘Mr Drake’s action of conducting the assessment in the suboptimal privacy conditions provided by MAP’.[117]
[112] Vlahos Amended Charter Submissions [2].
[113] Ibid [307(b)].
[114] Ibid [228].
[115] Ibid [223].
[116] Ibid.
[117] Ibid [307(d)].
86 In my opinion, given these submissions, it is entirely unclear what act or acts Mr Drake is purported to have performed in breach of the Charter.
87 Importantly, as previously noted, Mr Vlahos concedes it was not Forensicare’s decision where the assessment was to be conducted at MAP.[118] Mr Drake was a visitor at MAP and like any visitor, did not choose which room to conduct the assessment in. He was not assessing Mr Vlahos in his own office. Neither could he, nor should he, have any control, let alone absolute control, over the prison environment he was in. Corrections Victoria is not a party to this proceeding and its conduct is not alleged to have breached the Charter. This is a significant point because Mr Vlahos concedes it was Corrections Victoria who decided where the assessment should occur.
[118] Ibid [223]–[224].
88 Given the onus is on Mr Vlahos to prove there has been a breach of the Charter by Forensicare, I conclude his failure to clearly articulate the ‘act’ for which Forensicare is allegedly responsible entitles the Court to dismiss the application.
89 Alternatively, Forensicare submits Mr Vlahos has failed to discharge the onus on him to demonstrate that purported Charter rights are engaged, and if so, have been limited by the acts of Forensicare. It submits neither the right to privacy or the right to humane treatment are engaged because there has been no ‘arbitrary interference’ with privacy or inhumane treatment by the public authority, Forensicare.
90 Forensicare posits a helpful four-step ‘roadmap’ for resolving the Charter issue which I propose to adopt.
91 The first step is for me to make factual findings concerning the circumstances of the psychological assessment. Forensicare submits I should reject the evidence of Mr Vlahos and make findings of fact as set out in Forensicare’s Amended Proposed Findings of Fact[119] for the reasons set out in the Joint Factual Submissions of the Prosecution and Forensicare.[120]
[119] Amended Statement of Proposed Findings of Fact dated 16 February 2021 filed on behalf of the Prosecution and Forensicare (Ex 2) (‘P & F Fact Findings’).
[120] Joint Factual Submissions of the Prosecution and Forensicare dated 16 February 2021 (Ex P3) (‘Joint Factual Submissions’).
92 Forensicare joins with the Director’s submissions regarding the application of the Briginshaw principle[121] in the fact-finding process concerning what Forensicare describes as ‘serious allegations of professional misconduct made by the Accused against Mr Drake’.[122]
[121] Briginshaw v Briginshaw (1938) 60 CLR 336.
[122] Forensicare Charter Submissions [49.1] referring to OPP Legal Submissions dated 26 February 2021 (Ex P4) [15]–[50] (‘OPP Legal Submissions’).
93 Forensicare also joins with the Director’s submissions regarding the lack of clarity as to whether Mr Vlahos is seeking to make an alternative case, that is, even on Mr Drake’s account of what occurred during the assessment, the Drake Report should be excluded under the Evidence Act.[123] In this regard, Forensicare emphasises the fact ‘the Accused expressly concedes that “If Mr Vlahos had been interviewed in a private room, there would be no infringement [of the Charter]”’.[124]
[123] OPP Legal Submissions [9]–[14].
[124] Vlahos Amended Charter Submissions [237].
94 The second step is to consider if any Charter right relied on by Mr Vlahos is properly engaged on the facts (the first step in the Charter analysis). Forensicare correctly submits, in my opinion, this is a case in which the onus of proof is important, and it is for Mr Vlahos, not Forensicare or the Director, to prove that a Charter right is engaged and has been limited on the evidence.
95 Given my earlier finding that Mr Vlahos has not succeeded in satisfying me I should accept the Vlahos version over the Drake version, I accept Forensicare’s (and by adoption the Director’s) submissions there is no further Charter analysis required to be undertaken under s 38 of the Charter.
