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Procedure after an application is made

Information about the process for applying to court for an order for supervision or detention.

Notification of the application

Prisoners may often not be aware that an application for an order will be made until a few weeks or even days before the first mention date.

See Forms.

Sometimes the prisoner has time to get legal advice and sometimes not. If the mention is listed before the prisoner is able to get legal advice, the court will adjourn. The court prefers that all respondents are represented as the matters are quite complex.

If a prisoner calls about an application for a supervision or detention order, please take as many details as possible and then refer them to Victoria Legal Aid's Indictable Crime team.

Initial psychological assessment

A psychologist from the Department of Justice and Community Safety (DJCS) will assesses the prisoner. However, sometimes the prisoner does not know why they are being assessed.

If a prisoner is calling because the psychologist wants to examine them, tell the prisoner they should ask:

  • what is the purpose of the assessment
  • who is requesting the assessment
  • what the assessment will cover.

If the psychologist refuses to answer these questions the prisoner should get a lawyer. The psychologist's instructor should then contact the prisoner's lawyer to speak with them about the proposed assessment.

Assessments are done in Melbourne and the prisoner is usually transferred to Port Philip. If the prisoner is at another prison they can be assessed by video-link.

See Transport and video links—Video link-ups.

Paperwork for the application

Some time after the assessment the prisoner will receive:

  • a bundle of documents that includes an 'Application for a supervision order' and a 'Notice to offender of application for a supervision order'
  • Supervision Order Assessment Report.

If the prisoner will finish their sentence before the application can be heard, they will also receive an 'Application for an interim supervision order' and A 'Notice to offender of application for an interim supervision order'.

See Forms.

Parole

Applications can be made while the prisoner is on parole as this is considered to still be part of their sentence.

See What is parole?

Steps that the lawyer will take

Refer the prisoner

After getting as much detail as possible from the prisoner, the prisoner should be referred to Victoria Legal Aid's Indictable Crime team.

First interview

The lawyer conducting the first interview will need to find out:

  • when the first mention at the County Court in Melbourne is listed
  • whether the client is appearing by video or not.

Get some idea about whether the client intends to consent to, or oppose the application:

  • the supervision order/interim supervision order
  • the conditions of the order.

The decision about whether or not to consent to an interim or final order is one that should be made only after careful consideration.

Prepare the psychologist report

Speak to the psychiatrist who will be doing the assessment and find out their fee. There is generally no problem with getting a grant of legal assistance for a higher fee as there is a lot of material for the psychiatrist to read when the report will be prepared by so that you have some idea of filing and hearing dates.

Fill in a blue grant of legal assistance application. This will have to be sent to Victoria Legal Aid along with a covering memo as it is not a Simplified Grants Procedure matter.

Brief counsel

The lawyer will brief counsel (a barrister) as early as possible. The lawyer will find out what instructions to give to counsel and discuss what needs to be done. This is especially important if the client is opposing the supervision order and the lawyer is considering Victorian Human Rights and Responsibilities Charter 2006 arguments.

See Charter of Human Rights and Responsibilities Act 2006 (Vic)(opens in a new window).

Counsel should be briefed before the first mention to find out how long counsel will need to prepare responses and/or Charter notices. This will help when deciding filing and hearing dates. If the lawyer does not know how much time is needed to prepare, there is a risk that an extension of time may be needed later and possibly even to vacate hearing dates.

The Department of Justice and Community Safety (DJCS) are often reluctant to agree to any changes after the dates have already been set, especially as it is getting harder to get hearing dates within a reasonable period of time and within the time allowed (4 months) for an interim supervision order.

See s. 81Serious Offenders Act 2018 (Vic)(opens in a new window).

Contact the DJCS representative

Let the DJCS representative know who is acting as early as possible.

DJCS will:

  • forward a copy of proposed conditions for interim supervision order (if applicable)
  • discuss suitable filing and hearing dates with the lawyer.

The DJCS representative can then prepare a general form of order for the judge that will:

  • set out interim and/or final hearing dates
  • set out dates that materials have to be filed by and served by both parties.

Read the DJCS assessment carefully

The lawyer should go through the DJCS assessment report carefully with the client. This will help with drafting the letter to the psychiatrist and instructions to counsel. Look carefully at the proposed conditions and discuss them with the client. The proposed interim conditions are sometimes different from the proposed final conditions.

After getting the reports and speaking with counsel, the lawyer will need to prepare a written response to the proposed conditions by itemising each of the conditions and your responses to them.

Get instructions from the client about suppression

The following are suppressed under s. 277 of the Serious Offenders Act 2018 (Vic):

  • reports
  • evidence given in a proceeding
  • identification of persons giving evidence (other than the client)
  • identification of victims.

There may be reasons for the client’s identity and address to be suppressed as well. The court may not automatically do this so the lawyer will have to be prepared to argue for suppression if appropriate.

See ss. 276, 277, 279, 280—Serious Offenders Act 2018 (Vic)(opens in a new window).

Copying material for the psychiatrist

When the lawyer gets the DJCS material, they will need to send a copy to the psychiatrist as well as counsel. The accompanying affidavit is usually several lever arch folders and the psychiatrist may borrow the lawyer's copy or counsel’s copy (to save photocopying costs). The psychiatrist will return the material after the report has been prepared.

More information

Legislation

Serious Offenders Act 2018 (Vic)

  • s. 81—period of interim detention order
  • ss. 276, 277—offence to publish certain information
  • s. 279—restriction on identification of offender
  • s. 280—matters to which the court must have regard

See Serious Offenders Act 2018 (Vic)(opens in a new window).

Serious Offenders Regulations 2018 (Vic)

  • Form 1—Notice to Offender of Application for a Supervision Order

See Serious Offenders Regulations 2018 (Vic).(opens in a new window)

Charter of Human Right and Responsibilities 2006 (Vic)

See Charter of Human Rights and Responsibilities Act 2006 (Vic)(opens in a new window).

Updated