In the matter of s35 Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 In the matters of major reviews of: Derek Ernest Percy, Barbara Kay Farrell & "RJO" (Name suppressed).

SUPREME COURT OF VICTORIA

Not Restricted

IN THE MATTER OF S. 35 CRIMES
(MENTAL IMPAIRMENT AND

UNFITNESS TO BE TRIED ACT) 1997

IN THE MATTERS OF MAJOR
REVIEWS OF:

DEREK ERNEST PERCY,	No: 1469 of 1998
BARBARA KAY FARRELL,	No: 1470 of 1998
"RJO" (NAME SUPPRESSED).	No: 1464 of 1998

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JUDGE:	Eames, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 28 August 1998
DATE OF RULING:	18 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 70

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Ruling - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - s. 35(3) - requirement that court be "satisfied" that safety of reviewee or members of public be "seriously endangered" - standard of proof required before judge could be so satisfied.

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APPEARANCES:	Counsel	Solicitors
For the Attorney General	Miss B. King QC	Victorian Government Solicitor
For the Director of Public	Mr W.H. Morgan-Payler QC	Solicitor for Public Prosecutions
Prosecutions
For the Reviewees "RJO"	Dr I. Freckelton	Mental Health Legal Centre Inc.
and Ms Farrell	Victoria Legal Aid
For the Reviewee,	Mr P. Tehan QC with	Victoria Legal Aid
Mr Percy	Ms C. Randazzo
For the Department of	Mr R. Punshon	Russell Kennedy
Human Services

HIS HONOUR:

A number of questions of law relating to the interpretation and effect of provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (hereafter called "the Act") arose during the course of my conduct of three separate hearings, described as "major reviews", pursuant to s. 35 of the Act. These major reviews concerned Derek Ernest Percy, Barbara Kay Farrell and a man whose name has been suppressed and whom I will identify as "RJO". During those individual hearings it became obvious that there were a number of issues of law concerning the interpretation of the Act which were common to all cases. I identified those issues by way of written questions, and I invited submissions on those issues.
The Act is a radical reform of the criminal law, which, among other changes, replaces the common law defence of insanity with a new statutory defence of "mental impairment" and provides new procedures for dealing with persons who are found not to be fit to stand trial, or who are adjudged to be not guilty, by virtue of mental impairment. The Act replaces the system whereby persons found not guilty of offences on the ground of insanity were committed to indefinite detention under the "Governor's Pleasure", to be released, if at all, only by decision of the Governor, upon advice of the Executive. Although the Executive obtained reports from the Adult Parole Board and from treating psychiatrists, and others, the decision was taken in private and without any entitlement for the detainee to directly participate in the decision-making process. It was a notorious matter that many persons were detained for inordinate periods of time, well beyond the length of any sentence which might have been imposed had they been found guilty, and notwithstanding the fact that their mental illness may have been significantly alleviated over time.
The Act, which is concerned with issues of great public importance, came into operation in April 1998. The hearings before me were the first major reviews conducted under its terms. I considered it desirable to gain as much assistance as possible from counsel in determining the appropriate interpretation of the legislative provisions which arise in the three cases before me. As it happened, in many instances the same counsel appeared in all three cases before me. With the consent of all counsel, I held a special hearing, so that counsel for each party appearing in each of the three cases could address me on questions of law which were common to each case.
I have now had the benefit of substantial and helpful oral and written submissions from counsel, and I express my gratitude to the care and thoroughness of those submissions. Although I have yet to conclude the individual hearings in each case, and will address other identified questions of law (to the extent relevant or necessary) when I give my decisions in each case, counsel have urged that I give an early decision on one issue, namely, the standard of proof applicable under s. 35, because that issue will need to be addressed in a number of hearings under the Act which are listed before other judges of the court. I will, therefore, deliver my ruling on this issue in advance of my judgments for the three major reviews.
To understand the issue it is necessary to set out so much of the terms of s. 35 of the Act as it relevant to the present issue. That section reads:

