GBT v The State of Western Australia

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GBT -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 40
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   13 FEBRUARY 2019
DELIVERED          :   28 FEBRUARY 2019
FILE NO/S:   CACR 101 of 2018
BETWEEN:   GBT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MARTINO J
Citation: THE STATE OF WESTERN AUSTRALIA -v- GBT [2017] WASC 337
File Number             :   DSO 1 of 2017

Catchwords:

Criminal law - Dangerous Sexual Offenders - Requirement of order for examination of offender by two qualified experts - Where qualified expert may be a psychologist holding prescribed qualifications or accreditations - Whether a psychologist can be a qualified expert where no qualifications or accreditations are prescribed - Whether court has power to make a continuing detention order in the absence of reports of two qualified experts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 3, s 4, s 7, s 11, s 14, s 17, s 34, s 37.

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr P M Usher

Solicitors:

Appellant	:	DG Price & Co
Respondent	:	The Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Downey v Pryor (1960) 103 CLR 353
Insurance Commissioner of the State Motor Car Insurance Office v Denning (1970) 120 CLR 437
The Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217

JUDGMENT OF THE COURT:

Summary

On 24 November 2017, Martino J made a continuing detention order in respect of the appellant under the Dangerous Sexual Offenders Act 2006 (WA) (Act). His Honour had before him the reports of a psychiatrist, Dr Wynn Owen, and a psychologist, Ms Place, who Jenkins J had named as 'qualified experts' in an order made on 5 September 2017.
The appellant now appeals against the continuing detention order. The appellant says that a psychologist can only be a qualified expert within the meaning of the Act if he or she holds a qualification or accreditation prescribed for the purposes of the definition of 'qualified psychologist' in s 3 of the Act. The appellant contends that Ms Place could not have been a qualified psychologist in 2017, as no regulations prescribing qualifications or accreditations had been made at that time. As a consequence, the appellant contends that the primary court lacked power to make a continuing detention order and Martino J's order made on 24 November 2017 should be set aside.
For the following reasons, we accept that Ms Place was not, at the time of the hearing before Martino J, actually a 'qualified psychologist' or a 'qualified expert' for the purposes of the Act. This is due to the absence of a regulation prescribing qualifications or accreditations at that time. However, we do not accept that the absence of two reports of qualified experts deprived Martino J of the power to make a continuing detention order. As there is no basis for setting aside the continuing detention order, the appeal should be dismissed.

Legislative provisions

Objects of the Act

Section 4 of the Act provides that the objects of the Act are:
(a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community and of victims; and
(b)to provide for continuing control, care, or treatment, of persons of a particular class.

Application by the State

Section 8(1) of the Act provides for the respondent (State) to file with the Supreme Court an application for orders under s 14 of the Act and for a 'Division 2 order' in relation to a person (the offender) who is, relevantly, under a custodial sentence for a serious sexual offence. By s 8(3), if the offender is in custody, an application under subsection (1) cannot be filed unless there is a possibility that the offender might be released from custody within the period of one year after the application is made. Section 10 of the Act relevantly provides that an application under section 8 may proceed and the offender may be dealt with in accordance with the Act even if, while the application is pending, the offender ceases to be under a custodial sentence.

Preliminary hearing

Under s 11(1) of the Act:
After an application is filed under section 8, the proper officer of the court must fix a day for the matter to come before the court for a preliminary hearing.
Section 11(3) of the Act identifies the main purpose of a preliminary hearing as being:
to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community
Section 14(1) of the Act provides:
At a preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to subsection (2A), fix a day for the hearing of the application for a Division 2 order.
Section 14(2A) of the Act provides for the court to defer fixing a day for the hearing of the application for a Division 2 order where the offender is charged with a further offence and that charge has not been dealt with. If the court considers that the interests of justice require that the application for a Division 2 order should not be heard until that charge has been dealt with, it may defer fixing the day until the charge has been dealt with.
Section 14(2)(a) of the Act provides that:
If the court is satisfied as described in subsection (1) -
(a)the court must order that the offender undergo examinations by 2 qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with section 37 to be used on the hearing of the application;
Section 3 of the Act defines a 'qualified expert' to mean a psychiatrist or a qualified psychologist. Section 3 also provides:
qualified psychologist means a psychologist holding a qualification or accreditation prescribed for the purposes of this definition.
The terms 'psychiatrist' and 'psychologist' have the meanings given to those terms in s 4 of the Mental Health Act 2014 (WA).
Under the Mental Health Act, a psychiatrist means:
(1)a medical practitioner who is a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or
(2)a person, or person in a class of person, prescribed by regulation for the purposes of that definition. The regulations prescribe:
(a)medical practitioners who hold specialist registration under the National Law[1] in the speciality of psychiatry;
(b)medical practitioners who hold limited registration under the National Law that enables the medical practitioner to practise in the speciality of psychiatry; and
(c)certain named persons.[2]
[1] Being the National Law applied by the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
[2] Reg 4A of the Mental Health Regulations 2015 (WA).
The Mental Health Act defines a psychologist to mean a person registered under National Law in the psychology profession.
Section 14(2)(b) of the Act provides that:
If the court is satisfied as described in subsection (1):
(b)the court may -
(i)if the offender is in custody and might otherwise be released from custody before the application is finally decided, order that the offender be detained in custody for the period stated in the order;
(ii)if the offender is not in custody, order that the offender be detained in custody for the period stated in the order.

