Director of Public Prosecutions (WA) v Pindan
[2012] WASC 13
•13 JANUARY 2012
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [2012] WASC 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 13 | |
| Case No: | MCS:55/2010 | 19 & 20 SEPTEMBER 2011 | |
| Coram: | JENKINS J | 13/01/12 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay refused | ||
| A | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) ADRIAN PINDAN |
Catchwords: | Criminal law and procedure Dangerous Sexual Offenders Act 2006 (WA) Application for stay of application for continuing detention order Unfairness Oppression Respondent has a cognitive impairment preventing him from personally participating in proceedings |
Legislation: | Bail Act 1982 (WA) Criminal Code s 2, s 325 Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 12, s 19 Criminal Procedure Act 2004 (WA) s 90 Dangerous Sexual Offender Act 2006 (WA), s 7(1), s 8(1), s 17(2), s 37 Evidence Act 1906 (WA), s 106A Inebriates Act 1912 (NSW) Sentencing Act 1995 (WA) |
Case References: | Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 Moti v The Queen [2011] HCA 50 Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ADRIAN PINDAN
Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for stay of application for continuing detention order - Unfairness - Oppression - Respondent has a cognitive impairment preventing him from personally participating in proceedings
Legislation:
Bail Act 1982 (WA)
Criminal Code s 2, s 325
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 12, s 19
Criminal Procedure Act 2004 (WA) s 90
Dangerous Sexual Offender Act 2006 (WA), s 7(1), s 8(1), s 17(2), s 37
Evidence Act 1906 (WA), s 106A
Inebriates Act 1912 (NSW)
Sentencing Act 1995 (WA)
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Result:
Application for stay refused
Category: A
Representation:
Counsel:
Applicant : Ms L E Christian
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Aboriginal Legal Service (WA)
Case(s) referred to in judgment(s):
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575
Moti v The Queen [2011] HCA 50
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
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1 JENKINS J: The Director of Public Prosecutions for Western Australia (the DPP) has applied for orders that Adrian Pindan be declared a serious danger to the community and that he be detained in custody for an indefinite period for control, care or treatment, pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) (the DPP's application).
2 Mr Pindan applies for a stay of the DPP's application on the basis that it is an abuse of process because he is unable to participate in or make a defence to the DPP's application. Mr Pindan suffers from a mental impairment which prevents him from understanding and following the proceedings and giving informed instructions to his lawyer. A stay would have the effect of stopping the DPP’s application from being heard.
3 The DPP opposes the application for a stay, but does not dispute that Mr Pindan is mentally impaired and that his impairment has the consequences contended for by Mr Pindan's counsel.
4 [Suppressed]
5 [Suppressed]
6 [Suppressed]
The issues
7 At the time the DPP's application was made, Mr Pindan was an offender for the purposes of the Act, s 8(1). That is, he was a person serving a sentence of imprisonment for a serious sexual offence. He was convicted of that offence when the medical opinion was that he was fit to plead. Thus, he was a person who could be made the subject of an application under the Act.
8 However, the expert evidence is overwhelmingly to the effect that Mr Pindan is now not mentally fit to stand trial on any serious criminal offence because he has a permanent cognitive impairment and that that situation is highly unlikely to change.
9 This means that Mr Pindan is in the unusual position of being an offender who if charged with a serious sexual offence, as that term is defined in the Act, is unlikely ever to be convicted of such an offence or any serious criminal offence.
10 The issues are whether the DPP's application should be stayed as it is an abuse of process because: (1) it is foredoomed to fail; or (2) Mr Pindan
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- cannot participate personally in any defence of the application, due to his mental impairment?
11 These are my reasons for holding that the DPP's application is not an abuse of process and should not be stayed.
The court's power to stay proceedings
12 The Act s 40 states that proceedings under the Act are to be taken to be criminal proceedings for all purposes. Neither party suggests that this provision means that Mr Pindan should be treated as if he was a person charged with an offence, for the purpose of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act) s 12. If he was to be so regarded, and I found that Mr Pindan was not mentally fit to stand trial and was satisfied that he would not become mentally fit to stand trial within six months, I would be required to quash the DPP's application and either release Mr Pindan or make a custody order in respect of him: CLMIA Act s 19. The CLMIA Act is an example of an Act which can result in the indeterminate detention of an unconvicted mentally impaired person.
13 Neither does either party suggest that I can exercise the power in the Criminal Procedure Act 2004 (WA) s 90 to permanently stay the prosecution of the DPP's application, as if it was the equivalent of a charge against an accused.
14 Rather, Mr Pindan's counsel says that I should exercise the court's inherent power to stay the DPP's application on the same principles and criteria which would require a superior court exercising jurisdiction in a trial of a criminal charge at common law to stay a criminal charge. The DPP agrees that the court has the inherent power to stay the application but he submits that I should not exercise the power. He does not dispute the legal principles contended for.
15 In a number of cases, the High Court has considered the nature of the jurisdiction or power (hereinafter, I will refer to it as 'the power') to stay proceedings as an abuse of process and the circumstances in which it should be exercised.
16 In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, the High Court considered whether private prosecutions for criminal defamation ought to be stayed because they had been brought for
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- improper purposes. All members of the court agreed that Australian superior courts have power to stay both civil and criminal proceedings.
17 In their joint reasons, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:
The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice (520).
18 In Moti v The Queen [2011] HCA 50, the majority of the High Court described these two considerations as a basic proposition [53] and [57].
19 In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, the High Court considered the power in the context of a proposed stay of disciplinary proceedings against several doctors.
20 The High Court did not see any material difference between the circumstances which would constitute an abuse of process in the disciplinary tribunal and the circumstances which would constitute an abuse in a superior court. However, the majority noted that the concept required some adjustment in its application to the disciplinary tribunal to reflect that the jurisdiction of the tribunal was essentially protective and the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners (395 - 396).
21 The majority of the High Court held that the power to stay proceedings as an abuse of process was not confined to cases where the court is satisfied that the hearing would necessarily be unfair or the proceedings had been brought for an improper purpose. The majority said that the power of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, may be converted into instruments of injustice or unfairness. The majority gave the following examples of such categories of cases:
(1) Proceedings which are foredoomed to fail;
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- (2) Proceedings in a court which is clearly an inappropriate forum to entertain the proceedings; and
(3) Proceedings which sought to litigate a new case which has already been disposed of by earlier proceedings.