“35. Major reviews

(1) At least 3 months before the end of the nominal term of a supervision order, the court that made the order must undertake a major review.
(2) The purpose of a major review is to determine whether the person subject to the order is able to be released from it.
(3) On a major review, the court -
(a) if the supervision order is a custodial supervision order -

(i)

must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or

(ii)

if so satisfied, must confirm the order or vary the place of custody;

Mr Tehan QC, senior counsel for Mr Percy, submitted that the degree of satisfaction required before I could conclude under s. 35(3)(a)(i) that the safety of the public would be seriously endangered, was proof beyond reasonable doubt. In that submission he was supported by Dr Freckleton, counsel for both “RJO” and Ms Farrell.
The standard of proof required as to facts adverse to the interests of a person being sentenced for an offence is proof beyond reasonable doubt: R v Storey [1998] 1 VR 359. No lesser standard should be applied in the present case, Mr Tehan submitted. Mr Tehan submitted that the issues to be determined have consequences for a detainee to whom the Act applies which are no less serious than those affecting a person being sentenced for the commission of an offence.
There are provisions in the Act whereby a detainee might later make application to have his or her status reduced to that of a non-custodial supervision order notwithstanding an unsuccessful outcome on a major review, but it nonetheless remains the case that an adverse determination under s. 35 - that a reviewee presents a serious danger to himself or herself, or to the public - would result in the reviewee being detained for a continuing indefinite period (see s. 27(1)). Each of the present reviewees has already been subject to a custodial supervision order for at least 25 years. In Mr Percy's case, he has been, and remains, confined in a prison.
Parliament has chosen not to stipulate in s. 35 what standard of persuasion should be applied. Nor has Parliament stated that any party carries an onus of proof under s. 35. Elsewhere in the same Act, however, Parliament has expressly stipulated both where the onus of proof lies and what standard of proof should be applied. Some examples where that occurs are with respect to proof of fitness to stand trial (balance of probabilities: s. 7(3)); the finding of the special verdict that the defendant committed the offence charged (proof beyond reasonable doubt: s. 17(2)); and the defence of mental impairment (balance of probabilities: s. 21(2)).
It was submitted to me by all counsel that the major review under s. 35 does not cast an onus of proof on any person, but is in the nature of a judicial review. The section makes it plain that a reduction of status must arise unless the judge reaches satisfaction on the question of endangerment, thus, whoever took responsibility for establishing that degree of satisfaction, and even if no party took responsibility for persuading the judge, the judge would have to determine the question, anyway, "on the evidence available". It was noted by the majority in Storey, at pp 367-8, that discussion of whether there is any onus of proof on a party in the sentencing process may "obscure rather than illuminate the process". Similar comment may be made with respect to s. 35 hearings.
Elsewhere in the Act the draftsperson has employed the same phrase as is used in s. 35(3) - "satisfied on the evidence available" - and has done so when addressing decisions which are to be made by a judge (s. 32, for an application for variation of a custodial supervision order); where the decision is to be made by the Forensic Leave Panel, which is chaired by a judge (s. 54: in cases of an application for granting on-ground or off-ground leave to a forensic patient); and, where the decision is to be made by either the Secretary of the Department of Human Services, or the Chief Psychiatrist (s. 58: decisions as to suspension of extended leave).
In my opinion, it is reasonable to assume that when precisely the same words are employed in different sections of the same Act the standard of persuasion - whether proof beyond reasonable doubt or on the balance of probabilities - is intended to be the same.
If that be so, then, in my opinion, it is improbable that it was the intention of Parliament that the common standard to be applied, when the phrase "satisfied on the evidence available" was employed, was to be the criminal standard of proof. Were that so then, for example, Parliament must have intended that the Chief Psychiatrist could not act under s. 58 so as to suspend the leave of a forensic patient if, in his or her professional opinion, the psychiatrist was satisfied that the patient's continued presence at large in the community would probably seriously endanger either the public or the patient. Such limitations on the power of the Chief Psychiatrist to act for the protection of the public, or, indeed, the forensic patient, would, thus, be considerably greater than any restrictions imposed upon the responsible persons who, under the Mental Health Act 1986, were given powers to detain members of the public (ie. persons who were not forensic patients on leave in the community, but were merely ordinary citizens) who were exhibiting signs of dangerous mental instability. (See, for example, the powers of detention given to a police officer or a medical practitioner where a number of the public merely “appears” to be mentally ill: ss. 10, 12A of Mental Health Act 1986)