96 Moreover, even if I had been satisfied that I should accept the Vlahos version over the Drake version, for the reasons adumbrated by Forensicare,[125] I would conclude the purported Charter rights were not engaged in this case.
[125] Forensicare Charter Submissions [49.2].
97 Insofar as the right to privacy is concerned, in my opinion, on either the Vlahos version or the Drake version, the argument for engagement of this right, to use Forensicare’s expression, ‘falls at the first hurdle’[126] since there has been no ‘arbitrary interference’ with privacy.
[126] Ibid.
98 Insofar as s 22(1) of the Charter is concerned, it is clear that Mr Vlahos’s case concerning the engagement of s 22 relies on the same matters with respect to the alleged breach of privacy under s 13 of the Charter. Accordingly, if s 13 is not engaged then neither is s 22. Alternatively, the only circumstance in which the right would be engaged is if I were to find that Mr Vlahos was subjected by Forensicare to treatment which caused him to suffer distress, over and above any hardship or constraint resulting from his incarceration, that can properly be said to have been treatment inconsistent with his right to be treated with humanity and respect for his inherent dignity. Once again, for the reasons advanced by Forensicare, I am not satisfied this right was breached.[127]
[127] Ibid [50]–[81].
99 The third step only arises if I form the view that the rights in ss 13(a) and 22(1) are engaged. I would then move to consider whether these rights were interfered with (or ‘limited’ to use language often employed in respect of the Charter) by an act of Mr Drake.
100 In my opinion, as earlier stated, Mr Vlahos has failed to properly identify what act Mr Drake performed that may have limited these rights, thereby leaving the parties and me to surmise what it might be. Again, Mr Vlahos fails to discharge the onus. I accept Forensicare’s submission that on either the Vlahos version or the Drake version, no right has been limited by Forensicare.[128]
[128] Ibid [49.3] and [82].
101 The fourth and final step, which considers questions of reasonable limitations and proportionality, only arises if I had found in Mr Vlahos’s favour a right is engaged and has been limited by Forensicare. In those circumstances I would need to consider whether the limitation was reasonable and demonstrably justified under s 7(2) of the Charter. In the circumstances, given my earlier findings, it is unnecessary for me to determine this issue.[129]
[129] But in any event see ibid [49.4] and [83]–[87].
102 Having set out the roadmap in summary form, I now proceed to a detailed analysis of the Charter issues raised in roadmap step two. As will become apparent, it is unnecessary for me to deal with steps three and four in the roadmap.
Engagement of Charter Rights
103 In my opinion, Forensicare correctly submits, on either Mr Vlahos’s or Mr Drake’s account, no Charter right is engaged in respect of the assessment of Mr Vlahos at MAP. The engagement inquiry has been expressed in different ways. In Minogue v Dougherty,[130] John Dixon J expressed ‘the relevance or engagement question’ in the following terms:
…is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take?[131]
[130] [2017] VSC 724.
[131] Ibid [74(a)].
104 In other decisions, it has been said that human rights are engaged when a public authority ‘makes a decision affecting or acts towards a person in a way which apparently limits their human rights’.[132]
[132] Antunovic v Dawson (2010) 30 VR 355, 371 [70] (Bell J) (emphasis added), citing Kracke v Mental Health Review Board (2009) 29 VAR 1, 27 [67] (Bell J, President) (‘Kracke’).
105 It is important to note the threshold for engagement of a Charter right is low[133] and Charter rights are to be construed ‘in the broadest possible way’.[134] Nonetheless, in my opinion, neither s 13(a) nor s 22(1) of the Charter is engaged in this proceeding.
[133] Certain Children v Minister for Children (No 2) (2017) 52 VR 441, 498 [179].
[134] Ibid citing DAS v Victorian Equal Opportunity Commission (2009) 24 VR 415, 434 [80]; De Bruyn, 691 [126].