Hearing of the application for a Division 2 order

Section 17(1) and s 17(2) of the Act provide:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
An order made under s 17(1)(a) of the Act is a 'continuing detention order'. An order made under s 17(1)(b) is a 'supervision order'.[3]
[3] Section 3 of the Act.
As to when an offender is a 'serious danger to the community', s 7(1) of the Act provides:
Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must 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.
Section 7(2) provides for the State to have the onus of satisfying the court of that matter, and provides that the court must be satisfied by acceptable and cogent evidence and to a high degree of probability.
The ordinary rules of evidence apply in the proceedings, except as modified by s 42(4) of the Act.[4] Under s 42(4)(d), the court may receive in evidence 'any relevant material of the kind mentioned in section 7(3) relating to a person'.
[4] Section 42(3) of the Act.
Section 7(3) of the Act provides that, in deciding whether to find that a person is a serious danger to the community, the court must have regard to specified matters. Those matters include:
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person
The matters to which the court must have regard also include 'any other relevant matter'.
If the court is satisfied that there is an 'unacceptable risk' of the kind referred to in s 7(1) of the Act, then the offender will necessarily meet the statutory criteria of being a 'serious danger to the community'.[5] For this purpose, an 'unacceptable risk' is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the respondent offending, the type of sexual offence the offender is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the court is required to consider whether, having regard to the likelihood of the respondent offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that he has already been punished for the offences he has actually committed, it is necessary in the interests of the community to ensure that the respondent is subject to further control or detention. [6]

Effect of Division 2 order

[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21].

[6] GTR [26], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63].

Under s 25 of the Act, a continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the Supreme Court. Under s 26 of the Act, a supervision order has effect in accordance with its terms.

Reporter's obligations under s 37 of the Act

Section 37 of the Act provides:
(1)A qualified expert ordered or engaged to provide a report in relation to a person under this section must -
(a)examine the subject; and
(b)prepare an independent report.
(2)The report must indicate -
(a)the reporter's assessment of the level of risk that, if the subject were not subject to a continuing detention order or a supervision order, the subject would commit a serious sexual offence; and
(b)the reasons for the reporter's assessment.
(3)The reporter must have regard to any report or information given under section 38(1).
(4)The reporter must prepare the report even if the subject does not cooperate, or does not cooperate fully, in the examination.
Section 38 provides for the provision of information to a reporter.

Appeals

A person in relation to whom the court makes a decision under the Act has a right of appeal against that decision, under s 34(1) of the Act. By s 34(2), unless this court otherwise orders, the appeal cannot be commenced later than 21 days after the date of the decision.
Section 36(1) of the Act provides that an appeal is by way of rehearing. Section 36(2) of the Act provides:
The Court of Appeal -
(a)has all the powers and duties of the court making the decision against which the appeal is made; and
(b)may draw inferences of fact, not inconsistent with the findings of the court making the decision against which the appeal is made; and
(c)may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit, or in another way.

Procedural history

Application and preliminary hearing

By application dated 21 June 2017, the State applied for orders under s 14 and s 17(1) of the Act in relation to the appellant, pursuant to s 8 of the Act.[7]
[7] AB 33.
The preliminary hearing for orders under s 14 of the Act took place before Jenkins J on 5 September 2017. The appellant did not oppose the making of orders sought by the State under s 14 of the Act. However, the appellant indicated that he would oppose the application for orders under s 17 of the Act.[8] Her Honour then delivered short ex tempore reasons indicating that she was satisfied that there were reasonable grounds for believing that the court might find that the appellant is a serious danger to the community.
[8] Primary ts 9.
After delivering those extempore reasons, Jenkins J discussed the form of the orders the State proposed. Her Honour expressed reservations about the psychologist nominated in the State's minute of proposed orders.[9] The matter was left on the basis that the State would provide the court with the name and curriculum vitae of another psychologist, following which her Honour would make the orders and provide them to the parties.[10]
[9] Primary ts 14.
[10] Primary ts 12 - 17.
Jenkins J subsequently made orders that:
1The application for a Division 2 order … be heard on 15 November 2017.
2.The [appellant] undergo examination by two qualified experts, namely Dr Peter Wynn Owen psychiatrist and Ms Chantelle Place psychologist for the purposes of preparing the reports as required by [s 37 of the Act] that are to be used on the hearing of the application for the Division 2 order.
Jenkins J also made other programming orders and ordered that the appellant be detained in custody until the conclusion of the hearing and judgment on the application for a Division 2 order, pursuant to the Act.