Whilst proof of facts beyond reasonable doubt has been the standard deemed appropriate on sentencing, when determining facts which may be adverse to the interests of the accused in the context of adversarial proceedings (per R v Storey), the task facing the court under s. 35 is not the same as that of a sentencing process, and, in my opinion, different considerations apply which bear upon the standard of persuasion which should be adopted.
As was held in Storey, supra, at 368, and 375, the factors which historically have compelled the standard of proof beyond reasonable doubt to be applied to the proof of guilt, and also to the sentencing process, are those identified by such phrases as the "golden thread" or "the basal requirement of the criminal law". I do not consider that the exercise under s. 35 is concerned with those propositions. That is so notwithstanding the fact that if the court reaches a degree of satisfaction which causes the status of a detainee to remain that of custodial supervision, then the person remains detained for an indefinite term: s. 27. That result may well suggest to the detainee or his or her family that the situation of the detainee is the same as that of a person sentenced to indefinite detention, but there are, in fact, very significant differences in the two situations.
In the first place, s. 35 is not concerned with punishment, at all, however much the adverse outcome of a s. 35 review may convey that impression to the reviewee. The section, itself, makes it clear that the reviewee must be released to a non-custodial supervision order unless to do so would constitute serious endangerment. The section is concerned about public safety, not punishment, just as the original detention was not concerned about punishment - and could not have been, because the person had been found not guilty.
Furthermore, it is the safety of the reviewee which is as much a relevant concern as is the safety of members of the general public.
What s. 35 is concerned about is the relationship of the condition of the reviewee to the issue of safety, as it may be affected by any continuing mental state or condition.
I was referred by counsel for the reviewees to a number of decisions of the courts which relate to the sentencing process and/or which generally were said to illuminate the question of the appropriate standard of proof which should be applied under s 35.
The issue, generally, of serious endangerment also arises in the context of sentencing a person to an indefinite term of imprisonment pursuant to ss. 18A to 18P of the Sentencing Act 1991. However, in my opinion the leading authorities which have discussed the interpretation of those provisions have little direct relevance to the question before me, since the standard of proof in those cases was expressly identified in the legislation: see R v Carr [1996] 1 VR 585; R v Moffatt (1997) 91 A.Crim.R. 557. Section 18B(1) of the Sentencing Act provides that the court may impose such a sentence only if it is satisfied to "a high degree of probability" that the offender "is a serious danger to the community".
More closely analogous to the situation which pertains in s. 35 is the situation where the courts are called upon to implement legislation which provides indefinite detention of a person where that person is declared an habitual criminal with a propensity to commit serious crimes. Additionally, Mr Tehan submitted that the exercise under s. 35 is very similar to the task where the court is called upon by legislation to impose indeterminate sentences upon an offender who is deemed to constitute a serious risk to the public. The exercise of such power in these situations is regarded as one requiring a very high standard of persuasion, he submitted, notwithstanding the fact that serious questions of public safety are involved.
In Chester v R (1988) 165 CLR 611, the High Court considered legislation which provided, in that case, that the court, "if it thinks fit", having regard to various identified considerations which included the mental condition of the offender, might direct the indeterminate detention of an offender who was deemed an habitual criminal. The High Court, at 619, did not consider the question in terms of the competing standards of proof but held that the power should be exercised only in exceptional circumstances and only where the sentencing judge is clearly satisfied, by cogent evidence, that the person is a constant danger to the public.
