In the matter of a Major Review of Derek Ernest Percy  VSC 179 (31 March 2010)
Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) so that he could be transferred from Port Phillip prison to a forensic psychiatric facility. Mr Percy asked Coghlan J, in making his decision, to have regard to the Charter of Human Rights and interpret the Act in a way that is compatible with human rights.
The Attorney-General argued the provisions of the Act already recognised the human rights of Mr Percy and the Charter was therefore not engaged. In making this argument, the Attorney-General relied on s 39 of the Act which states:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Coghlan J was persuaded by the Attorney-General's argument and held that, provided he acted in accordance with s 39 of the Act, he would be recognising and having regard to Mr Percy’s human rights.
With respect, this analysis stands in contrast with the more rigorous approach required following the Victorian Court of Appeal's decision in R v Momcilovic  VSCA (17 March 2010) and failed to adequately to consider whether any breach of Mr Percy's human rights under the Charter was demonstrably justified as required by s 7 of the Charter.
On 17 April 1970, Mr Percy was found not guilty of the murder of a 12 year old girl on the grounds of insanity. He was ordered to be detained until ‘the Governor's pleasure became known’ and remained in such detention until 1998 at which time the Act came into effect and he was deemed to be the subject of a custodial supervision order.
As required by the Act, a major review into Mr Percy's custody was undertaken in 2009 and Mr Percy asked His Honour to consider:
- whether his right to humane treatment when deprived of liberty (protected under s 22 of the Charter) is and would continue to be breached by his present and any further incarceration at Port Phillip Prison as a result of the extension of his existing custodial supervision order;
- whether his present or any further incarceration at Port Phillip Prison as a result of the extension of his existing custodial supervision order is and would be a continuing unreasonable limitation of his rights given the Department of Human Services, the Office of Corrections and the Department of Justice have an obligation to provide the least restrictive means available to achieve the purpose of the Act (as required by s 7 of the Charter); and
- whether the Act should be interpreted in a way that is compatible with human rights.
Mr Percy did not seek a declaration of inconsistency with the Charter.
Relying on s.39 of the Act, the Attorney-General argued the provisions of the Act already recognised the human rights of Mr Percy and the Charter was therefore not engaged.
His Honour accepted that s 32 of the Charter required him to interpret the provisions of the Act in a way that was compatible with human rights.
To that end though, His Honour was persuaded by the Attorney-General's argument and held that, provided he acted in accordance with s 39 of the Act, he would be recognising and having regard to Mr Percy’s human rights, thereby discharging his obligations under s 32 of the Charter.
In deciding whether Mr Percy’s detention was consistent with s 39 of the Act, His Honour noted the most powerful argument in favour of Mr Percy’s application was that a non-convicted person, if he was to be detained, should be detained in a therapeutic environment in a hospital.
However, His Honour was not satisfied the detention in a forensic psychiatric facility would be less restrictive than being held in prison. Further, there was no reason to believe the quality of treatment Mr Percy would receive in the forensic psychiatric facility would be more advantageous to Mr Percy than that available in the prison system.
Accordingly, the custodial supervision order was confirmed and the application to have the place of custody varied was denied.
Application of the Victorian Charter
Whist His Honour acknowledged the application of s 32 of the Charter and his obligation to interpret the provisions of the Act in a way that was compatible with human rights, he failed, with respect, to employ the methodology set out by the Victorian Court of Appeal in Momcilovic when determining whether s 39 of the Act breached any of Mr Percy's Charter rights.
Instead of (a) interpreting the relevant provision by applying s 32 of the Charter in conjunction with other rules of interpretation, (b) considering whether that interpretation breached a human right protected by the Charter, and (c) considering whether any limitation was demonstrably justified, His Honour simply stated that s 39 of the Act recognised Mr Percy's human rights and, provided His Honour acted in accordance with s 39 of the Act, His Honour would satisfactorily discharge his duties under the Charter. With respect, this does not accord with the Court of Appeal’s view that the Charter requires courts and tribunals to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’.
His Honour justified his approach by stating that, even if a provision of the Act engaged Charter rights, in carrying out the balancing exercise required by s 7 of the Charter, the presence of s 39 would lead to the same conclusion. Again, this is incompatible with the Court of Appeal’s approach to s 7 which stresses that any limitations on rights should be demonstrably justified with clear, cogent and persuasive evidence.
The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2010/179.html.
Susanna Kirpichnikov is a lawyer with Lander & Rogers