Psychological report

As required by the above orders, Ms Place prepared a psychological report for the court dated 25 October 2017. In that report, Ms Place indicated that she was a 'fully registered psychologist with the Australian Health Practitioner Regulation Agency holding a Masters in Forensic Psychology and endorsement as a forensic psychologist'. She said:
I have several years of experience working in a variety of forensic contexts in Queensland, South Australia and Western Australia. In this time I have provided psychological assessment and intervention to various offenders including Dangerous Sexual Offenders. I have also provided a range of psychological reports to the Prisoner Review Board as well as judicial bodies including Magistrates Court, District Court and Supreme Court. I have also provided expert testimony in District Court and Supreme Court as required. I am trained in a number of risk assessment tools for violent and sexual offending. In my current role with the Forensic Psychological Service (FPS) Team I provide consultancy, assessment and intervention to a range of offenders including Dangerous Sexual Offenders.
Ms Place subsequently adopted the statement of qualifications in her evidence at the hearing of the application for Division 2 orders.[11] Ms Place was not cross-examined in relation to her qualifications at the hearing of the application for Division 2 orders.

Division 2 order

[11] Primary ts 76.

Martino J heard the State's application for Division 2 orders on 15 November 2017. His Honour published written reasons on 24 November 2017. After having regard to matters including a psychologist's report prepared by Ms Place, Martino J indicated that:[12]
I am satisfied to a high degree of probability that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit serious sexual offences. I find that he is a serious danger to the community.
[12] Primary Decision [161].
Martino J then decided to order that the appellant be detained in custody for an indefinite term for control.[13]
[13] Primary Decision [172]. The continuing detention order appears at AB 34.
The question of whether Ms Place was a qualified expert was not the subject of submissions before Martino J.

Late lodgement of appeal notice

The appellant's solicitor deposes that, at the time of the hearing of the application for Division 2 orders, the parties and the court 'were unaware that Ms Place could not meet the qualifications under the Act as such qualifications had not been prescribed'. She deposes that the appellant's senior counsel became aware of the issue by virtue of a letter from the State dated 28 February 2018 sent to the appellant, which the appellant forwarded to senior counsel on 12 March 2018. On 14 March 2018, senior counsel then applied for a grant of legal aid to appeal against the order, and received a grant of aid on 23 March 2018. Senior counsel confirmed his instructions to appeal on 26 April 2018. An appeal notice and application for an extension of time in which to appeal were filed on 30 May 2018.

Issues raised by the appeal

The appellant appeals against Martino J's continuing detention order of 24 November 2017. The sole ground of appeal is that Martino J 'erred in making a continuing detention order in circumstances where his Honour did not have power to do so'. The particulars to the ground contend that, as at 24 November 2017, there were no regulations prescribing the qualifications or accreditations necessary for a person to be a 'qualified psychologist'. The appellant contends that Ms Place was therefore not a 'qualified psychologist' and, as the court did not have the reports of two 'qualified experts', it did not have power to make a continuing detention order.
Although not pleaded in the ground of appeal, the appellant's written submissions make the alternative contention that Martino J erred by relying upon 'extraneous or irrelevant matters, namely the report of Ms Place when Ms Place was not a "qualified psychologist" as required by the Act'.[14] Whether or not Ms Place was a 'qualified psychologist' or 'qualified expert', there is no merit in the appellant's contention that her report was an irrelevant consideration. Section 7(3)(b) of the Act required the court to have regard to 'any other … psychological assessment relating to' the appellant. The requirement for the court to do so did not depend on a 'qualified psychologist' having prepared the psychological report. The report was admissible in evidence either under s 42(4)(d) of the Act or the common law as to expert evidence. The appellant's counsel ultimately accepted that Martino J was entitled to have regard to Ms Place's report during the course of his oral submissions.[15]
[14] Appellant's submissions, par 22.
[15] Appeal ts 19, 22.

The grounds of appeal and submissions therefore raise the following questions for the court's consideration:
(1)Did the absence of regulations prescribing any qualifications or accreditations for the purposes of the definition of 'qualified psychologist' in s 3 of the Act mean that Ms Place was not a 'qualified psychologist' or a 'qualified expert' for the purposes of the Act?
(2)If the answer to question (1) is 'yes', did the absence of an order for examination by, or reports of, two 'qualified experts' deprive the primary court of power to make a continuing detention order?
We turn to explain why we consider the answer to the first of these questions to be 'yes', and the answer to the second question to be 'no'.

Was Ms Place a qualified psychologist?