In R v Fahey (1954) VLR 460, at 462, Smith J, with whom Hudson J agreed, held that, having regard to the serious consequences of such an order, the judicial discretion to declare an offender an habitual criminal pursuant to s. 514 of the Crimes Act 1928, and thus receive an indeterminate sentence, should be exercised only when "it can be predicted with reasonable confidence" that the offender will re-offend when released.
In neither Chester nor Fahey, however, did the court suggest that the question before the court should have been decided by applying the criminal standard of proof.
Mr Tehan submitted that if satisfaction of serious endangerment under s. 35(3) might be attained merely on the balance of probabilities, then that made it more difficult for the person who was said to constitute the danger to avoid an indeterminate detention than would be the case for persons trying to avoid indeterminate sentences and/or declarations as habitual criminals. As Chester and Fahey illustrated, the courts had apparently contemplated a higher standard of persuasion was required than the balance of probabilities (even if the courts had not expressly stated that the standard was proof beyond reasonable doubt). Furthermore, Mr Tehan submitted, the community tolerates the release, after serving their sentences, of persons who almost assuredly will commit further offences. On occasions dangerous persons who have served sentences are released only to once again act violently, and to be returned to prison. There is, therefore, no reason why a lower standard of persuasion should satisfy the court in deciding an outcome of indeterminate detention in Chester and Fahey than would be the case in situations such as those discussed, Mr Tehan submitted.
There are, however, some clear differences between such instances and the situation which pertains under s. 35. In the case of detainees under Governor's Pleasure, with whom I am concerned, they have been confined indefinitely as a result of acts (in the cases before me, the killing of members of the public), which a jury concluded were committed because the detainees’ mental state was such that they were unable to prevent the happening of the acts. By contrast, for even the most hardened and dangerous prisoner who is released after serving a sentence the assumption remains that the person is capable of exercising restraint and that the sentence of imprisonment may have affected a change of attitude to the commission of further crime.
The different considerations between a sentencing exercise and a task such as the courts are set by s. 35 are clearly stated in a decision to which I was referred by Mr Tehan in support of what was his alternative contention, namely, that if the standard of persuasion under s. 35 is not proof beyond reasonable doubt then it is, certainly, a standard much higher than the balance of probabilities.
In Addington v Texas 441 US 418, a decision of the United States Supreme Court, delivered on 30 April 1979, and in which the judgment of the court was delivered by the Chief Justice, Burger CJ., the court rejected the standard of proof as being proof beyond reasonable doubt in a situation not dissimilar to that addressed by s. 35.
The court was considering the standard of proof which should be applied pursuant to the Fourteenth Amendment requirement of due process, in the context of directions given by a judge to a jury on a petition for involuntary commitment of a mentally ill person who was said to be a danger to the public. One issue which the Texas statute required the jury to consider was whether the person required hospitalisation for his own welfare and protection, or that of others.
The court rejected the standard of proof beyond reasonable doubt. The court noted, at 428, that the criminal standard "manifests our concern that the risk of error to the individual must be minimised even at the risk that some who are guilty might go free", a consideration which the court said did not apply where one was concerned with a mentally ill person, because not only was there likely to be greater opportunity for review of an erroneous commitment, the erroneous release of a mentally ill person who should have been committed is not equivalent to erroneously releasing a guilty person, because the mentally ill person, if released, is neither wholly at liberty, nor free of stigma. Furthermore, the factual issues concerning guilt or innocence are capable of some precise determination, whereas the questions concerning mental health and safety involve "a lack of certainty and the fallibility of psychiatric diagnosis".
Burger CJ doubted whether the State could ever prove beyond reasonable doubt that a person was mentally ill and likely to be dangerous. The Chief Justice observed, at 430, that to require that the standard be proof beyond reasonable doubt might result in decisions to reject commitment for many patients desperately in need of institutionalised psychiatric care, and he added that "such 'freedom' for a mentally ill person would be purchased at a high price".

