Attorney-General (SA) v Carter - [2025] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v CARTER
[2025] SASC 157
Reasons for Ruling of the Honourable Chief Justice Kourakis (ex tempore)
11 April 2025
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - CONTROL, EXTENDED SUPERVISION, PREVENTATIVE DETENTION AND CONTINUING DETENTION ORDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION
This is an application by the Attorney-General for a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The Attorney-General, in the course of the hearing, withdrew the application.
Held:
1.The Uniform Special Statutory Rules of this Court require the service of an application unless it is one that can be made ex parte. There is nothing on the face of s 9 of the Act that conditions the power to make an interim supervision order on service of an application or on presence in court. Whether such a condition should be expressly addressed by the Act is a matter for Parliament. This Court may also consider an amendment to its rules concerning the necessity for service of an application when a person is at large.
2.Prima facie, s 15(5) of the Act authorises continued detention in accordance with a warrant issued and makes no provision for the expiry or termination of that warrant upon the expiry of the supervision order. Whether this interpretation should be clarified is a matter for Parliament.
3.Subject to any pending amendments to the Act, there is no power to impose a continuing detention order upon the expiry of a supervision order.
4.The membership of the Parole Board and its staffing arrangements might mean that there is no system in place to bring the expiry of a supervision order, in respect of which a warrant for breach has been issued, to the attention of staff. If there is no such system, then the establishment of an effective system to bring that circumstance to the attention of a member or officer of the Parole Board who can act upon it should be considered.
5.It is the experience of this Court that that it is common for there to be a delay of some months between apprehension and the first Parole Board hearing. The delay suggests that the expiry of supervision orders is not being actively monitored. It would be a matter of great concern if a member of the Parole Board or its staff knew that the first hearing was listed approximately three months after the extended supervision order had expired.
6.Section 15(1)(a) of the Act empowers the Board to summon a person before it. If the pressure of the work of the Board is such that delays of some months are necessary, then the Board may wish to consider whether or not a breach is such as to require an arrest, or whether the person can be summonsed. The Board then may consider prioritising its hearings to deal with suspected breaches on which the person has been arrested.
7.There is no explicit requirement for the Parole Board to proceed expeditiously to hold a hearing pursuant to s 17 of the Act. Therefore, there is a gap between the arrest, detention provisions and the Parole Board hearing provisions which leave unregulated how quickly the Parole Board should act. The Parole Board may wish to consider this and the potential statutory implication that a matter is to be heard as soon as reasonably practicable. It is a matter that the Attorney-General may consider, because if there is such an implication, it may have a consequence as to the lawfulness of detention, which could attract liability on the State.
8.The breach of a condition is not the commission of a criminal offence. Some breaches of a condition might suggest the public is at risk from the person supervised, others may not, and the degree of risk may vary. These are matters that need to be considered in the listing of the hearings by the Board.
9.Submission was advanced that the allegation of breach is made in respect of terms and conditions which were not known to the respondent. That raises a question as to whether the word 'breach', used in ss 15, 17 and 18 implies any knowledge, belief or understanding of the terms of the order. Parliament may wish to consider whether it should be addressed. If it does, it will need to balance concerns about the protection of the community against the traditional common law concept concerning the importance of a person understanding the terms and conditions for which any proceeding is brought against them by way of breach.
10.In respect of s 10(4) of the Act, it is simply an important prudential requirement to have the terms explained with the authority of a judicial officer, but even that obligation on the Court implies a certain level of mutuality. The condition cannot sensibly be complied with by a judge if the respondent has taken steps to avoid coming before the Court or is at large. Given the nature of the Act and its protective purpose, the Parliament might wish to consider whether to expressly address this issue.

Criminal Law (High Risk Offenders) Act 2015 (SA), referred to.

ATTORNEY-GENERAL (SA) v CARTER
[2025] SASC 157
Criminal: Application
Kourakis CJ:

This matter was listed before me to consider an application that the Court make a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’).
The Attorney has withdrawn that application today. The circumstances which led to the application being made exposed certain issues arising out of a construction of the Act and its application. I propose to make some observations for the purpose of bringing those issues to the attention of those persons and institutions who are responsible for the administration of the Act and to the Legislature which may, as it sees fit, consider amendments to the legislation to address the issues that I raise.