Parties' submissions

The appellant submits, in effect, that as there was no prescription for the purposes of the definition of 'qualified psychologist', it was not possible for Ms Place, or anyone else, to be a qualified psychologist.[16] The State agrees with this submission.[17] That is, the parties construe the definition of 'qualified psychologist' as requiring both that there be prescribed qualifications or accreditations and that the person hold a prescribed qualification or accreditation.
[16] Appellant's Submissions, par 16.
[17] Respondent's Submissions, pars 5, 24.
The question of statutory construction raised by this aspect of the ground of appeal is not to be determined by this court merely on the basis of the State's concession. It is necessary for the court to be satisfied that the parties' common position reflects the proper construction of the Act.
Before the hearing, the court wrote to the parties noting a possible alternative construction of the Act, and inviting submissions on that construction. On that alternative construction, the concluding words of the definition of 'qualified psychologist':
holding a qualification or accreditation prescribed for the purposes of this definition
are words of limitation which only operate if regulations prescribe qualifications or accreditations. On that construction, if there are no prescribed qualifications or accreditations then a psychologist need hold no other qualification or accreditation in order to be a qualified psychologist.
The appellant filed supplementary written submissions and made oral submissions in support of his construction. The State ultimately maintained its concession as to the correctness of the appellant's construction of the definition of 'qualified psychologist'.[18]

Case law

[18] Appeal ts 40 - 41.

Determining the legal effect of a failure to make regulations prescribing matters contemplated by an enabling Act is a question of construing the enabling Act. The question has arisen in a number of different contexts, and the outcome depends on the language, purpose, structure and context of the particular provision.
A number of decisions of the High Court illustrate the approach. The fact that there was a division in judicial opinion in each case illustrates the difficulties which may arise in determining the effect of the absence of a prescription. All of the cases were decided in statutory contexts very different from the present.
The Commonwealth v Huon Transport Pty Ltd,[19] involved the Commonwealth purporting to requisition two steamers. Section 67 of the Defence Act 1903 (Cth) provided:
The owner of any … boat or vessel … required for naval or military purposes, shall, when required to do so by an officer authorized in that behalf by the regulations, furnish it for those purposes, and shall be recompensed therefor in the manner prescribed. (emphasis added)
[19] The Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293.
No regulations were made for the purposes of this section. All members of the court accepted that the absence of prescription of a manner of recompense did not prevent the court from assessing compensation. However, the court divided on the question of the legal effect of the absence of any regulation authorising an officer to requisition vessels.
Latham CJ took the view that the operation of s 67 depended upon the regulations giving authority to an officer and, as no regulations had been made, it was impossible for the authority to exist.[20] McTiernan J took a similar view.[21] Their Honours approached the case on the basis that there was an implied promise on the part of the Commonwealth to pay a fair hire for the vessels.
[20] Huon Transport (297).
[21] Huon Transport (327).
Rich, Starke, Dixon and Williams J proceeded on the basis that s 67 authorised the requisition despite the absence of regulations.[22] Starke and Williams JJ appeared to resolve the issue by reference to the pleadings. While Rich J referred to the pleaded cases, he also observed:[23]
It is true that s 67 provides for regulations and that none was made. But I am unable to think that the legislature intended to suspend the operation of so important a power until regulations laying down procedure and scales of compensation were forthcoming.
[22] Huon Transport (Rich J) (305 - 306), (Starke J) (311 - 312), (Dixon J) (316 - 317) and (Williams J) (330).
[23] Huon Transport (305 - 306).
Dixon J observed:[24]
A better interpretation to place upon s. 67 is that it empowers the executive to regulate the use of the authority it gives to naval and military officers and to prescribe the manner of compensating owners of property taken, but that it does not intend its operation to await the making of the regulations. If regulations are not made, the responsibility for the exercise of the authority it confers must be a matter of naval or military discipline and the recompense must be worked out upon general legal principles. The situation is analogous to that which arises when a new jurisdiction or power is given to a court or tribunal to be exercised according to a procedure to be prescribed by rules or regulations and no rules or regulations are made. Prima facie the court or tribunal, in such a case, must work out some appropriate and reasonable procedure for giving effect to the enactment. (citations omitted)