The situation presented by s. 35 is more akin to that addressed in Addington - ie., cases of confinement under Mental Health legislation - than to cases concerned with detention as an habitual criminal. That distinction, which was identified in the judgment of Burger CJ, was also identified by the High Court in Chester, at 618, which required that the judge be "clearly satisfied, by cogent evidence", before an indeterminate sentence could be imposed upon a person as an habitual offender. The requirement that satisfaction be by cogent evidence is consistent with a standard of balance of probabilities, as I will later discuss: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
Had Parliament intended to impose a standard of proof beyond reasonable doubt then it chose not to use those very words, which it had employed elsewhere in the same Act. Given the fact that proof beyond reasonable doubt would be almost impossible to achieve - since the issue is one involving future predictions based on psychiatric and similar evidence concerning the mental state of the reviewee (which evidence must of necessity be uncertain and imprecise) - it would be very surprising if Parliament intended to take such risks with public safety as might thereby be entailed.
The terms of s. 35 necessitate the removal of the status from that of a custodial supervision order unless the judge is satisfied that the safety of the person or others is seriously endangered. I consider that the judge exercising power under s. 35 would be unlikely to reach the degree of satisfaction required by s. 35(3) if the evidence was not "cogent", but such satisfaction might be achieved notwithstanding some deficiencies in that evidence.
The sub-section requires that the satisfaction be achieved "on the evidence available", which would be consistent with a recognition by the Parliament that, especially in areas of prediction with respect to mental illness and behaviour, satisfaction to the standard required for criminal proceedings might never be achievable. Furthermore, s. 38 provides that the court is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit. Provisions such as these lend weight to the conclusion that Parliament intended that the judge having the obligation to make what might be the difficult judgment called for in s. 35 should not be constrained by the obligation to attain a degree of persuasion which was impossible to achieve.
In my opinion, therefore, the standard of satisfaction required by s. 35 is not proof beyond reasonable doubt.
In the event that I concluded that the appropriate standard was not the criminal standard of proof beyond reasonable doubt, then, Mr Tehan submitted, the standard should also not be the civil standard of the balance of probabilities. That standard would be too low, he submitted. It was, however, the civil standard for which counsel for the Attorney General, counsel for the DPP and counsel for the Department of Human Services all contended. Mr Tehan submitted that that standard was inappropriate given the seriousness of the consequences for his client, and other reviewees, which would attend an adverse determination of the relevant issue. That is so, but whilst an adverse decision under s. 35 could have serious consequences for the reviewee it needs to be kept in mind that a decision taken under the section might also have serious consequences for the community, a factor which tends to emphasise why it might be inappropriate to speak of an onus of proof applying to the section.
Mr Tehan sought support for his contention that the standard of proof was higher than proof on the balance of probabilities by reference to the decision of the United States Supreme Court to which I earlier referred. Having rejected the standard of proof beyond reasonable doubt the Chief Justice, Burger CJ, speaking for the court, concluded in Addington v Texas that the issues involved in a decision of commitment were so serious as to require a standard higher than the civil standard, and the court adopted what it described as being a "middle level" standard, which required that there be "clear and convincing" proof. Although the court expressed no disagreement with use by the trial judge of the additional word "unequivocal", it cast doubt as to its appropriateness, noting that it implied a standard approaching, if not exceeding, the criminal standard, a requirement only tolerable in circumstances where the issue being decided was one which was susceptible of objective proof.
In deciding to adopt a standard which was said to be higher than the civil standard Burger CJ observed that the interests at stake in a case where commitment was sought of a person were more substantial than mere loss of money, which constituted the issue primarily involved in civil cases. The litigation of private disputes in civil proceedings did not carry with that litigation a public concern for ensuring the rightness of decisions to the extent attached to criminal proceedings. The deprivation of liberty, even by civil confinement, was, the court held, a significant deprivation of liberty that required due process protection. The stigma associated with a declaration of dangerousness was also noted. The Chief Justice noted, too, that were the standard to be as low as the civil standard then that would increase the number of erroneous decisions for commitment which might arise.
In my opinion, however, application of the "middle level" standard adopted in Addington v Texas, would be little different, in practice, to application of the standard of proof on the balance of probabilities, when that standard is understood to have added to it the gloss introduced by the statements of Dixon J in Briginshaw v Briginshaw, (1938) 60 CLR 336, at 361-362, as I will later discuss.