Right to Privacy
106 Section 13(a) states a person has the right ‘not to have his or her privacy … unlawfully or arbitrarily interfered with’. The right protects persons from arbitrary and unlawful interferences by public authorities with their privacy. The right has been described of being of ‘considerable amplitude’.[135]
[135] Castles v Department of Justice (2010) 28 VR 141, 163 [79] (Emerton J) (‘Castles’).
107 I accept Forensicare’s submission that in resolving the Charter issue it is important to have regard to a number of considerations when applying both s 13(a) and s 22(1) of the Charter in the present case. These are as follows:
(1) The Charter right to privacy is not an unfettered right to privacy. The right precludes an ‘interference’ with privacy that is ‘unlawful or arbitrary’.
(2) When assessing whether either s 13(a) or s 22(1) is engaged, the context should be considered. The privacy complaint made by Mr Vlahos concerns a psychological assessment in a prison, not in the community. The privacy that may be accorded to a prisoner is different from that of a member of the community. The APS Guidelines recognise this limitation in so far as privacy conditions are concerned when they state psychologists should ‘aim to obtain the best possible privacy conditions within the limitations of the forensic context’.[136] Mr Vlahos properly concedes this point when he acknowledges, in the conduct of investigations pursuant to s 8A(5) of the Sentencing Act, privacy is to be provided only so far as possible, in light of the nature of the prison environment:
[136] APS Guidelines, [5.1].
… it does not follow that a person subject to a psychological pre-sentence report should not be afforded the same privacy as a person at liberty to the extent possible in the forensic context.[137]
[137] Vlahos Amended Charter Submissions [189].
It is vitally important to the administration of justice and fairness in sentencing that communication between the Court and an offender — via the medium of a court appointed psychologists [sic]— is conducted in the optimal privacy conditions in a distraction free environment away from the prying eyes and ears of cleaners, prison staff, and prisoners so far as possible in the closed prison environment.[138]
(3) Another part of the context is the nature of the assessment itself. Mr Vlahos was being assessed by Mr Drake in prison for the purpose of Forensicare answering the Court’s request for a pre-sentence report for his plea. The information provided by Mr Vlahos to Mr Drake in the assessment was obtained for that purpose and no other purpose. The report will, unless otherwise ordered, ultimately be made public on the court file.[139] Mr Vlahos properly concedes the limits on confidentiality in his submissions.[140] In these circumstances it cannot be said that the confidentiality of information provided by Mr Vlahos to Mr Drake is protected from public disclosure.
[138] Ibid [198] (emphasis added).
[139] See Open Courts Act 2013 (Vic) ss 4 and 7(d)(iii).
[140] Vlahos Amended Charter Submissions [189].
‘Interference’
108 The word ‘interference’ is not defined in the Charter. The Macquarie Dictionary defines ‘interference’ as ‘the act or fact of interfering’, and ‘interfere’ as ‘to interpose or intervene for a particular purpose’ and ‘to take a part in the affairs of others; meddle’.[141] In my opinion, in its ordinary meaning, the notion of ‘interference’ requires positive and active interpolation, intervention or meddling.
[141] Macquarie Dictionary (accessed online on 21 September 2021), ‘interference’ (definition 1), ‘interfere’ (definitions 1 and 2).
‘Arbitrary’
109 The meaning of the word ‘arbitrary’ is unsettled in Victorian Charter law with conflicting views being expressed between the ‘ordinary’ or dictionary meaning of the word and the ‘human rights approach’,[142] which adopts a meaning of the word ‘based on the understanding of the right [to privacy] at international and comparative domestic law’.[143]
[142] WBM v Chief Commissioner of Police (2012) 43 VR 446, 468 [98] (Warren CJ, Hansen JA agreeing).
