Butler v Attorney General (Qld) - [2018] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

Butler v Attorney General (Qld) [2018] QCA 243

PARTIES:

JOSEPH WILLIAM BUTLER
(appellant)
v
THE HONOURABLE YVETTE D’ATH, ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 5960 of 2018
SC No 2772 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 103

DELIVERED ON:

28 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2018

JUDGES:

Sofronoff P and Morrison JA and Jackson J

ORDERS:

1.   The appeal be allowed.

2.   The orders made on 9 May 2018 be set aside.

3.   The order of the Governor in Council dated 1 February 2018 be set aside.

4.   The matter be remitted to the Governor in Council to be determined according to law.

5.   The respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the appellant was convicted of sexual offences involving children between 1962 and 1970 – where he has been indefinitely detained since 1982 under s 18 of the Criminal Law Amendment Act 1945 (Qld) – where he applied for release under s 18(5)(b) and the Governor in Council determined he should not be released – where a statutory order of review of that decision was dismissed – where on appeal it was contended that as a matter of statutory construction, the question to be answered under s 18(5)(b) was whether, on the evidence before the decision-maker, the appellant was capable of controlling his sexual instincts in a proper manner – whether the Governor in Council erred by not addressing the relevant question

Criminal Law Amendment Act 1945 (Qld), s 18(5)(b)

Pollentine v Bleijie (2014) 253 CLR 629; [2014] HCA 30, followed
R v Kiltie (1986) 41 SASR 52, cited

COUNSEL:

S Keim SC, with R W Haddrick and S T Lane, for the appellant
S A McLeod, and G Del Villar, for the respondent

SOLICITORS:

Prisoners’ Legal Service for the appellant
Crown Law for the respondent

[1]THE COURT: Mr Butler is currently detained at The Park Centre for Mental Health at Wacol.[1] He has been at that facility since 1982 as a result of being indefinitely detained under s 18 of the Criminal Law Amendment Act 1945 (Qld).[2]
[1]We shall refer to this facility as “The Park”.
[2]We shall refer to this Act as the “CLAA”.

Mr Butler applied to be released from detention under s 18(5)(b) of the CLAA. On 1 February 2018 the Governor in Council decided that he not be released. Mr Butler sought a statutory order of review of that decision. It was dismissed by the learned primary judge,[3] and Mr Butler appeals from that decision.
[3]Butler v Attorney-General for the State of Queensland [2018] QSC 103.
General background
How Mr Butler came to be indefinitely detained for the last 48 years is not in issue.
Between 1962 and 1970…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCA 243
Decision Date: 28 September 2018

CaseChat Overview and Summary

Mr Butler, a man who has been indefinitely detained since 1982 under s 18 of the Criminal Law Amendment Act 1945 (Qld) due to convictions of sexual offences involving children, sought judicial review of a decision by the Governor in Council that he should not be released. The primary judge dismissed Mr Butler's application for a statutory order of review, and he appeals from that decision. The central issue in the appeal was whether the Governor in Council erred by not addressing the relevant question when determining Mr Butler's application for release. The relevant question, as contended by Mr Butler, was whether, based on the evidence before the decision-maker, he was capable of controlling his sexual instincts in a proper manner. The Court found that the Governor in Council did indeed err in not addressing the correct question. The Court held that the Governor in Council should have assessed whether Mr Butler was capable of controlling his sexual instincts in a proper manner, rather than focusing on the availability of support and supervision in the community. The Court concluded that the Governor in Council's decision was flawed as it did not properly consider the evidence and the statutory requirement to assess the offender's capacity for proper control over their sexual instincts. As a result, the appeal was allowed, and the matter was remitted to the Governor in Council to be determined according to law. The Court also ordered that the orders made on 9 May 2018 be set aside, and the order of the Governor in Council dated 1 February 2018 be set aside. Additionally, the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made on 9 May 2018 be set aside.