It must be acknowledged that just as Parliament did not use the words "proof beyond reasonable doubt" in s. 35, equally, Parliament did not use the words "balance of probabilities", although that phrase had also been employed elsewhere in the Act. However, there is good reason why that phrase was used elsewhere in the Act but was not needed to be used in s. 35, even though it may have been intended that a standard of balance of probabilities should be applied in s.35, rather than a criminal standard.
The phrase "balance of probabilities" is employed in the Act in s. 21, a section which relates to a jury verdict on an issue. The possible confusion for a jury in understanding the civil standard of proof, when couched in terms other than "preponderance/balance of probabilities" was discussed in Sodeman v R (1936) 55 CLR 192. By stating in s. 21 that the level of persuasion to be met by a jury is the standard of balance of probabilities the Parliament was recognising, in my opinion, that a well established body of authority and experience would guide a trial judge in directing the jury as to the meaning of that standard. On the other hand, where elsewhere in the Act the phrase "satisfied on the evidence available" is employed, the decision maker is not a jury, but is either a judicial officer or some specialist statutory body or an identified, and specialist, office holder. Thus, the subtleties and more complex understandings of the nature of persuasion, which is to be undertaken, may be embraced by the word "satisfied", and be understood to apply, and be adopted where appropriate.
As I stated earlier, it may be inappropriate to speak of there being any onus of proof placed on any person by s. 35. By s. 35(1) the court is set the task of conducting a major review without there being any application required by any party. The situation of a major review is therefore to be contrasted with the situation, by s. 31, where any of the persons named in the section, including the person subject to a custodial supervision order, may seek to have that status varied or revoked. Arguably, there is an onus placed on the applicant in that situation. But under s. 35, it is the judge who is set the task of inquiry; there is no general issue joined between any parties, although a right of appearance is given to the State or the Director of Public Prosecutions or to any other person with a substantial interest in the matter, and by s. 37(2) all such persons are declared to be "parties" in the matter.
Just as it may be an arid exercise to explore whether s. 35 imposes an onus of proof it is tempting to say that there is no need to identify any particular standard of proof to be applied under s. 35 - given that the application of the section is not the equivalent of "proceedings", either civil or criminal between parties, and given the deliberate choice of words in the section, and the failure to use the words of either the criminal or civil standard. However, it seems to me that issues are required to be resolved which have potentially serious consequences both for the public and for the detainees. In those circumstances the court should identify the nature of the task which it has set for itself in order to be persuaded. Additionally, I agree with the submissions made to me by counsel who were given leave to appear for parties under s.37(1), that there are only two standards of persuasion known to the common law, and the court should identify which standard it is applying.
In Sodeman v R, supra, at 216, Dixon J held that the common law recognised only two "standards of persuasion", the criminal and civil standard. However, Dixon J noted that questions of fact vary greatly in nature and in some cases greater care in scrutinising the evidence is appropriate than in others, and greater clearness of proof may be sought. There was no third standard of proof. Evatt J agreed, at 228, and agreed, too, that use of phrases such as "clearly proved" did not constitute a third standard, merely a recognition of the relative seriousness of the question which was being determined.
The approach of Dixon J in Sodeman was confirmed in Briginshaw v Briginshaw (1938) 60 CLR 336, where in a celebrated passage, at 361-362, Dixon J held:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 171, the High Court adopted the approach of Dixon J in Briginshaw and confirmed that a third standard of proof was not known to the common law, but that the strength of evidence required to establish a proposition might vary according to the nature of what was sought to be proved, and the gravity of the consequences which would flow. In the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ, at 170- 171, their Honours held:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
Their Honours cited portion of the passage which I have set out, above, from the judgement of Dixon J, and then continued:
“There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.”
The degree of satisfaction required for the operation of s. 35, is, therefore, persuasion on the balance of probabilities, but the gloss applied in Briginshaw will have effect here. Such an approach was adopted by Hudson J in Hobart v Medical Board of Victoria [1966] VR 292, at 296, when considering legislation that required the Medical Board to be "satisfied" before finding a person guilty of infamous conduct. His Honour held that the use of that word had been taken in very many cases to require a Briginshaw approach, so that having regard to the gravity of the question "it is only after the exercise of caution and after making a close scrutiny of the evidence that the degree of satisfaction required can be reached". A similar approach, when dealing with the same word in a statute relating to extradition, was adopted by Walters J in MacDonald v Attorney General [1980[ SASR 294, at 308- 309.