[143] Ibid 469 [99]. See further, WBM v Chief Commissioner of Police (2012) 43 VR 446, 468 [98] (Warren CJ, Hansen JA agreeing); WBM v Chief Commissioner of Police (2010) 27 VR 469, 483–4 [51]–[57] (Kaye J); PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373, 392–5 [74]–[85] (Bell J); WBM v Chief Commissioner of Police (2012) 43 VR 446, 490 [202] (Bell AJA). See Pound and Evans, Annotated Victorian Charter of Rights, 2nd ed, (Melbourne, Law Book Co, 2019) p 114.
110 At first instance in WBM v Chief Commissioner of Police,[144] Kaye J adopted the ordinary meaning approach and opined:
[144] (2010) 27 VR 469.
The adjective “arbitrary” is a word of common use. It ordinarily denotes a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim. That common usage of the word is consistent with its dictionary definition in both the Oxford English Dictionary and the Macquarie Dictionary. The relevant definitions of “arbitrary” in the Oxford English Dictionary are as follows:
1 To be decided by one’s liking; dependent on will or pleasure; at the discretion or option of anyone;
…
3 Derived from mere opinion or preference; not based on the nature of things; hence, capricious, uncertain, varying;
4 Unrestrained in the exercise of will; of uncontrolled power or authority, absolute.[145]
[145] Ibid 483 [51] (Kaye J).
111 The human rights approach is exemplified by the judgment of Bell J in PJB v Melbourne Health,[146] who concluded that the right in s 13(a) of the Charter:
extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.[147]
[146] (2011) 39 VR 373, 389–395 [65]–[84] (‘PJB’). See also Nolan v MBF Investments Pty Ltd [2009] VSC 244 (Vickery J) (overturned on appeal, but not on this point).
[147] PJB 395 [85].
112 On the hearing of the appeal in WBM v Chief Commissioner of Police,[148] the majority in the Court of Appeal did not disapprove the ordinary meaning approach, and alternatively applied both approaches in determining the outcome.[149] In my opinion, in the present case it makes no difference which approach is preferred because they would both result in the same outcome.
[148] (2012) 43 VR 446.
[149] Ibid 472 [117]–[118] (Warren CJ, Hansen JA agreeing), contra 490 [202] (Bell AJA).
113 I agree with Forensicare’s submission that in this proceeding, the relevant question is whether the alleged interference with the right was ‘arbitrary’, not whether those who entered the room during the assessment did so ‘arbitrarily’. It follows that whether any person who entered the room during the course of the assessment did so without any purpose[150] is not relevant to the question of whether there was any arbitrary interference with Mr Vlahos’s privacy.
[150] Cf the references to ‘arbitrary purposeless interruptions’ in Vlahos Amended Charter Submissions [99].
Application to the Facts
114 With respect to the requirement that the interference be either ‘unlawful or arbitrary’, Mr Vlahos does not allege, and there is no evidence before me, that Mr Drake acted ‘unlawfully’ (other than by reason of the alleged breach of the Charter by assessing him in the allegedly non-private space). To the contrary, the evidence I accept is Mr Drake explained the limits of confidentiality to Mr Vlahos at the commencement of the assessment.
115 Rather, Mr Vlahos appears to be asking me to construe s 13(a) so as to impose a positive obligation on Forensicare ‘to take measures to protect against arbitrary or capricious interference by psychologists with qualified privacy rights in the forensic context’.[151] Mr Vlahos’s submission is that ‘despite being framed in negative terms, the right to privacy may cast positive obligations on relevant authorities to take measures to protect against arbitrary interference’.[152] He seeks to derive such an obligation from Article 17 of the International Covenant on Civil and Political Rights (‘ICCPR’).
[151] Vlahos Amended Charter Submissions [139].
[152] Ibid [140]. See also ibid [233].
116 In my opinion, applying reasoning analogous to that applied by the Court of Appeal in Bare v IBAC,[153] there is no warrant for construing s 13(a) of the Charter so as to impose such an obligation, presumably, by way of implication.