3. The order of the Governor in Council dated 1 February 2018 be set aside.

4. The matter be remitted to the Governor in Council to be determined according to law.

5. The respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

Mr Butler applied to be released from detention under s 18(5)(b) of the CLAA. On 1 February 2018 the Governor in Council decided that he not be released. Mr Butler sought a statutory order of review of that decision. It was dismissed by the learned primary judge,[3] and Mr Butler appeals from that decision.[3]Butler v Attorney-General for the State of Queensland [2018] QSC 103.General background How Mr Butler came to be indefinitely detained for the last 48 years is not in issue. Between 1962 and 1970 he was convicted of six sexual offences involving young males. The details of the events are no longer available, but they were described as “aggravated assault on a male child under the age of 14”. None of them individually attracted a long sentence, but the consequence was that in June 1970 an order for indefinite detention was made under s 18(3) of the CLAA. Until 1982 Mr Butler was detained in the Security Patients’ Hospital, and then from that time at The Park. Mr Butler has been the subject of a very high degree of supervision and control since his detention. In the last 48 years there is no evidence of inappropriate sexual behaviour, let alone offending. For a number of years during that time he has been permitted to have unsupervised access to the community, three days a week between the hours of 9 am and 2 pm. There is no evidence of any offending during that outside access. Not surprisingly Mr Butler is quite institutionalised. He is now about 80 years old and becoming increasingly infirm. He suffers from mild mental retardation but he does not suffer from any mental illness. He also suffers from a series of medical conditions, including: heart problems, including previous heart attacks; hypertension; type II diabetes; mild congestive cardiac failure; bladder cancer; extensive solar skin damage; osteoarthritis; cataracts; and declining kidney function. In addition he has to use bilateral hearing aids and because of recent falls he walks with a cane.Relevant provisions of the CLAA The CLAA provides for the indefinite detention of offenders convicted of sexual offences. The relevant provisions are found in s 18, which provides that where a person has been found guilty of an offence of a sexual nature a judge may direct that two medical practitioners (of appropriate qualification) inquire into “the mental condition of the offender, and in particular whether the offender’s mental condition is such that the offender is incapable of exercising proper control over the offender’s sexual instincts”: s 18(1)(a). If the medical practitioners report that the offender is so incapable, then the judge may direct that the offender “be detained in an institution during Her Majesty’s pleasure”: s 18(3). There has been a somewhat prolonged history to Mr Butler’s application for release under s 18(5)(b) of the CLAA. The process was initiated in September 2016, and reliance was placed on reports by Dr Aboud[4] and Dr Stedman[5]. That process culminated in the decision by the Governor in Council on 30 January 2017, that Mr Butler should not be released.[4]Dated 29 May 2015 and 2 August 2016: Appeal Book (AB) 60 and 59 respectively.[5]Dated 11 August 2016: AB 54.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Eventually, on 2 February 2018 advice was given that the Governor in Council refused Mr Butler’s release. Then, on 28 February 2018 a statement of the reasons for the decision was produced.The decision by the Governor in Council The Statement of Reasons[6] identified the two relevant sections of the CLAA, namely s 18(3) and s 18(5)(b). The relevant text of s 18(3) was set out, identifying the relevant question as whether the offender is incapable of exercising proper control over sexual instincts. The introductory part of the Statement of Reasons also recognised that release under s 18(5)(b) was unconditional release.[6]AB 154-157. The Statement of Reasons lists 13 separate facts as found on the evidence. They include No. 7:“Mr Butler has demonstrated a capacity to control his sexual impulses in the context of residing in an institutional environment, living according to communicated behavioural expectations and being prescribed anti-libidinal medication.” Findings No. 10 and 11 were that there was no evidence that Mr Butler had sexually reoffended against a child or adult in his years of detention, but that Dr Aboud strongly suggested that he not be permitted to have unsupervised access to children. The reasons for the decision were expressed in six paragraphs. Given that it is now contended that the Governor in Council asked itself the wrong question or applied the wrong test, it is appropriate to set out the reasons in full:“The Governor in Council made the decision for the following reasons:1.Despite the conclusions of Dr Aboud and Dr Stedman that Mr Butler has demonstrated that he is capable of controlling his sexual instructs (sic) in the context of residing in an institutional environment, both doctors recognise that the release of Mr Butler into the community would require ongoing support and supervision (Stedman 11 August 2016, pp 4 and 5; Aboud 29 May 2015, p 3 and 2 August 2016 paras 1, 2 and 5).2.Dr Aboud, in his supplementary report states, at para 2, that ‘I am unclear whether he would be capable of exercising proper control over sexual instincts should he find himself without a comparable level of support and supervision to that which currently exists for him at the Park Centre for Mental Health.’3.Release by the Parole Board, under the provisions of part 3A of the CLAA, enables conditions to be applied, including additional conditions which may require the detainee to submit to medical, psychiatric or psychological treatment. There is no power for the Governor in Council to apply conditions to release of a detainee under s 18(5) of the CLAA (Pollentine v Bleijie (2014) 253 CLR 629, 648 [38]).4.Release of Mr Butler under s 18(5) of the CLAA would not permit formal supervision and monitoring of Mr Butler in the community, and, in addition, there is no power after release under s 18(5) for the released person to be returned to detention if the release proves to be placing others at risk. Unlike release under part 3A, where a detainee could be returned to custody upon breach of a condition of release, the only way of returning the detainee to custody after release under s 18(5) would be by way of prosecution and conviction after a further offence.5.While it is suggested that there are groups and individuals in the community willing to provide support to Mr Butler in the community if he is unconditionally released there is nothing compelling him to avail himself of those support measures.6.PLS has submitted that the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 is sufficient to provide an effective supervisory regime if Mr Butler is released unconditionally into the community. However, the reporting requirements under this scheme do not provide the supervision and support, or conditions, appropriate for release of Mr Butler from detention.”Medical reports on the question of capability of control

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Butler v Attorney General (Qld) [2018] QCA 243
PARTIES:	JOSEPH WILLIAM BUTLER (appellant) v THE HONOURABLE YVETTE D’ATH, ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (respondent)
FILE NO/S:	Appeal No 5960 of 2018 SC No 2772 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2018] QSC 103
DELIVERED ON:	28 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2018
JUDGES:	Sofronoff P and Morrison JA and Jackson J
ORDERS:	1. The appeal be allowed. 2. The orders made on 9 May 2018 be set aside. 3. The order of the Governor in Council dated 1 February 2018 be set aside. 4. The matter be remitted to the Governor in Council to be determined according to law. 5. The respondent pay the appellant’s costs of the appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the appellant was convicted of sexual offences involving children between 1962 and 1970 – where he has been indefinitely detained since 1982 under s 18 of the Criminal Law Amendment Act 1945 (Qld) – where he applied for release under s 18(5)(b) and the Governor in Council determined he should not be released – where a statutory order of review of that decision was dismissed – where on appeal it was contended that as a matter of statutory construction, the question to be answered under s 18(5)(b) was whether, on the evidence before the decision-maker, the appellant was capable of controlling his sexual instincts in a proper manner – whether the Governor in Council erred by not addressing the relevant question Criminal Law Amendment Act 1945 (Qld), s 18(5)(b) Pollentine v Bleijie (2014) 253 CLR 629; [2014] HCA 30, followed R v Kiltie (1986) 41 SASR 52, cited
COUNSEL:	S Keim SC, with R W Haddrick and S T Lane, for the appellant S A McLeod, and G Del Villar, for the respondent
SOLICITORS:	Prisoners’ Legal Service for the appellant Crown Law for the respondent