Butler v Attorney General (Qld)

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.