[153] (2015) 48 VR 129, 187–198 [179]–[214] (Warren CJ); 203 [239], 260–279 [398]–[457] (Tate JA); 332 [631] and 349 [665] (Santamaria JA).
117 Moreover, in my opinion Mr Vlahos impermissibly seeks to shift the onus in respect of the requirement that an interference with privacy be ‘arbitrary’ onto the public authority seeking to justify the limitation. He submits the correct approach to determining if there has been an arbitrary interference is to treat any interference with privacy as a prima facie breach and to treat the limitation on the privacy right as coextensive with s 7(2).[154] He submits further, the Court should treat the requirement that an interference be ‘arbitrary’ ‘as equivalent to the justification requirements in s 7(2) [of the Charter]’.[155]
[154] Vlahos Amended Charter Submissions [139].
[155] Ibid [231].
118 In my opinion, whilst this analysis may have been applied in one early Charter case concerning s 13(a),[156] it should not be applied in this case. Moreover, Mr Vlahos relies on the decision in McDonald v Legal Services Commissioner (No 2),[157] however that decision did not concern s 13(a) but s 15(3), which is expressed in different terms.
[156] Kracke [109]–[110].
[157] [2017] VSC 89 [30]–[36] (Bell J). Cited in Vlahos Amended Charter Submissions p 35, footnote 24.
119 This is a case in which onus of proof is important. Mr Vlahos bears the onus of establishing that s 13(a) is engaged because there is a prima facie arbitrary interference with his privacy. It is not sufficient to submit that the onus should be shifted onto the public authority to demonstrate engagement of the right. To the extent that he relies on authorities concerning s 15(3) of the Charter, these authorities are not binding in regard to the proper construction of s 13(a) of the Charter.
120 Turning to the question of whether there is an arbitrary interference established on the evidence, in my opinion, even accepting the Vlahos version, the right in
s 13(a) is not engaged because there is no evidence of any ‘arbitrary interference’ with Mr Vlahos’s privacy within the meaning of that expression under the Charter. This is for the following reasons:
(1) There was no ‘interference’ because there is no direct evidence anyone overheard any part of the assessment that occurred, and to the extent there is any circumstantial evidence of this, such as the other prisoner raising his hand to Mr Vlahos in what Mr Vlahos took to be ‘a gesture of apology for interrupting or being present’ when he was upset,[158] this is insufficient for me to draw any reasonable inference favourable to Mr Vlahos’s case on the balance of probabilities.
[158] See Vlahos Affidavit [14].
(2) Mr Vlahos cannot give evidence of what someone else heard and no witness was called to support his version of any of the alleged interruptions and to give evidence they overheard something that was said during the assessment.
(3) On the Vlahos version, those who entered the area kept their distance from the assessment. Their presence in the area was either very brief (in the case of the guards moving between doors) or they were making noise (in the case of the cleaners and prisoners).
(4) At the end of his evidence, Mr Vlahos conceded that there was so much noise that he would not have been overheard by anyone else at any stage.
(5) The presence of other people entering the room does not give rise to an event that may properly be described as ‘capricious or unjust’. The circumstances of people entering the room was entirely beyond Mr Drake’s control, and yet it is his conduct that is said to have arbitrarily interfered with Mr Vlahos’s privacy. Mr Drake did not invite anyone to enter the room. Admittedly, whether other people entered the room was entirely ‘unpredictable’. However, in my opinion this is an insufficient basis to find in Mr Vlahos’s favour on the Charter issue.
121 Likewise, if I were to accept the Drake version, there is no ‘arbitrary interference’ established on the evidence. This is for the following reasons:
(1) There was no ‘interference’ because there is no evidence, direct or indirect, anyone overheard any part of the assessment that occurred.