[24] Huon Transport (316 - 317).
In Downey v Pryor,[25] officers of a local government were charged with an offence of not permitting an elector to inspect books of account as authorised by the Local Government Act 1919 (NSW). Section 215 of that Act relevantly gave an elector the right to inspect books of account 'as prescribed'. As there was no relevant prescription under the Act, the defendants contended that s 215 did not authorise inspection of any books of account.
[25] Downey v Pryor (1960) 103 CLR 353.
A majority of the court (Kitto and Windeyer JJ, McTiernan J dissenting) rejected the defendant's submission. Kitto J observed:[26]
No doubt the introduction, into a provision conferring a right, power or authority (it will suffice to speak of an authority), of words requiring that in exercising the authority a prescribed method (to use the word in a comprehensive sense) shall be observed, may have either of two results. Upon consideration of the words themselves, the context and the nature of the provision, the intention may appear that a prescribed method is of the essence of the authority, so that there is no authority capable of exercise at any given time unless at that time a valid prescription of a method is in force. But on the other hand the meaning may be that the authority is subject to a power in the Executive to regulate its exercise and that in the reference to the prescribed method the words "if any" are to be implied. In the latter class of cases, a person exercising the authority must observe any method which is prescribed for the time being; but if none is prescribed the authority is exercisable by any appropriate method. (citations omitted).
[26] Downey (361 - 362).
Kitto J found s 215 fell into the latter class, having regard to a number of features of the legislation. His Honour construed 'as prescribed' to mean 'observing any regulatory provisions which may be contained in the ordinances for the time being in force'.[27]
[27] Downey (362 - 363).
In the course of agreeing with this construction of the provision, Windeyer J observed:[28]
This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed. In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed-for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed. There are several provisions of the Local Government Act in which the words "as prescribed" have that result-for example s. 90 (1), which requires a council to appoint an engineer, "who shall hold a certificate as prescribed". But that does not mean that wherever the words "as prescribed" appear in the Act in connexion with a right or duty, no right is created or duty imposed until something be prescribed. (citations omitted)
[28] Downey (364).
McTiernan J, in dissent, took the view that the words 'as prescribed' were an essential part of what s 215 enacted for giving a right to an elector to inspect books of account. No complete right of inspection arose until a prescription was made, so that s 215 was 'only an inchoate enactment'.[29]
[29] Downey (359).
In Insurance Commissioner of the State Motor Car Insurance Office v Denning,[30] s 42(7) of the Motor Car Act 1958 (Vic) provided that on receipt of a form nominating an authorised insurer and the appropriate insurance premium, the owner of the motor vehicle and the insurer:
shall be deemed to have entered into a contract of insurance under this Division in the form prescribed.
[30] Insurance Commissioner of the State Motor Car Insurance Office v Denning (1970) 120 CLR 437.
At the relevant time there was no form prescribed. The Insurance Commissioner conceded that an insurance contract arose in the form of the statutory requirements. However, McTiernan and Taylor JJ were not prepared to act on the concession. In their view, there was nothing ambiguous in the concluding words of s 42(7). In the absence of a prescribed form, the provision could not be converted into a provision deeming an owner and insurer to have entered into 'a contract in the form of the statutory requirements'.[31]
[31] Denning (444.)
By contrast, Kitto J considered such a literal reading of the provision to be inconsistent with the legislative intention. He construed the true meaning of the words as being 'and if there is a form prescribed at the material time the contract shall be deemed to be in that form'.[32]
[32] Denning (449 - 451).
Barwick CJ and Menzies J accepted the Insurance Commissioner's concession by reference to the operation of other provisions of the Motor Vehicle Act.[33]
[33] Denning (438 - 439), (453).
The above cases indicate that the legal effect of a failure to make a prescription contemplated by an enabling Act will very much depend on the context in which the question is asked. In some cases, even where the more natural literal meaning of the provision suggests it may not operate in the absence of a regulation, the subject matter, purpose or context of the legislation may lead the court to a different view. The answer to the question will turn on the application of the rules of statutory construction to the particular statute in question.