22 The majority said that determining whether criminal proceedings should be stayed:
[f]alls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
23 The power to stay criminal proceedings was again considered by the High Court in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. Gaudron J said:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment' (74 - 75). (citations omitted)
24 Her Honour's comments were cited with approval by the majority in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [14].
25 In Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, the High Court considered the validity of legislation which the Commonwealth Parliament had enacted so as to legalise the type of
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- conduct criticised in Ridgeway. In deciding that the legislation was valid, Brennan CJ said:
To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts. It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice [37].
27 However, the Court said:
In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'.
…
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- A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the 'social imperative' as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed [33] - [37]. (citations omitted)
28 Before I consider the issues raised by the stay application, I will summarise the evidence regarding Mr Pindan's personal circumstances.
Mr Pindan's background
29 Mr Pindan is a 43-year-old single, Aboriginal man. He was born in Fitzroy Crossing and raised by an uncle and aunt at the Yiyili Community, south east of Fitzroy Crossing. Due to long periods in prison, for over a decade Mr Pindan has had little to do with his near or extended family. There is no evidence to indicate that he has had in the past, or is capable of developing, significant personal relationships with family members or other members of the community.
30 Mr Pindan went to primary school in Fitzroy Crossing and to second year high school in Derby but does not have any significant literacy or numeracy skills; an issue I will return to later. After school, Mr Pindan did some unskilled labouring until he committed his first serious offence and was sentenced to imprisonment.
31 Mr Pindan's first encounter with the criminal justice system was in 1984, when at the age of 15 he was convicted of being unlawfully on the premises of a woman in Broome. By then he was living in Broome and abusing alcohol.
32 Other minor offences followed. Then, on 3 December 1988, Mr Pindan broke into a home in Broome and indecently assaulted the elderly female occupant who was asleep in bed with her husband. Mr Pindan admitted to the police that he wanted to have sex with the victim but she had screamed and he ran off. Less than three weeks later he was again unlawfully on a woman's premises in Broome. He ran off when challenged.
33 In April 1989, Mr Pindan was sentenced to a total of 18 months' imprisonment for the first incident. A parole plan was formulated in which Mr Pindan would live in Yiyili whilst on parole.
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34 Around Christmas 1989, Mr Pindan went to Fitzroy Crossing and in January 1990, he grabbed an older female victim as she walked along the street, dragged her into the bush and had sex with her. On 11 June 1990, he was convicted of offences involved in this incident and was sentenced to a total of 2 years and 6 months' imprisonment.
35 Prior to conviction, Mr Pindan was bailed on the condition that he live in Yiyili but he found his way back to Fitzroy Crossing and, again, began drinking. On 25 April 1990, whilst still on bail for the January offences, he broke into a house and raped the woman who was asleep in it. Mr Pindan was convicted and sentenced to imprisonment for 3 years cumulative on the sentence imposed for the January offences.
36 During this term of imprisonment, Mr Pindan was reported for assaulting and threatening other prisoners and behaving in a lewd manner towards female prisoner officers.
37 Although it had previously been noted that Mr Pindan appeared to be of below average intelligence, it was only in a psychological report prepared in early 1994 to determine Mr Pindan's suitability for participation in the sexual offender treatment program (SOTP) that it was suggested that his 'speech pattern was somewhat distorted and unfocused and he appeared to have difficulty understanding straight forward questions'. The psychologist suggested that it was possible that Mr Pindan was suffering from considerable organic brain dysfunction brought on by long term alcohol abuse. He suggested that this factor combined with Mr Pindan's denial of his offending and his illiteracy rendered him unsuitable for participation in the SOTP.
38 Sometime towards the end of 1995, Mr Pindan must have been released from prison. He committed some minor offences but, more relevantly, in March 1997 he took a 5-year-old girl who was known to him through family connections from her home in Derby. He took her to a public toilet and raped her. In doing so, he caused significant injuries, amounting to grievous bodily harm. Mr Pindan told the police that when he committed the offence, he was drunk and looking for a woman to have sex with.
39 In June 1997, Mr Pindan was convicted of the above offences and sentenced to 10 years' imprisonment without eligibility for parole, due to his risk of reoffending. In 1998 whilst in custody Mr Pindan indicated to
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- the authorities that he did not wish to undertake any programmes to address his offending.
40 In 2001, Mr Pindan had a brain scan. He was diagnosed with a Rathke's cyst, which is an asymptomatic, non-malignant lesion in his skull. No other abnormalities of the brain were detected.
41 In 2003, whilst in custody, Mr Pindan exposed his penis to a female hospital officer. He again committed offences after his release later in 2003. These included two burglary offences, assault, multiple breaches of a misconduct restraining order and various street offences.
42 In 2004, a community health professional reviewed Mr Pindan in Looma, a community south-east of Derby where various members of his extended family live. The officer noted that Mr Pindan appeared to be psychotic with motor restlessness, insomnia, grandiosity, facial grimacing and loud nasal clearing when stressed. He was commenced on medication and reviewed a month later when it was noted that there was little change. The officer noted that by mid-May 2004 Mr Pindan had relocated to Derby, was drinking and, possibly, using cannabis. In August 2004, a psychiatrist attempted to assess Mr Pindan in Looma. Mr Pindan had the same symptoms as noted in April. The psychiatrist noted that after release from prison Mr Pindan was to attend community clinics but had failed to do so.
43 In March 2005, Mr Pindan king hit another male who was walking along a street in Broome. The victim lost consciousness and had to have sutures to a cut to his eye caused by the assault. At the end of March 2005, Mr Pindan was convicted of this offence and was also sentenced for breaching a suspended imprisonment order imposed for burglary offences. He was sentenced to a total of 9 months' imprisonment.
44 Whilst in custody in Greenough prison Mr Pindan was difficult to manage. He made lewd remarks to a female prison worker, kept his cell in an extremely unhygienic condition and failed to attend to his personal hygiene.