(2) Mr Drake’s evidence regarding the so-called ‘interruptions’ was that there were fleeting moments in which a door opened, and footsteps were heard, followed immediately by a door closing. I accept Forensicare’s submission that properly understood, these moments are not interruptions in any real sense as they lasted only a few seconds and did not interfere with the assessment, which continued unhindered. No one spoke to Mr Drake or Mr Vlahos, nor did either of them speak to anyone else during the assessment. At no time did anyone enter the assessment room from Door A (located near the table at which they were seated) or Door E (the only other door in the space).
(3) The location of the assessment did not affect the rapport between Mr Vlahos and Mr Drake or affect the validity of the assessment.
(4) The so-called ‘interruptions’ did not actually interrupt the assessment.
(5) The room Mr Vlahos and Mr Drake were in was large and they were seated in one corner of that area.
(6) I accept Forensicare’s submission that in circumstances where no person approached Mr Drake and Mr Vlahos and where the substance of what they were saying could not be overheard, the alleged ‘interruptions’ were no more intrusive than the ‘interruption’ of a person walking past a window. In particular, a person looking through a window would be able to observe if a person was showing signs of distress.
(7) There was nothing deliberate or capricious in Mr Drake’s conduct. To the contrary, on his version Mr Drake actively monitored the privacy conditions in the room and deliberately sought to ensure the space was private while he conducted the assessment. The reasons why a prison officer may have entered the room are entirely unknown and cannot be attributed to Mr Drake in the manner Mr Vlahos asserts.
122 Moreover, I accept Forensicare’s submissions that if I were to adopt the approach urged by Mr Vlahos and treat the limitation on the privacy right in s 13(a) as ‘coextensive with s 7(2)’, there was still no arbitrary interference with Mr Vlahos’s privacy.
Right to Humane Treatment when Deprived of Liberty
123 I next turn to the question whether there was a breach of Mr Vlahos’s right to humane treatment when deprived of liberty. Section 22(1) of the Charter states: ‘[a]ll persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person’. This right seeks to guarantee ‘a special right for persons who are vulnerable and whose civil and political rights are compromised because of their imprisonment or detention’.[159] The right mandates ‘good conduct’ for persons detained.[160]
[159]Castles 166 [93].
[160] Ibid 167 [99].
124 However, the right in s 22(1) of the Charter does not protect against inevitable or unavoidable restrictions in a closed prison environment. As Emerton J opined in Castles v Secretary to the Department of Justice:[161]
Prisoners have been deliberately removed from the community and deprived of their liberty in accordance with well-established sentencing principles. As a result, for the period of their imprisonment, they are largely deprived of their freedom of association and, to a significant extent, their autonomy. Hence, although prisoners do not forgo their human rights, their enjoyment of many of the rights and freedoms enjoyed by other citizens will necessarily be compromised by the fact that they have been deprived of their liberty.[162]
[161] (2010) 28 VR 141.
[162] Ibid 167 [99].
125 Emerton J further observed that a necessary consequence of the deprivation of liberty was ‘[r]ights and freedoms which are enjoyed by other citizens will necessarily be “curtailed”, “attenuated” and “qualified” merely by reason of the deprivation of liberty’.[163]
[163] Vlahos Amended Charter Submissions [147].
126 The right is modelled on Article 10(1) of the ICCPR,[164] about which the United Nations Human Rights Committee has said:
Article 10(1) requires that persons deprived of their liberty continue to enjoy all of their Convention rights, subject to the restrictions that are unavoidable in a closed environment.[165]
[164] See Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill, p 17.
[165] United Nations Human Rights Committee General Comment 21, Article 10 (Humane Treatment of Persons Deprived of their liberty) [3] available at Riordan J observed in De Bruyn v Victorian Institute of Forensic Mental Health,[166] ‘not every act which causes inconvenience, distress or even pain is inhumane; and not every act which limits the rights and freedoms of individuals can be said to be made without respect for the person’s dignity’.[167] I agree with Forensicare’s submission it is important to evaluate the relevant circumstances.
