Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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9.121 In Re PL, Justice Cummins said that it is in the public interest that the progressive
rehabilitation of the person subject to the supervision order is not defeated. 146 However,
his Honour continued by saying:
It follows that suppression orders should not be granted, or come to be granted, routinely.
The powerful and fundamental value of the community’s knowledge of the judicial
process in its midst should not be whittled down by a developing habit of suppression.
… The degree of likely negative impact [on the person subject to the supervision order]
needs to be examined in each case. The existence of negative impact will not of itself
justify a suppression order. Sufficient negative impact needs to be established to justify
departure from the fundamental that courts are open. 147
9.122 There are a number of reasons a suppression order could be important in a CMIA
proceeding, including:
• to prevent any setbacks in the treatment and recovery of the person subject to the
supervision order due to publicity 148
• to avoid the stigma that people with mental illness face, particularly when connected with
a qualified finding of guilty or a finding of not guilty because of mental impairment 149
• to respect the privacy of the victims involved and not deter victims from participating
in proceedings 150
• the successful reintegration of the person into society. 151
9.123 On the other hand, there are powerful reasons for courts to be open for public scrutiny,
including media scrutiny. The public is entitled to know what decisions are being made by
courts and the reasons for those decisions. Further, matters determined under the CMIA
usually involve very significant harm to victims, in which the public has a legitimate interest.
9.124 The Commission’s preliminary research indicates that the practice of granting suppression
orders differs between judges. At present, the Commission has little information on
the issues that may arise in relation to granting suppression orders, as well as any issues
in relation to compliance with and enforcement of these orders. The Commission is
interested in gathering information about any issues that may exist in this area.
9.125 The Commission is aware that the Department of Justice is developing some proposals for
reform to the law on suppression orders. However, suppression orders under the CMIA
do not fall within the ambit of these proposals.
Questions
105 What matters should the court consider when making suppression orders
106 What issues arise concerning suppression orders under the CMIA
107 What is the appropriate balance between therapeutic considerations (pointing
to suppression) and open proceedings (pointing to publication)
146 Ibid [27].
147 Re PL [1998] VSC 209 (15 December 1998) [27].
148 XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009) [55].
149 See, eg, the expert evidence in Re Percy [2004] VSC 67 (2 March 2004) [14].
150 See, eg, Re Percy [2004] VSC 67 (2 March 2004) [20], [30], [58].
151 Re Percy [2004] VSC 67 (2 March 2004) [40].
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