45 In August 2005, Mr Pindan was seen by Dr Pascu, a consultant psychiatrist. Little had changed in his presentation. Dr Pascu diagnosed Mr Pindan as having dementia (cause unclear), a history of alcohol and cannabis abuse, antisocial personality traits, a history of head injury and a Rathke's cyst. She said he had a serious impairment in functioning and
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- recommended that his global cognitive deficit needed to be further assessed.
46 In August 2006, Dr Andrew Campbell, a consultant psychiatrist, examined Mr Pindan and concluded that he had a complex set of behavioural and psychological problems 'which may approach psychotic depth, particularly during the withdrawal phase of his addiction cycle'. Dr Campbell believed that Mr Pindan may have 'mild cognitive impairment from years of alcohol and solvent abuse and cannabis …'. He recommended that Mr Pindan be started on a new form of medication and that he be reviewed before release.
47 The review does not appear to have taken place as the next matter in evidence is Mr Pindan's arrest in February 2007 for the rape of a woman in Broome. On that occasion he had been drinking. He, again, dragged a woman off the street, into bushes and had sex with her. Mr Pindan pleaded guilty to one charge of sexual penetration without consent. For the offence he was sentenced to 4 years' imprisonment without eligibility for parole. That sentence expired on 27 February 2011. Since then he has stayed in custody under interlocutory orders made under the Act.
48 Mr Pindan has served his sentence in Perth metropolitan prisons. He appears to have been more manageable during this current term although he still needs to be directed in regards to his personal hygiene, which continues to be poor. He has acted inappropriately towards female prison staff. He does not socialise with other prisoners and has little communication with his family.
49 Mr Pindan refused to take his medication in prison but anti-psychotic medication was recommended when he was transferred to the Frankland Centre, the secure forensic unit of the Graylands Psychiatric Hospital, between 30 March 2011 and 1 August 2011.
Psychological assessment by Mr Evans
50 As a consequence of the application to stay the DPP's application, I ordered that Mr Pindan be assessed in respect of the level of his cognitive impairment, his understanding of the proceedings under the Act and his ability to give instructions to counsel.
51 A clinical psychologist, Mr Bob Evans, assessed Mr Pindan for these purposes with a focus on assessing Mr Pindan's intellectual functioning. In his report dated 30 June 2011, Mr Evans said that prior to testing
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- Mr Pindan he attempted to establish a rapport with him through casual discussions on the ward at the Frankland Centre. He noted that Mr Pindan responded to questions with a 'yes', 'no' or brief concrete answer. Mr Evans said that Mr Pindan spoke quietly and mumbled his words. Mr Pindan failed to initiate conversational topics of his own except for ongoing requests that he be returned to prison. When making these requests he simply stated the word 'Casuarina' referring to Casuarina Prison, without using a sentence, or indicated that he wished to return to prison to smoke cigarettes by mimicking the act of smoking, rather than verbalising his wish.
52 When the formal assessments commenced, Mr Pindan placed a newspaper on the table next to him and intermittently tore pieces from it and chewed them. Midway through the session he also gripped his shirt in his teeth. Mr Evans made the comment that Mr Pindan was often observed to do the same action when he was on the ward. I noted this behaviour during the hearing of the application.
53 Mr Evans administered the Dementia Rating Scale 2 (DRS-2) over the course of three sessions.
54 Mr Evans noted that Mr Pindan had difficulty extending his tongue when requested as part of the DRS-2 assessment. An attempt was made by a medical practitioner to further investigate this difficulty but Mr Pindan did not permit the examination. Mr Evans noted that it is possible that Mr Pindan has a congenital disorder limiting his ability to express himself verbally. Mr Evans suggested that this be investigated by a speech and language specialist. I do not believe that this has occurred.
55 Mr Evans recommended that the results of the psychological assessment be interpreted with caution in light of Mr Pindan's ethnic and cultural background. Mr Evans reported that he had very little information about Mr Pindan's functioning as a child, adolescent and young adult.
56 In respect of the DRS-2, Mr Evans noted that Mr Pindan required much prompting to complete the tasks he was set but that he appeared to give his best performance. The DRS-2 Total Score is a composite of the scores for five subscales being attention, initiation/perseveration, construction, conceptualisation and memory. Mr Pindan's score indicates a severely impaired level of performance and a global impairment to intellectual functioning.
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57 Mr Evans also assessed Mr Pindan's present reading ability and general literacy skills using the Neale Analysis of Reading Ability (Neale). The results of the Neale assessment indicate that Mr Pindan has a significant reading skills deficit. In a less formal analysis, Mr Pindan was not able to spell a sample of well known, easy English words, however, he was able to form the letters of the alphabet adequately and he was able to print his name correctly. He appeared to be able to follow Mr Evans' verbal instructions when they comprised everyday language.
58 Mr Evans then administered the Standard Progressive Matrices (SPM) which is an assessment of general intelligence. Mr Pindan was administered the timed version of the assessment. He finished the 20-minute test in 19 minutes and obtained a total score of 14. That result placed him at the first percentile rank of individuals who had completed a year 8 education. That is, 99% of the individuals in this comparison group scored better than Mr Pindan. His performance fell within the extremely low classification which was consistent with his performance on the DRS-2.
Psychiatric reports
59 At a preliminary hearing of the DPP's application, the court ordered Mr Pindan to undergo examination by two psychiatrists, Dr Wynn Owen and Dr Febbo, for the purpose of the Act s 37. They each prepared an additional report after seeing Dr Davison's reports, which were prepared in relation to the issues raised by the stay application. Their reports were tendered in evidence and both psychiatrists gave oral evidence at the hearing of the application. In addition, Dr Davison prepared two reports and gave evidence at the hearing of the application. I will focus on those parts of the psychiatrists' evidence which relate to the application for a stay of the proceedings. The conclusions of the psychiatrists in respect of the extent of Mr Pindan's mental impairment and fitness to plead are not in dispute and I accept them. The differences that exist between them, such as whether Mr Pindan has a psychosis or not, do not alter the effect of their combined evidence.