Consideration

For the following reasons, the appellant's construction of the definition of 'qualified psychologist' should be accepted. Ms Place was not a qualified psychologist at the time of the hearing before Martino J because there were no regulations prescribing qualifications or accreditations for the purpose of the definition of 'qualified psychologist'.
First, the appellant's construction better reflects the natural and ordinary meaning of the statutory text of the definition of 'qualified psychologist'. As a matter of ordinary language, a person can only hold a prescribed qualification or accreditation if a qualification or accreditation has been prescribed. The alternative construction would have the effect that a qualified psychologist would, in the absence of regulations, simply be any psychologist. However, the ordinary meaning of the reference to a 'qualified psychologist' is that not all psychologists are qualified.
Further, the alternative construction involves reading the definition as if it contained additional words, such '(if any)' after the words 'qualification or accreditation prescribed'. The cases referred to above illustrate that this can be done in appropriate circumstances. However, the appellant's construction, which does not involve reading the statutory text as if it contained additional words, better fits the natural and ordinary meaning of the statutory text. This is a factor which counts in favour of the appellant's construction, and against the adoption of the alternative construction.
Secondly, the legislative history supports the conclusion that it was not intended that any psychologist could be named as a qualified expert.
As originally enacted, s 14(2)(a) of the Act required the court to order that the offender undergo examinations by two psychiatrists. The Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (Amendment Act), which came into force on 10 September 2016, modified the provision to its current form. At the same time, s 14(2)(ba) was introduced, which permitted the court to order that a named person or body prepare a report to be used on the hearing of the application for Division 2 orders on questions or topics set out in the order.[34]
[34] Sections 4 and 13 of the Amendment Act.
The explanatory memorandum to the Bill for the Amendment Act gave the following explanation of the purpose of amending s 14(2)(a) of the Act:[35]
Clause 13 also proposes to delete section 14(2)(a) of the [Act] and replace it as follows: to allow suitably qualified psychologists to conduct examinations and provide reports, in addition to requiring that at least one of the qualified experts that the court orders the offender to undergo examination by (for the purpose of preparing reports to be used on the hearing of the application) must be a psychiatrist. (The current formulation is for two psychiatrists to examine and provide reports.)
[35] Explanatory Memorandum, Dangerous Sexual Offenders Legislation Amendment Bill 2015 (WA).
No specific mention of the amendment to s 14(2)(a) was made in the Minister's second reading speech to the Bill for the Amendment Act.
Before the Amendment Act, reports of two psychiatrists were required. The Amendment Act expanded the range of experts who could be appointed to give a report, so that one of the experts could be a 'qualified psychologist'. But, as reflected in the text of the definition of 'qualified expert' and the explanatory memorandum, not every psychologist was to be a 'qualified expert'. Rather, as stated in the explanatory memorandum, it was proposed only to allow 'suitably qualified psychologists' to undertake the examination and make the report.
Thirdly, the appellant's construction of the Act does not produce an unreasonable or unusual outcome, or prevent the Act from operating according to its terms in the absence of a regulation. The appellant's construction allows the Act to operate by the court appointing two psychiatrists as qualified experts, as was required before the amendment. The Amendment Act in effect gave the executive government the option of enabling a psychologist to be one of the qualified experts the court is permitted to name. But before the executive government could take up that option, it was required to make regulations, which would be subject to Parliamentary disallowance.[36] Those regulations must identify the qualifications or accreditations which a psychologist must hold before the court can appoint the psychologist to undertake an examination.
[36] Interpretation Act 1984 (WA), s 42.
A factor counting against the appellant's construction is that the Act does not give a qualified psychologist any right to prepare a report or give the parties any right to appoint a psychologist to prepare a report as required by s 37 of the Act for the purposes of a Division 2 hearing. Section 14(2)(a) requires that the psychologist be named by the court. As occurred in the present case, before naming a qualified expert the court will satisfy itself that the person is qualified to express the opinions he or she will be asked to give. That counts against the court's capacity to name a psychologist depending on the existence of regulations prescribing qualifications. It might be thought that the court could be left to make its own judgment, in the absence of any prescription, as to the suitability of the psychologist it will appoint. However, while this aspect of the legislative context might be seen as supporting the alternative construction, it is outweighed by the matters referred to at [64] - [71] above.
In our view, the better construction of the Act is that which the parties have adopted. For a psychologist to be a 'qualified psychologist', and therefore a 'qualified expert', for the purposes of the Act, there must be prescribed qualifications or accreditations and that person must hold a prescribed qualification or accreditation. It follows that, in the absence of a regulation prescribing qualifications or accreditations for the purposes of the definition of 'qualified psychologist', Ms Place was not a qualified psychologist at the time of the hearing before Martino J.
We note that regulations have now been made prescribing a master's degree or higher in psychology as a qualification for the purposes of the definition of 'qualified psychologist'.[37] It follows that Ms Place is now a qualified psychologist and a qualified expert for the purposes of the Act. However, the question of Martino J's power to make a continuing detention order must be answered by reference to the law in force when the continuing detention order was made. It is therefore necessary to turn to the second question identified at [40] above, and consider whether the absence of reports by two 'qualified experts' deprived Martino J of power to make a continuing detention order?
[37] Reg 3 of the Dangerous Sexual Offenders Regulations 2018 (WA).

Power to make a continuing detention order

Appellant's submissions

The appellant contends that, as the court did not have the reports of two qualified experts, it did not have the power to make a continuing detention order.[38] As explained in oral submissions, that argument relied on s 14(2)(a) of the Act, which provides that:
(1)a court 'must order that the offender undergo examinations by 2 qualified experts named by the court'; and
(2)those examinations are for the purposes of preparing reports 'to be used on the hearing of the application'.
Counsel for the appellant did not identify any other significant feature of the statutory scheme which informed the implied limitation of power for which he contended.
[38] Appellant's Submissions, par 17.
Ms Place was not, and due to the absence of regulation could not have been, a qualified expert. Therefore, order 2 of the orders Jenkins J made on 5 September 2017 (set out at [30] above) did not comply with s 14(2)(a) of the Act. That was because there was a failure to order that the appellant undergo examinations by '2 qualified experts'. However, the appellant must impugn the continuing detention order which Martino J subsequently made. The question of statutory construction which then arises is whether the failure to properly make an order under s 14(2)(a) at the preliminary hearing, or the absence of reports of two qualified experts, deprives the court of its power to make a Division 2 order? As the Act does not expressly deprive the court of the power to make a Division 2 order in those circumstances, any limitation in the court's power must arise by implication.

In oral submissions, counsel for the appellant put the argument he derived from s 14(2)(a) in three different ways. He contended that the absence of two expert reports implicitly deprived the court of the capacity to:
(1)hold a hearing of an application for a Division 2 order;
(2)find that the offender is a serious danger to the community; or
(3)make a continuing detention order.
Counsel for the appellant identified the third of these options as his primary argument, followed by the second. He advanced the first option only faintly, but did not abandon the argument.[39] We turn to consider the merit of each of the alternative contentions.

Power to hold a hearing

[39] Appeal ts 22.