The respondent was sentenced to 11 years and two months imprisonment on 5 July 2010 on his conviction of an offence of rape. He was first released on parole on 25 February 2019. There followed several periods of release on parole followed by a return to custody for breaches of parole. On 12 May 2022, an interim supervision order was made. It was a term of that interim supervision order that he be electronically monitored. On 5 September 2022, the respondent removed the monitoring equipment. He was arrested but then re-released on 23 November 2022 on an extended supervision order, for a period of two years, to 22 November 2024.
On 23 February 2024, the respondent removed his electronic monitoring bracelet and absconded. He was arrested for that breach on 3 June 2024 but then released again on 24 October 2024. On 28 October 2024, DCS was informed that a Parole Board warrant was issued over the weekend of 27-28 October for suspected breaches of certain conditions alleged to have occurred on 27 October 2024. On the day after the warrant was issued it was confirmed that his monitoring bracelet had been removed on 27 October.
Dispensation of Service Requirements when Respondent Not Found
On 20 November 2024, whilst Mr Carter was still at large, Justice Hughes made an interim supervision order on the application of the Attorney. Justice Hughes proceeded to make the order in his absence. The application for an interim supervision order had not been served on him. The Uniform Special Statutory Rules of this Court require the service of an application unless the application is one which can be made ex parte. That is not the case with an application pursuant to s 9 of the Act.
It is implicit from the circumstance that Justice Hughes proceeded to make the interim supervision order and that her Honour dispensed with compliance with the rule requiring service. Even if I am wrong about that, there is nothing on the face of s 9 which conditions the power to make an interim supervision order either on service of an application or on presence in court and, indeed, Mr Greeves for the respondent does not contend that the order was invalidly made. Nonetheless, whether that question should be expressly addressed by the Act is one which Parliament may wish to consider. This Court may well consider an amendment to its rules concerning the necessity for service of an application when a person is at large.
Nexus Between Expiry of Parole Board Warrant and Expiry of ESO
A question arises from the circumstances that I have just described whether the warrant of the Parole Board, issued on 26 October 2024, expired with the expiry of the extended supervision order. That is a question which I need not decide, even if the application had been pursued. I certainly do not need to decide it now that the application has been withdrawn. Nonetheless I draw attention to s 15(5) of the Act which, on its face, authorises continued detention in accordance with a warrant which has been issued, and makes no provision for the expiry or termination of that warrant upon the expiry of the supervision order, the suspected breach of which founded the issue of the warrant.
On its face, sub-s (5) appears to be broad enough to authorise that detention. Of course, there may be arguments about implications limiting that statutory authorisation but, on its face, it appears to have that effect.
Again, it is a matter for Parliament whether it wishes to clarify that. However, the apparent authorisation of the continued detention pursuant to the warrant by sub-s (5), raises other questions and issues which I now mention so that the Parole Board may consider them when exercising its powers.
Considerations on the Exercise of the Parole Board’s Jurisdiction Regarding Expiry of an ESO
When the respondent was taken into custody the Parole Board ought to have known of the expiry of the extended supervision order, which the Respondent was alleged to have breached, and that therefore no effective period of detention could be imposed by way of continuing detention order.
I am informed by Ms Bulling that amendments have been made to the Act, but not yet proclaimed, which would allow a continuing detention order to be made in the aforementioned circumstances where an interim or further extended supervision order has been made. But until the Act is proclaimed to come into operation, there is no power to impose a continuing detention order upon the expiry of a supervision order.
That knowledge being attributed to the Parole Board, a question arises as to how it should exercise its powers under the Act. I understand that the membership of the Parole Board and its staffing arrangements might mean that there is no system in place to bring the expiry of a supervision order, in respect of which a warrant for breach has been issued, to anyone's attention. If there is no such system, then the establishment of an effective system to bring that circumstance to the attention of a member or officer of the Parole Board who can act upon it should be considered.
Bringing such a notification to the attention of either a member of the Parole Board or Parole Board staff is important for several reasons. First, s 15(9) of the Act empowers the Parole Board, if it thinks there is good reason to do so, to cancel a warrant issued pursuant to s 15. The circumstance of the expiry of a supervision order, at least until the Amending Act is proclaimed, would appear to be a very good reason to cancel a warrant.
Second, the Parole Board is empowered under s 17(1)(b) to direct that a person be released from custody. That power could be exercised even if the Parole Board were satisfied that the person detained had breached a condition of the extended supervision order if that order had since expired. In that circumstance the Parole Board would direct the release from custody because no continuing detention order in respect of that breach could be made. Therefore, no occasion could arise for a direction that the person be detained in custody pending attendance before the Supreme Court for a determination as to whether a continuing detention order should be made. Equally, because the supervision order had expired, no occasion for detaining the person in custody in order to ensure that person's compliance with the condition of the order could arise.