Dr Davison
60 Dr Davison was a consultant psychiatrist at the Frankland Centre between May and July 2011 when Mr Pindan was detained in that unit and she had considerable contact with Mr Pindan over that period. She prepared a report dated 17 June 2011 in respect to the level of Mr Pindan's cognitive impairment, whether or not he had a psychotic illness or any
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- other mental illness, his capacity to understand the nature of the DPP's application and his ability to give instructions in relation to the proceedings.
61 Prior to completing her report, Dr Davison had the opportunity to review other experts' reports on Mr Pindan, including Dr Febbo's and Dr Wynn Owen's initial reports completed for the purpose of the DPP's application.
62 Dr Davison noted that when Mr Pindan was first admitted to the Frankland Centre he was reasonably cooperative but was unable to give any meaningful history. His affect was described as fatuous and inappropriate. There had been very little change in his presentation during his stay. He was noticed to make unusual snorting noises and facial grimaces. He spent long periods watching television and occasionally laughing and talking to himself. He had been treated with anti-psychotic medication which seemed to have reduced the frequency of the snorting but it had not led to a change in his level of functioning. Throughout his stay he had very poor personal hygiene. He did not interact much with staff or other patients. He occasionally played pool but wandered off when he had had enough. He engaged in minimal verbal communication and used grunts and gestures to indicate what he wanted. He never greeted anybody by name and he sometimes chewed on his T-shirt or torn up newspaper.
63 During interviews he responded only in monosyllables. His speech was slurred and difficult to make out. He just repeated that he wished to return to prison so he could smoke. He communicated in single words and did not make sentences. He denied hearing voices or experiencing other psychotic symptoms. His behaviour was not aggressive. He wanted to be released from prison and returned to Fitzroy Crossing where he anticipated no difficulties with either looking after himself or with the victims of his offending and their families.
64 Dr Davison's psychiatric diagnosis was of an unspecified mental disorder due to brain damage and dysfunction as well as a mental and behavioural disorder due to 'alcohol - harmful use'. Dr Davison said that it is difficult to assess with certainty whether Mr Pindan is suffering from a psychotic illness because of difficulties communicating with him in order to get an account of his thoughts, beliefs and experiences. It is her opinion that whilst Mr Pindan may sometimes experience psychotic symptoms when under stress or using or withdrawing from alcohol or
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- other substances, he does not have the features of, or fulfil the criteria for, a psychotic illness such as schizophrenia.
65 Dr Davison concluded that Mr Pindan suffers from cognitive impairment to a significant degree. However, it is difficult to determine the exact cause of the cognitive impairment and whether or not Mr Pindan is deteriorating.
66 Dr Davison said that the opinion of the team at the Frankland Centre was that Mr Pindan could not understand current court proceedings. He had been unable to follow Mental Health Review Board proceedings related to him, even when relevant documents were read to him. He is unable to comprehend and repeat back what the current proceedings are about. He has a very poor attention span and is not able to pay attention for more than a couple of minutes. He cannot read any documents. His cognitive impairment is likely to prevent him from being able to understand and weigh up any information; and make decisions accordingly. His communication is so impaired that he would not be able to give clear instructions to his lawyer.
67 According to Dr Davison, Mr Pindan's level of cognitive impairment and communication difficulties make it very unlikely that information about the proceedings could be presented in a form he could understand in order to provide meaningful instructions.
68 Mr Pindan's level of impairment is unlikely to abate as it is a chronic problem most likely due to irreversible brain dysfunction. Treatment of his possible psychotic symptoms had not led to any improvement in his cognitive functioning and there is concern that his level of cognitive functioning may be gradually declining.
69 On 27 July 2011, Dr Davison completed a second report after she had reviewed an MRI scan of Mr Pindan's brain and Mr Evans' final report. Dr Davison concluded that the further cognitive testing completed by Mr Evans was consistent with her previous conclusions. Dr Davison said that the fact that Mr Pindan's brain was considered appropriate for his age and there was no evidence of any selective atrophy suggests that there is no current evidence for a degenerative dementing illness being the cause of the cognitive impairment. She said that this was consistent with the possibility that Mr Pindan has experienced cognitive impairment throughout his life.
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70 In evidence, Dr Davison answered questions relating to Mr Pindan's ability to show greater interest in and understanding of matters that he is himself interested in. For example, it had been noted by others that Mr Pindan followed a football team and was aware when they had won and when they were playing. Also, during part of the hearing of this application he appeared by video link to the prison. He indicated that he was bored with the proceedings and that he wished to leave. I advised him that we would have a break at a specified time. When at that exact time he rose to leave, it was obvious that, without assistance, he had followed the time on a clock positioned in the room he was in.
71 Dr Davison said that Mr Pindan showed some level of understanding of very basic concepts such as time. She said that he definitely pays better attention to football games than to anything else, but his communication level even about such matters was very basic.
72 In respect of Mr Pindan's ability to understand the proceedings under the Act, Dr Davison testified that he has the capacity to understand at a very basic level that there is some sort of proceeding going on and that it is something to do with whether he gets out of prison or not. She said that she did not think that he understood that there was the Act, what the outcomes might be for him and what the implications of the proceedings may be. Dr Davison said that she did not believe that he grasped that he could engage in the proceedings and neither did she believe that he had the capacity to understand that he could do so. Dr Davison made the point that attempts could be made to teach Mr Pindan about those matters but because of his communication difficulties it was very difficult to ascertain Mr Pindan's level of understanding. Dr Davison said that the only matter that Mr Pindan had spontaneously raised with her was when he could go back to prison to smoke.
73 Mr Pindan knew that he had been sent to prison for having sex with a woman but Dr Davison doubted whether he would understand or be able to comply with complex conditions should they be part of his release into the community.
Dr Febbo
74 Dr Febbo interviewed Mr Pindan on three occasions. On all three occasions Mr Pindan attempted to terminate the interviews.
75 Mr Pindan gave Dr Febbo little information about his offending or his personal background. He told Dr Febbo that he had served his full
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- time and he now wished to get on with life and to work. During the interviews Mr Pindan sometimes engaged in inappropriate behaviour and had unusual facial grimaces. He said little and what he did say was difficult to understand.