[166](2016) 48 VR 647.
[167] Ibid 691 [127].
128 In my opinion, accepting the Vlahos version, the only circumstance in which the right would be engaged is if I were to find Mr Vlahos was subjected by Forensicare to treatment which caused him to suffer distress over and above any hardship or constraint resulting from his incarceration that can properly be said to have been treatment inconsistent with his right to be treated with humanity and respect for his inherent dignity as a person. As I earlier observed, not every act which causes distress is inhumane and not every act which limits a person’s rights — in this case, privacy — can be said to be done without respect for a person’s dignity.
129 In my opinion, it is clear Mr Vlahos’s case concerning the engagement of s 22 of the Charter relies on the same matters with respect to the alleged breach of privacy under s 13 of the Charter.[168] He does not submit that s 22 is engaged other than by the same matters said to engage the privacy right, that is, ‘arbitrary interreference with a prisoner’s privacy during a mental health assessment for the purpose of sentencing unrelated to that purpose.’[169] It follows, since Mr Vlahos has failed to make out his case under s 13 of the Charter, his case under s 22 must fail for the same reasons.
[168] Vlahos Amended Charter Submissions [147].
[169] Ibid [148].
130 Moreover, as Forensicare correctly submits, the treatment Mr Vlahos complains of is not treatment imposed by the public authority imposing his detention (that is, the Secretary) or managing it (that is, Corrections Victoria or the Governor of MAP). Most of the matters complained of were simply not within Mr Drake’s control; for example, where he would conduct the assessment, whether he could move to another room or place, and whether he could prevent anyone entering the room.
131 While on his version, Mr Vlahos also complains he was persistently ignored by Mr Drake when he objected to the assessment space, was upset about the place where the assessment was held and he was seen by other prisoners in an upset state, I am not satisfied to the required standard any act of Forensicare, or Mr Drake, imposed a level of distress on Mr Vlahos over and above any distress resulting from the fact that Forensicare was conducting an assessment in prison. In my opinion, the fact other prisoners could see him upset is not distress over and above distress resulting from the fact Mr Vlahos was in prison. Any distress displayed by Mr Vlahos was as a consequence of the assessment itself. Other prisoners may have seen him upset in a telephone conference room. In my opinion, these are not matters that can properly be said to be treatment that was not ‘humane’.
132 As to whether Mr Drake’s alleged conduct in persistently ignoring Mr Vlahos when he objected to the assessment space was contrary to his inherent dignity, I find this conduct does not rise to the threshold required for the engagement of s 22(1).
133 In my opinion, Mr Vlahos has not identified any matter that he seeks to attribute to Mr Drake that is not attributable to the assessment being conducted in a prison. On the Vlahos version, none of the alleged ‘interruptions’ were attributable to Mr Drake. He had no control over who entered the room. He did not choose where to sit during the assessment and had no power to insist on the assessment being moved to another room. He did not know whether alternative rooms were available, and it was not his decision whether or not to move to another space. Moreover, it is apparent any alternative spaces would not have perfect privacy conditions in any event.
134 The right in s 22(1) of the Charter is not engaged in this proceeding because whilst Mr Vlahos is clearly a person who is deprived of his liberty, the only allegations made in support of his case on this aspect of the Charter issue are those relating to the circumstances in which the assessment commenced and continued at the MAP. Alternatively, if it was engaged, the right was not interfered with by Mr Drake.
135 Finally, if I were to accept the Drake version, the right is plainly not engaged.
136 Given my findings and reasons, it is unnecessary for me to proceed to consider whether any Charter right has been limited and, if so, whether any such limitation was reasonable and demonstrably justified.
137 Accordingly, I find Mr Vlahos has not established any breach of the Charter and I am not satisfied Forensicare has acted unlawfully under s 38(1). The Charter application is dismissed.
138 I will hear the parties on the question of costs.
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