In the matter of s35 Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 In the matter of major review of: Derek Ernest Percy [1998] VSC 90 (2 October 1998)

Supreme Court of Victoria|1998-10-02|Before: Eames, J.

For the reasons which I have given, however, the need to require the delegate to attend court does not arise, because I am satisfied that Mr Percy's status and location should not be altered.

By s.40(2)(d) I am required to consider any reports from the reviewee's family members, and also from victims of the offence. Section 42(1) provides that I should do so for the purpose of assisting counselling and treatment processes for all people affected by an offence and assisting the court in determining any conditions which it might impose on any order. By s.42(3) the report of a victim is to give particulars of injury, loss and damage suffered by reason of the offence. I have received a number of moving reports from victims of the events surrounding the tragic death of Elizabeth Tuohy and I have had regard to the anxiety therein expressed. In essence, all of the victim reports express anxiety that, if released, Mr Percy might commit further offences.

I conclude that the safety of members of the public would be seriously endangered were Mr Percy to be released on a non-custodial supervision order and, pursuant to s. 35(3)(a)(ii), I confirm the custodial supervision order under which he is confined to custody in a prison.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

In a separate ruling, delivered on 18 September 1998, I held that the standard of satisfaction, as to serious endangerment, which must be attained by me, if the supervision order is not to be reduced to a non-custodial supervision order, is that reached on the balance of probabilities but - having regard to the seriousness of the matters in issue - applying the principles discussed by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362.

In considering whether it is appropriate to draw the inference that the aberrant sexual and sadistic fantasies to which Mr Percy was prone until 1971 continued thereafter, and are indulged by him today, it is appropriate, in my opinion that I have regard to the fact that Mr Percy chose not to give evidence before me. Whilst there is no onus of proof resting on Mr Percy, the evidence of the psychiatrists, which I have discussed, above, suggests that it is likely that the fantasies were deeply entrenched by 1971, and would have continued thereafter. The evidence of the psychiatrists satisfies me that if such fantasies are held today, and are not controlled, then Mr Percy would represent a serious danger to the public should he be released. The one person who is able to say whether he does or does not hold those fantasies, today, is Mr Percy. Although he has stated to psychiatrists that he has not held the fantasies since about 1971, at the latest, he has absolutely resisted any attempts to allow them to test that assertion. He has declined to give evidence so that the assertion might be tested before me, notwithstanding the fact that I stated that in the absence of such evidence I would be likely to more readily draw an adverse inference against him as to whether he does retain his aberrant fantasy fixation. In those circumstances, the principles discussed by Mason CL, Deane and Dawson JJ in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, at 228, may be appropriately applied.

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