Those observations lead me to mention another matter. The respondent was apprehended on 3 January 2025 pursuant to the warrant issued on 26 October 2024. The hearing was listed for April 2025. That suggests to me that the question of the expiry of supervision orders is not being actively monitored. It would be a matter of great concern if a member of the Parole Board or a member of its staff knew that the first hearing was listed many months after the extended supervision order had expired.
If there were a system for bringing this to the attention of the staff or a member of the Parole Board in place, I would have thought that it would be listed much more quickly, because there was no need for an inquiry as to whether the suspected breach had in fact been committed. Moreover, Mr Greeves has submitted to me today that it is not uncommon, at least, for there to be a delay of some months between apprehension and the first Parole Board hearing. Indeed, it is the experience of this Court that that is common.
Unlike statutory provisions for arrest for criminal offences, there is no explicit requirement for the Parole Board to proceed expeditiously to hold a hearing pursuant to s 17 of the Act. The apprehension or arrest and detention provisions simply allow the apprehension of a person suspected of breaching a condition of an extended supervision order to be arrested for the purposes of bringing that person before the Parole Board.
Therefore, there is something of a gap between the arrest, detention provisions and the Parole Board hearing provisions, which, as I say, leave unregulated, how quickly the Parole Board should act.
In this context, I notice that there is a power in s 15(1)(a) of the Act to summon a person to attend before the Board. If the pressure of the work of the Board is such that delays of some months are necessary, then the Board may wish to consider whether or not a breach is such as to require an arrest, or whether the person can be summonsed. The Board then may consider prioritising its hearings to deal with suspected breaches on which the person has been arrested, ahead of those on which a person is simply summonsed.
Mr Greeves has made persuasive submissions for the implication of a term in s 17 of the Act requiring the Board to hear a matter as soon as reasonably practicable. This is not the occasion to determine that issue. However, it is a matter that the Board may wish to consider when ordering its work, and it is a matter that the Government and the Attorney-General in particular may consider, because if there is such a term, it may have a consequence as to the lawfulness of someone's detention, which of course could throw liability back on the State.
Ideally, the Parole Board would be adequately resourced to hear all matters promptly. The breach of a condition is not the commission of a criminal offence. Some breaches of a condition might suggest the public is at risk from the person supervised, others may not, and the degree of risk may vary. These are all matters that need to be considered in the listing of the hearings by the Board. Ideally, the Board should be resourced to attend to all of those matters reasonably promptly.
The final observation I wish to make concerns the application which was brought before me. It commenced with the issue of a warrant for the detention of the respondent on 31 January 2025 for breach of the interim supervision order made by Justice Hughes on 20 November 2024. The written submissions made by Mr Greeves, before the application was withdrawn, make the point that the allegation of breach is made in respect of terms and conditions which were not known to the respondent. That raises a question as to whether the word 'breach' which is used in ss 15, 17 and 18 implies any knowledge, belief or understanding of the terms of the order, or whether it is to be understood strictly in the sense of an infraction, violation or transgression - words which do not necessarily imply a knowledge, understanding or belief as to the terms.
Again, that is a question I do not need to consider because of the withdrawal of the application but Parliament may wish to consider whether it should be addressed. If it does so, it will need to balance concerns about the protection of the community against the traditional common law concept to which Mr Greeves made reference in his submissions concerning the importance of a person understanding the terms and conditions for which any proceeding is brought against them by way of breach.
Again, in this context, I mention the obligation in s 10(4) of the Act on a judge to explain the terms and conditions of a supervision order to a respondent. That may be a contextual indication that the meaning of the word 'breach' extends beyond a mere transgression or violation and implies some knowledge. In my view, that is doubtful, although it is plainly open to argument.
A provision like s 10(4) is desirable because extended interim supervision orders limit the freedom of movement of a respondent and place them at risk of continuing detention for breach. It is simply an important prudential requirement to have the terms explained with the authority of a judicial officer, but even that obligation on the Court implies a certain level of mutuality.
The condition cannot sensibly be complied with by a judge if the respondent has taken steps to avoid coming before the Court. That is the position in this case. The respondent was at large at the time. Equally, a provision like that can have no effect if the respondent deliberately takes steps to avoid hearing what a judge has said. Given the nature of the Act and its protective purpose, the Parliament might wish to consider whether or not to expressly address this issue in a manner it sees fit.