76 Dr Febbo made a diagnosis of alcohol abuse and/or dependence, substance abuse, with a history of cannabis and solvent abuse, personality change, dementia, psychotic disorder not otherwise specified and anti-social personality traits. Dr Febbo assessed Mr Pindan's global assessment of functioning at 40 on a scale from 0 to 100.
77 Dr Febbo is of the view that Mr Pindan's dementia could be related to alcohol abuse or head injury and that Mr Pindan's cognitive deficits have a number of different causes, including a degree of mental retardation which has been made worse by significant alcohol abuse, solvent abuse and a head injury. Such cognitive impairment is not reversible.
78 I note that although there are many references in the exhibits to Mr Pindan having problems caused by a head injury, there is no evidence of Mr Pindan ever having received a head injury. However, it seems to remain a possible explanation for some of Mr Pindan's mental impairment.
79 Dr Febbo also noted that Mr Pindan has social problems such as lack of a social group, accommodation issues and considerable psychological instability related to his other problems.
80 Dr Febbo carried out a risk assessment for Mr Pindan committing further serious sexual offences. In order to conduct his risk assessment, Dr Febbo used the Static-99, the Hare Psychopathy Check List - Revised (PCL-R) and the RSVP and the Historical, Clinical, Risk-20 (HCR-20). It is unnecessary for the purposes of this application to detail Dr Febbo's findings. It is sufficient to say that Dr Febbo found Mr Pindan to be a high risk of future sexual offending if he is not subject to an order made under the Act.
81 In Dr Febbo's final report of 19 September 2011, he said that after reviewing Dr Davison's first report, Mr Evans' psychological report and the MRI result, his opinion and his management recommendations remained unchanged. Dr Febbo said that the information from Graylands Hospital confirmed that Mr Pindan will require a level of intensive
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- supervision that may well not be available in anything other than a specialised unit.
82 In evidence, Dr Febbo said that Mr Pindan did not engage in the assessment process. He consistently attempted to terminate the interviews by saying such things as 'it's finished', 'no more', 'going home', and 'court's over'. Dr Febbo noted that during the interviews, there was little eye contact and Mr Pindan sometimes made grimaces or chewed his T-shirt. At other times, he appeared pre-occupied and his affect was sometimes incongruous. There was no evidence of a sustained depressive mood.
83 Dr Febbo regarded Mr Pindan's unusual behaviour, such as snorting and chewing his clothes, as possibly relating to anxiety, stress or regression, but there was, in his view, a significant possibility that the behaviours may indicate an underlying psychotic process.
84 Dr Febbo was able to give an assessment of Mr Pindan's risk of committing further sexual offences, despite Mr Pindan's cognitive impairment. Dr Febbo noted, for example, that when he completed the RSVP he omitted risk factors such as sexual deviance and attitude towards sexual violence which would have required information from Mr Pindan. Dr Febbo said that if Mr Pindan had engaged more with him in the assessment process, it would probably have meant that his level of cognitive impairment was much less. In such a situation, mental disorder may become less of a factor in respect of risk but there may then be information in relation to sexual deviance, and attitudes towards sexual violence which would increase his risk. Dr Febbo noted that the RSVP manual said that the tool could be used in individuals with cognitive impairment.
85 Dr Febbo testified that although he had not completed a formal assessment of Mr Pindan's fitness to plead, he agreed with Dr Davison's opinions.
86 Dr Febbo said that Mr Pindan may have a very basic level of understanding that the current proceedings were to decide whether he should be kept in prison for a longer period because he might have sex with a woman, if released. However, Dr Febbo does not think that Mr Pindan understands the proceedings in any level of detail. Dr Febbo conceded that if Mr Pindan was interested in the proceedings and if there was not the negative implications of them, Mr Pindan would probably have more of an understanding of the proceedings.
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87 Dr Febbo said that it was not possible to decide whether Mr Pindan's ignorance of the nature of the proceedings was voluntary or involuntary because it was not possible to discuss the matter with Mr Pindan. Consequently, it was not possible for Dr Febbo to say whether Mr Pindan did understand that he may have to stay in prison because he might have sex with a woman without her consent, if released. Mr Pindan had not demonstrated any understanding of that concept to Dr Febbo.
88 In cross-examination, it was put to Dr Febbo that Mr Pindan's difficulties mean that Dr Febbo is less confident about his opinion as to risk of reoffending than he would be if he was able to obtain a full history from Mr Pindan. Dr Febbo said that he did not think so. He said that his opinion remains that Mr Pindan is at high risk, and he is confident of that opinion, regardless of Mr Pindan's cognitive impairment. Despite this, Dr Febbo conceded that it was always better to have more information about or from a patient. Dr Febbo also pointed out that for some risk factors, Mr Pindan's level of cognitive impairment increased his risk of offending in that it meant that Mr Pindan, for example, had a low level of self-awareness because of that cognitive impairment. Dr Febbo also pointed out that his risk assessment was not done on the basis of one risk factor, which a patient may be able to discount if able to speak intelligently to him. Rather, Dr Febbo said that the risk assessment was done on the basis of a wide range of information from a variety of sources. In Mr Pindan's case, they all appeared to be consistent.
89 In terms of the management of Mr Pindan's risk of reoffending, Dr Febbo testified that there would have to be external sources of management and monitoring. That is, other people will have to manage and monitor Mr Pindan as it cannot be expected that Mr Pindan has the personal resources to be able to stop himself from reoffending. Dr Febbo said that he did not believe that Mr Pindan was a person who has the ability to think about complex matters and to resolve them internally, but the inability to communicate his thoughts and resolutions to others.
Dr Wynn Owen
90 Dr Wynn Owen interviewed Mr Pindan on two occasions for a total period of approximately two hours. Neither interview was conducted with an interpreter, despite Dr Wynn Owen's attempt to obtain one for the second interview. Dr Wynn Owen noted that Mr Pindan was unable and/or unwilling for reasons of apparent indifference, probable cognitive impairment, and/or lack of understanding due to language and cultural
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- barriers to answer the majority of questions he asked him. From shortly after the start of each interview, Mr Pindan repeatedly stated that he wished to return to his unit in the prison. Dr Wynn Owen acknowledged that Mr Pindan's limited communication meant that he (Dr Wynne Owen) did not have an insight into Mr Pindan's internal world, his motivations for and understanding of his offending behaviour. He said that the absence of these matters did limit the assessment. Dr Wynn Owen also noted that because Mr Pindan was an Aboriginal man from a bush community, the tests and standards usually applied in psychiatric and reoffending risk assessment do not necessarily apply equally to him.