The power to make a Division 2 order arises under s 17(1) of the Act if the 'court hearing an application for a Division 2 order' makes a relevant finding. The argument is that the power can only be exercised after a hearing. The appellant says that the legislative policy apparent in s 14(2)(a) implies that there is no power to hold a hearing in the absence of reports of two qualified experts.
It is hard to reconcile the appellant's construction with the language and structure of the Act. The obligation to make an order under s 14(2)(a) arises only once the court is satisfied that there are reasonable grounds for believing that the court might find the offender to be a serious danger to the community. That state of satisfaction also gives rise to a concurrent obligation to fix a day for hearing the application for a Division 2 order under s 14(1). The requirement to fix a day for hearing the application for a Division 2 order arises independently of orders being made under s 14(2)(a) of the Act. That counts against the existence of the court's power to hold a hearing being contingent on the making of an order under s 14(2)(a), or compliance with that order.
The language of s 7(3)(a) of the Act also counts against the appellant's construction. Section 7(3)(a) of the Act specifically requires the court to have regard to 'any report that a psychiatrist prepares as required by' s 37 of the Act 'for the hearing of the application'. The reference to 'any' report suggests that the court can decide whether to find a person to be a serious danger to the community without a psychiatrist's report prepared as required by s 37 of the Act for the hearing of the application. That reference is made in a context where at least one of the qualified experts named in an order under s 14(2)(a) is to be a psychiatrist. Section 7(3)(a) of the Act contemplates that a hearing might be held without the court having the benefit of such a psychiatrist's report. This counts against a qualified expert's report being necessary before the court can lawfully hold a Division 2 hearing.
Moreover, s 7(3)(b) requires the court to have regard to, relevantly, any psychological assessment, without referring to or stipulating whether the assessment was made in the context of a psychologist's report prepared as required by s 37 of the Act. More generally, nothing in the enumeration of mandatory relevant considerations by s 7(3) requires or assumes the presence of a report of a qualified psychologist prepared as required by s 37 of the Act.
Further, effect can be given to the legislative policy reflected in s 14(2)(a) by the exercise of the court's discretion to adjourn the Division 2 hearing from the date fixed by an order made under s 14(1) of the Act. The court will be required to take account of that legislative policy in determining any application to adjourn the Division 2 hearing.
A party to the proceedings may request an adjournment because, for some reason, the court does not have the reports of two qualified experts. Ordinarily, the only reasonable manner in which the court's discretion would be exercised in such a case would be to adjourn the hearing. That would be so because of the legislative policy that a court conducting the hearing of the application for a Division 2 order, and the parties, should have the benefit of reports by two qualified experts.
However, there will be circumstances where an adjournment because of the absence of reports from two qualified experts will work an injustice to the offender. The potential for such injustice may arise particularly where, as is ordinarily the case, the court makes an order under s 14(2)(b) requiring that the offender be detained until the determination of the application for a Division 2 order.
For example, the reason for the absence of an expert report may be that the State has defaulted in securing the engagement of a named expert. Alternatively, the evidence available at a Division 2 hearing may clearly indicate, in a manner both parties accept, that the offender is not a serious danger to the community or that a supervision order may reduce the risk he poses to acceptable levels. In the above cases, it may be unfair to an offender to require his continuing detention while the reports of qualified experts are obtained.
The potential for injustice of the kind described above counts against an implication that the court lacks power to hear an application for a Division 2 order in the absence of two expert reports. The preferable construction is that the consequences of the absence of a qualified expert report is left to the exercise of the court's discretion to adjourn the Division 2 hearing.
In this appeal, the appellant attacks only the existence of the court's power to hear an application of a Division 2 order. The appellant does not assert that Martino J erred in failing to exercise his discretion to adjourn the hearing of the application for Division 2 orders. In any event, we am not satisfied that Martino J made any appellable error in not adjourning the hearing in the circumstances of this case. There was no application for an adjournment, no challenge to the qualifications of either expert and Ms Place was, as a matter of fact, well qualified to express the relevant opinions.
Although not specifically referred to in submissions, some support for the appellant's argument might be found in the concluding words of s 14(2)(a) of the Act. They provide that the order is to be for the offender to undergo examination 'for the purposes of preparing reports in accordance with section 37 to be used on the hearing of the application'. It might be argued that the italicised words contemplate that there will be reports prepared in accordance with s 37 available for use on the hearing of the application. However, this language is used to identify the purpose of the examination which the court is to order, rather than identify the material which a court must have before it can conduct a Division 2 hearing. In any event, to the extent this language supports the appellant's argument, it is outweighed by the other matters to which we have referred at [79] - [87] above.