91 Dr Wynn Owen diagnosed Mr Pindan as having an alcohol dependence syndrome (in remission), a history of cannabis abuse and mental retardation of an unspecified severity, although he was likely to be of borderline intelligence. Dr Wynn Owen also noted psycho-social and environmental problems such as social isolation, unemployment, alcohol and drug use and imprisonment. Dr Wynn Owen made a global assessment of functioning in the previous six months of 50, which indicated moderate to severe impairment and functioning.
92 Dr Wynn Owen used the Static-99 and the RSVP to assess Mr Pindan's risk of sexual reoffending. Dr Wynn Owen concluded that not only did Mr Pindan present a high risk of reoffending without supervision, but that his capacity to engage in any rehabilitation programme is severely compromised by his cognitive state.
93 Dr Wynn Owen said that it was not clear that Mr Pindan understood the proceedings under the Act and at the time of interview, Mr Pindan was quite adamant that he did not need to return to court and would be released at the end of his term of imprisonment.
94 In Dr Wynn Owen's second report, after he had reviewed Dr Davison's report and Mr Evans' psychological report, he stated that the new information had no effect on Mr Pindan's Static-99 score as this was based on fixed historical events. His opinion that Mr Pindan represents a high risk of violent sexual reoffending had not altered. He considered that confirmation that Mr Pindan had long-standing global cognitive deficits confirmed his previous diagnosis of mental retardation. He said these deficits were highly relevant to risk. In addition to contributing to the risk of offending, Mr Pindan's cognitive state is a barrier to risk mitigation intervention and it indicates a requirement for highly structured
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- supervision, as Mr Pindan cannot be expected to self-manage, or to understand and comply with a supervision regime.
95 Dr Wynn Owen also considered that Mr Pindan, for reasons of mental retardation/global cognitive deficit, does not understand the current proceedings, does not have the capacity to understand them, and is not able to meaningfully instruct a lawyer. Neither does he have the capacity to follow the course of the proceedings. This is in the sense that Mr Pindan does not understand the content of discussions in court, the implication of the proceedings, the evidence and any findings during the proceedings. His cognitive impairment means that he does not have the capacity to call evidence in support of a defence or even to know that he could do so.
96 Dr Wynn Owen is of the view that Mr Pindan's cognitive development may equate somewhere between that of a 6 or 7-year-old and a 13-year-old. He acknowledged that within Mr Pindan's pockets of interest, such as football, he appeared to be able to function a little better.
97 Dr Wynn Owen is not of the opinion that Mr Pindan is suffering from a psychosis. He thought that some of the unusual behaviour exhibited by Mr Pindan could be associated with neurodegenerative conditions, could be side effects from medication or could be the result of stress and anxiety.
98 Dr Wynn Owen said that he did not believe that the inability to obtain a history from Mr Pindan detracts significantly from the reliability of his risk assessment. Dr Wynn Owen acknowledged that relying on third-party material meant that he does not have an insight into Mr Pindan's internal world. Consequently, Dr Wynn Owen does not understand Mr Pindan's motivation and whether he planned his offending behaviour. These matters may affect the issue of mitigation of risk. Dr Wynn Owen acknowledged that they were critical to understanding future management of risk, but not critical to understanding that there is or is not a risk of reoffending.
Determination of the issues
99 At the commencement of these reasons I indentified two issues for determination. I will first consider whether the DPP's application is an abuse of process because it is foredoomed to fail. Secondly, I will consider whether it is an abuse of process because Mr Pindan can not participate personally in it.
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100 The first issue is a question of statutory interpretation. If the Act, properly construed, does not apply to offenders who through mental impairment will never be convicted of a serious sexual offence if released into the community then the DPP's application is foredoomed to fail and it is an abuse of process.
101 The CLMIA provides that if a person is not mentally fit to stand trial for an offence which would be tried in a superior court and the court is satisfied that the person will not become fit within 6 months, the court must make an order under the CLMIA s19(4) quashing the indictment without deciding the guilt or otherwise of the accused and either-
(a) releasing the accused; or
(b) making a custody order in respect of the accused.
102 A custody order is an order that the person be detained in an authorised hospital, a declared place, a detention centre or a prison, until released by an order of the Governor.
103 As the medical opinion is that Mr Pindan is not mentally fit to stand trial on a serious offence and he is never likely to become so, it is highly unlikely that he will ever be convicted of a serious sexual offence in the future. The CLMIA will apply so that any charge against him will be quashed without a determination of his guilt or otherwise.
104 If the Act only applies to offenders who may be convicted of a serious sexual offence in the future, then the DPP’s application is doomed to failure and it is an abuse of process.
105 In construing the relevant provisions of the Act I have applied the principles of statutory construction which were summarised in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [78]. Those principles require me to give the words of the Act the meaning that Parliament intended them to have. That meaning will usually correspond with the grammatical meaning of the provision. This is not always the case. The context of the words, the consequences of the literal or grammatical construction, the purpose of the statute or the construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
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106 The objects of the Act are to:
(a) provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and
(b) to provide for continuing control, care, or treatment, of persons of a particular class (s 4).
107 It is relevant to note that the objects in s 4 do not identify the criteria for inclusion in the particular class of persons who are to be subject to orders made under the Act. That is partly provided for in the Act s 8(1), which states that the DPP may file an application for orders under the Act in relation to a person who is under sentence of imprisonment wholly or in part for a serious sexual offence. It is not in dispute that at the time the DPP's application was made, Mr Pindan was under sentence of imprisonment for a serious sexual offence and on this criterion is an appropriate respondent to an application under the Act.
108 In addition to the qualifying criterion in s 8(1), an order under the Act for the detention or release on supervision of a person may only be made if the court finds that the 'offender' is a 'serious danger to the community': the Act s 17.