Power to find that the offender is a serious danger to the community

Alternatively, the appellant contends that the court lacks the capacity to find that an offender is a serious danger to the community in the absence of two reports of qualified experts. The power to make a continuing detention order arises under s 17 of the Act only once the court finds that the offender is a serious danger to the community. If the court lacks the capacity to make such a finding, that condition for the existence of the power to make a continuing detention order cannot be satisfied.
We do not accept the submission that the court lacks the capacity to find that the offender is a serious danger to the community in the absence of the reports of two qualified experts. That argument is inconsistent with the language and structure of s 7 of the Act.
Section 7(2)(a) requires that the court must be satisfied of the matter referred to in s 7(1) of the Act 'by acceptable and cogent evidence'.[40] The section does not specify any particular type of evidence which might constitute evidence of that kind.
[40] As to which, see GTR [34].
The language of s 7(3)(a) of the Act, referred to at [81] above, also counts against accepting this aspect of the appellant's submissions. The reference to 'any' report indicates that the court can find a person to be a serious danger to the community without a psychiatrist's report prepared as required by s 37 of the Act. As noted above, that reference is made in a context where at least one of the qualified experts named in an order under s 14(2)(a) is to be a psychiatrist.
The absence of a qualified expert's report need not be due to a failure to comply with s 14(2)(a) of the Act. It may be that one of the properly named qualified experts is, for some reason, unable or unwilling to prepare a report before the Division 2 hearing. A report might be prepared otherwise than in accordance with s 37 of the Act. The court may lack a qualified expert's report at a Division 2 hearing even if an order is properly made under s 14(2)(a) of the Act. The practical effect of the absence of a report on the court's capacity to make a finding does not differ according to the causes of that absence. There is no obvious reason why the legal consequences should differ according to whether the absence of the report is due to a failure to comply with s 14(2)(a), or some other cause. This counts against a finding under s 7(1) being implicitly prohibited where there has been a failure to comply with s 14(2)(a) of the Act.
In this manner, the language of s 7(3)(a) of the Act also counts against a qualified expert's report being necessary before the court can be satisfied that an offender is a serious danger to the community.
Further, we repeat what we have said at [82] above. The structure of s 7 does not distinguish between the way in which the reports of qualified psychologists and other psychologists are to be regarded when the court decides whether a person is a serious danger to the community.
Finally, s 7 does not require the court to accept or give any particular weight to the report of qualified experts. The court alone bears the responsibility for deciding whether or not the offender is a serious danger to the community and, if so, whether to make a continuing detention order or a supervision order.[41] A court can find that a person is a serious danger to the community while rejecting the opinions of a qualified expert. This feature of the Act counts against there being an implied prohibition on making the same finding in the absence of a qualified expert's report.

Power to make a Division 2 order

[41] See GTR [57] - [62], [150] - [151]; Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [39], [226] - [228].

The appellant's primary contention is that, while a court can hold a hearing and find a person to be a serious danger to the community in the absence of reports of two qualified experts, it is implicit that it cannot make a continuing detention order without those reports.[42]
[42] Appeal ts 17 - 18, 19 - 20.
That submission is inconsistent with the text and structure of the Act.
The Act requires the court to fix a date for the hearing of an application for a Division 2 order. At that hearing, the court is required to consider whether the offender is a serious danger to the community, and if so satisfied, the court must make either a continuing detention order or a supervision order.[43] The express specification of the circumstances in which the power arises, combined with a duty to exercise the power by making either a continuing detention order or supervision order in those circumstances, cannot be reconciled with additional implicit conditions on the existence of the power.
[43] See GTR [51].
The express objects of the Act also count against an order properly made under s 14(2)(a) being a precondition to the existence of the power to make a continuing detention order. The object of ensuring adequate protection of the community would not be advanced if the court was disabled from making any order in respect of a person it considered to be a serious danger to the community because of a failure to appoint two qualified experts to report on the offender.
The appellant refers to the Attorney General's second reading speech to the Bill for the Act as originally enacted in support of its submissions.[44] However, nothing in that speech provides any indication as to whether the existence of the court's power to make a continuing detention order is contingent on the making of an order under s 14(2)(a), as amended by the Amendment Act, or the existence of reports by two qualified experts.

Disposition

[44] Western Australia, Parliamentary, Legislative Assembly, 9 November 2005, 7005 - 7006 (Mr J A McGinty, Attorney General); see appeal ts 25 - 26.

For the above reasons, we do not accept the appellant's submission that the existence of the court's power to make a continuing detention order depends upon the existence of an order properly made under s 14(2)(a) or reports by two qualified experts.
That is not to say that the court lacks any capacity to deal with a failure of process in relation to the reports of qualified experts. Where the interests of justice so require, the court retains its discretion to adjourn the Division 2 hearing until reports of two qualified experts are obtained. Where a party seeks an adjournment because of the absence of reports by two qualified experts, the court will ordinarily exercise its discretion to adjourn the hearing to allow reports to be obtained. However, the absence of the reports of two qualified experts does not deprive the court of its power to make a continuing detention order in an appropriate case.

Orders

The delay in instituting an appeal has been adequately explained. We would grant the extension of time in which to appeal.
However, the appeal should be dismissed, on the basis that the absence of two reports of qualified experts did not deprive the primary court of power to make the continuing detention order. As noted at [88] above, the ground does not seek to impugn the continuing detention order made in this case other than by reference to the alleged lack of power to make the order.
The appropriate orders are therefore that:
(1)The time for the appellant to commence this appeal is extended to 30 May 2018.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell
28 FEBRUARY 2019

[2019] WASCA 40

28 FEBRUARY 2019

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Dangerous Sexual Offenders

Judicial Review

Statutory Interpretation

Sentencing