109 The Act s 7(1) provides that before the court may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would ‘commit a serious sexual offence’.
110 The phrase 'commit a serious sexual offence' is defined in the Act s 3(1) as follows:
commit a serious sexual offence includes to do an act or make an omission outside this State or outside Australia that, if it were done or made in this State, would constitute a serious sexual offence.
111 The reference in the definition to acts or omissions, is some evidence to the effect that the term requires the focus to be on the doing of acts or the making of omissions would constitute a serious sexual offence rather than on legal liability for doing such acts or making such omissions.
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112 'Serious sexual offence' has the meaning given to that term in the Evidence Act 1906 (WA), s 106A. The Evidence Act s 106A, relevantly states that a 'serious sexual offence' is:
(a) an offence under a section or Chapter of The Criminal Code mentioned in Part B of Schedule 7 for which the maximum penalty that may be imposed is 7 years, or more than 7 years;
(b) an offence under a repealed section of The Criminal Code if -
(i) the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or Chapter of The Criminal Code mentioned in Part B of Schedule 7; and
(ii) the maximum penalty that may be imposed for the new offence is 7 years, or more than 7 years;
or
(c) an offence of attempting to commit an offence described in paragraph (a) or (b).
113 The Evidence Act schedule 7 part B includes and refers to the Criminal Code chapter XXXI. Offences in chapter XXXI which are serious sexual offences include sexual penetration without consent (s 325), and sexual offences against children under 16 (s 320, s 321).
114 Also of relevance is the definition in the Criminal Code s 2 of 'offence'. It states:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
115 Again, the reference to acts or omissions in the definition of ‘offence’ is some evidence that in the Act s 7(1) an unacceptable risk that a person will ‘commit a serious sexual offence’ is an unacceptable risk that the person will do an act or make an omission which renders them potentially liable to punishment rather than an unacceptable risk that a person will do an act or make an omission for which they will be judged to be liable to punishment.
116 If Parliament intended and has provided in the Act s 7(1) that a person in Mr Pindan's position could be the subject of a continuing detention order or supervision order on the basis that there is an
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- unacceptable risk that if he was not subject to such an order he would do the acts or make the omissions in the circumstances provided for in the offence creating provision, that constituted a serious sexual offence, then the DPP's application would not be an abuse of process on the basis that it was foredoomed to fail. On the other hand, if Parliament has proscribed that in order to find that a person is a serious danger to the community a court has to be satisfied that there is an unacceptable risk that the person would be liable to conviction for or be found guilty of a serious sexual offence, this would be strong evidence that the proceedings were an abuse of process either on the basis that they were foredoomed to fail or on the basis that Parliament had never intended that person in Mr Pindan's position would be subject to an application under the Act.
117 Mr Pindan’s counsel submits that in order for an act to be an offence there must be both the act itself and the liability for punishment. She submits that the mere doing of the act alone does not equate to an 'offence'. She submits that as a superior court must quash the indictment without deciding the guilt or otherwise of an accused who is permanently not mentally fit to stand trial, an accused who is permanently unfit to be tried would not ever be liable for punishment for an act which constitutes an offence and therefore could not ever be said to have committed an 'offence' for the purposes of the Criminal Code s 2. Neither could it be said, for the purpose of the Act, s 7(1) that there is an unacceptable risk of the person committing a serious sexual offence. Mr Pindan’s counsel further submits that the same can be said of a person acquitted on the basis of unsoundness of mind. That is, that they are not an offender for the purposes of either the Criminal Code s 2 or the Sentencing Act1995 (WA) and they could never satisfy the Act s 7(1).
118 The DPP submits that the meaning of the word 'commit' in the Act s 7(1) should be given its ordinary meaning that is 'to do; perform; perpetrate'.
119 The DPP submits that there is no basis for equating the words 'commit a' in the Act s 7(1) with the words 'be convicted of'. He says that that is what the legislature had intended, there is no reason that it would not have said so.
120 He says that the extended definition of the phrase 'commit a serious sexual offence' in the Act s 3 supports an interpretation of the phrase that focuses on future behaviour rather than on a finding of guilt in relation to future behaviour.
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121 He also points out that the Act s 7(3) and s 14(2)(a) requires the court in assessing whether a respondent is a serious danger to the community to have regard to any report that a psychiatrist prepares pursuant to the Act s 37. Section 37(2) requires that any such report has to indicate the psychiatrist's assessment of level of risk that, if a person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The DPP says that Parliament could not have expected psychiatrists, being medical experts, to assess the likelihood of the outcome of a criminal process. Rather, Parliament intended psychiatrists to assess the level of risk of the person doing the acts or making the omissions that constitute a serious sexual offence.
122 The DPP further submits that to interpret the Act as requiring the Court to make an assessment of the likelihood of conviction of a respondent would make it virtually impossible for a court to make an affirmative finding. He says that such an assessment would be contingent on many factors, some external to the behaviour of the respondent (for example, the willingness of a victim to testify) and some related to the behaviour of the respondent (for example, whether the modus operandi of the respondent would make detection likely or not).
123 In respect to the definition of 'offence' in the Criminal Code s 2, the DPP submits that 'offence' is nothing more than a label given to particular acts or omissions. Thus, defining 'serious sexual offence' in the Act by reference to the Criminal Code offences is merely a way of identifying the acts or omissions with which the Act is concerned. In turn 'commit a serious sexual offence' in the Act s 7(1) only refers to doing the acts or making the omissions which may render a person liable for a conviction. The DPP submits that this interpretation of the term 'commit a serious sexual offence' is consistent with the objects of the Act and with the Act s 17(2).
124 With some refinement, I accept the construction of the phrase 'commit a serious sexual offence' in the Act s 7(1) contended for by the DPP. Principally, this is because of the definition in the Act of the term 'commit a serious sexual offence' and the definition in the Criminal Code s 2 of 'offence'. Those definitions focus on an offence being the doing of acts or the making of omissions of a certain character or in certain circumstances, rather than on actual criminal liability for or conviction for the doing of such acts or the makings of such omissions. I also take into account the impracticality of a court basing a decision under the Act on whether there is an unacceptable risk of a person being convicted or found
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- liable for a serious sexual offence. Further, this construction appears to be consistent with the protective nature of the Act.
125 The refinement I make to the DPP's proposed construction is to define the phrase 'commit a serious sexual offence' not just by the way of the acts and omissions which constitute a serious sexual offence but also by the character of or circumstances in which those acts and omissions are done or omitted to be done. For example, for a court to be satisfied that a respondent is an unacceptable risk of committing a serious sexual offence if released unsupervised into the community it is not sufficient for the court to be satisfied that he will sexually penetrate another person. The sexual penetration must be done in the circumstances specified in an offence creating section; for example, without the consent of the other person as provided for in the Criminal Code s 325.
126 Therefore, I conclude that the Act does not only apply to offenders who may be convicted of serious sexual offences in the future and that the DPP's application is not an abuse of process because it is foredoomed to fail. I now turn to the second issue for my determination which is whether the application is an abuse of process because Mr Pindan cannot participate in it?
127 To grant a permanent stay of proceedings because they are an abuse of process is a power which is to be only exercised in extreme cases. Although the category of cases in which the power would be exercised has been said not to be closed, there are some categories where it can be said that the power should be exercised. In my view, this case does not fall into any one of those identified categories. For example, for the reasons which I have given above, the proceedings are not foredoomed to fail, this court is not 'a clearly inappropriate forum' for the hearing of the DPP's application, the application does not give rise to an estoppel, the proceedings do not seek to litigate a new case which has already been disposed of by earlier proceedings, and the proceedings have not been brought for an improper purpose.
128 Mr Pindan's application relies on the broader concept of the proceedings being an affront to the public conscience because he does not understand the nature of the proceedings and cannot follow or participate in them. It is said that in the circumstances there is nothing a judge can do to relieve the 'unfair consequences' to Mr Pindan.
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129 The question for determination as to whether proceedings under the Act against Mr Pindan should be stayed on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of a criminal prosecution but adapted to take account of the differences between the two kinds of proceedings.
130 I must give weight to the protective character of proceedings under the Act and the Acts object of protecting the public from serious sexual offenders who, if they were to be released at the end of their sentence, would represent a serious threat to the safety of other people. Walton v Gardiner at 396: Fardon (Gleeson J) [9]: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 per Deane J at 495.
131 Mr Pindan's personal circumstances, as described, are factors or considerations to be taken into account in deciding this application. I accept that his mental impairment makes is practically impossible for him to personally participate in any meaningful way in a defence of the DPP's application or to provide instructions to counsel in respect of the DPP's application. Given his mental impairment, the criminal law would not permit Mr Pindan to be tried for a serious criminal offence. The proceedings under the Act may also have dire consequences for Mr Pindan in that if he is found to be a dangerous sexual offender and a continuing detention order is made he will have to remain in custody indefinitely subject to annual reviews by this court. This would be in circumstances where he is very unlikely to be convicted in the future of any serious sexual offence because he is not mentally fit to stand trial.
132 There are only a limited number of things I, the judge hearing the DPP’s application, can do to ameliorate the effect of Mr Pindan’s inability to participate in the proceedings. I can and will try and ensure that he is represented by able counsel, as he has been to date. I can and will take into account his inability to answer allegations when the answers are known only to him and, when having regard to Mr Pindan’s failure to co-operate with the psychiatrists or to participate in rehabilitation programs, I will take into account that his lack of participation is not wilful.
133 I also weigh in the balancing process Dr Febbo and Dr Wynn Owen's opinions that they have been able to conduct valid risk assessments despite Mr Pindan's mental impairment.
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134 I also take into account the principles stated by Brennan CJ in Nicholas. Applied to the facts of this case, they may be summarised in the following way. Parliament has prescribed that the Act must be applied by this court and, given that it is valid (Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575), my opinion as to the justice, propriety or utility of the law is immaterial. To hold that my opinion as to the effect of a law on the public perception of the court is a criterion of whether Mr Pindan should meet the DPP’s application, would be to ‘assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power’. My duty in determining this application for a stay is to apply the law as enacted by parliament, without regard to my personal opinion of it. This is ‘the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice’: Fardon [23] (Gleeson CJ); Nicholas [37] (Brennan CJ).
135 Whilst statutes, like the Act, are recent creations of Parliament, statutes which require or permit the detention of persons who are unable through mental impairment to participate in judicial proceedings which may result in their detention are not unknown to the law. For example, the Bail Act 1982 (WA) permits the detention in custody of a mentally ill or a mentally impaired accused, even though he or she may never be found guilty of the offence with which they are charged and may be unable to participate in the proceedings relating to the charge, including bail proceedings. Another example is the CLMIA Act which empowers a court to hold a hearing to determine whether an accused is fit to stand trial and to determine whether such an accused should be detained indefinitely, even though the accused may not be able to play any meaningful role in the proceedings and the accused may never face trial on the charge which have been laid against him or her.
136 In Western Australia and elsewhere in years gone by, legislation has provided for the preventative detention of various categories of people who may not have been able to participate in court proceedings or may not have even been convicted of an offence. See for examples Criminal Code (WA), s 652 (deleted) and s 653 (deleted) and the Inebriates Act 1912 (NSW).
137 Whilst there has been much criticism over the years of indefinite imprisonment and detention at the Governor's pleasure, I know of no instance where a court has declined to exercise jurisdiction in such a case
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- because the subject of the case could not participate in it, due to mental impairment.
138 The determinative factor in deciding whether the DPP’s application is an abuse of process because Mr Pindan can not participate personally in it is the intention of the legislature as disclosed in the terms of the Act. Parliament intended and has provided that an ‘offender’ who is a ‘serious danger to the community’, whether or not they are mentally impaired or fit to stand trial on any serious criminal offence in the future, should be subject to orders under the Act. This being my conclusion, it would be contrary to my judicial duty to find that the DPP's application ought to be stayed as an abuse of process because Mr Pindan is mentally impaired, not mentally fit to be tried and, because of his mental impairment, is also unable to participate personally in the defence of the DPP’s application. To so order would be to assert a judicial veto over the will of parliament as expressed in a valid statute.
139 For these reasons I decline to grant a stay of the DPP’s application.
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