Walters J held that notwithstanding the fact that the judicial exercise with respect to an application for extradition involved questions of the detention and restriction of personal liberty, the standard of proof beyond reasonable doubt was inappropriate, because the matter before the court did not involve proving guilt of an offence, for which the presumption of innocence would come into play. He held that the word "satisfied" when applied to the court's task related "not to a degree of proof, but to a state of mind of the Special Magistrate; that he must be 'satisfied' which in my opinion comes to the same thing as 'convinced'".
Whilst I generally adopt the words used by Walters J, I have some reservations about his Honour's use of the word "convinced", which, with respect, seems to me to have connotations akin to proof beyond reasonable doubt. Once the standard of the balance of probabilities is understood to embrace the gloss of Briginshaw, then it seem to be that no better word than "satisfied" needed to have been employed.
In Attorney General v David (1992) 2 VR 46, Hedigan J was set the task of predicting dangerousness by virtue of the Community Protection Act 1990, which expressly provided that the court had to be "satisfied on the balance of probabilities" that there was a serious risk to the safety of the public, and that it was likely that the person concerned would commit an act of violence if released. Although the issue was not disputed by the parties, Hedigan J held, at 85, that the seriousness of the issues meant that in applying the standard of the balance of probabilities the "gloss" of the statements of Dixon J in Briginshaw should also be applied.
In a decision as to an application under ss. 31 and 37 of the Act where the court was, again, required to be “satisfied” as to serious endangerment, Hedigan J applied the same standard of persuasion as he had applied in Attorney-General v David (see matter No. 1478 of 1998, In the Matter of an Application for a Non- Custodial Supervision Order, decision of Hedigan J, unreported, 15 September 1998). In a decision relating to an application for extended leave under s. 57 of the Act, Gillard J held that the standard of proof as to serious endangerment was “a high degree of satisfaction” (unreported decision, 9 September 1998, name of applicant suppressed).
It was submitted on behalf of the reviewees that if the balance of probabilities standard was applied then unless there was a better than 50% chance of harm befalling the public or the reviewee if the custodial order was reduced to a non- custodial order by virtue of s. 35, then the court could not have attained the level of satisfaction necessary to prevent the reduction in status under that section. I do not accept that argument.
In considering whether the court is satisfied as to the relevant matters in s. 35, the judge is having regard not only to past known events but also to the possibilities of future events. The court is concerned with the evaluation of risk and of consequences in the event that the risk eventuated. Whilst accepting that the overall issue - namely, whether a non-custodial order will seriously endanger the reviewee or the public - is to be determined on the balance of probabilities, that does not mean that any component, such as the question of risk of a future event happening, which is taken into account when determining that broader issue, must also be resolved on the balance of probabilities before being taken into account.
In my opinion, a conclusion that there is a less than 50% chance of violent behaviour if the reviewee is released might, in some cases, support a conclusion that the judge is satisfied that the safety of the public would be "seriously endangered". The risk of serious harm being done, were the anticipated danger to eventuate, may constitute a release to be a serious endangerment, on the balance of probabilities, even though the risk of the event happening was less than a 50% chance. Similarly, a very high risk of a relatively minor act occurring (for example, indecent exposure) might not constitute serious endangerment of the public.
Risk can probably never be eliminated in such situations, but the task of the court is to evaluate the degree of risk against the harm which would result if the event occurred: see the discussion in O'Shea v R (1997) 94 A.Crim.R. 560, at 564, per Doyle CJ.
The courts have recognised, in other circumstances, that an assessment of future events might lead to a conclusion as to the happening of those events even though the probability of the happening of the events is less than 50%. That approach was adopted by the High Court in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, at 642-643, and was held by the court to be equally applicable to cases other than those concerning the assessment of damages for personal injuries in civil cases: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, at 350; see, too, R v Storey, supra, at 376, note 64, per Callaway JA.
In Fernandez v Government of Singapore [1971] 1 WLR 987, the House of Lords was concerned with extradition legislation which required the court to decline to return a person to a Commonwealth country "if it appears" to the court that he might be the subject of unjust treatment. Speaking for the court, Lord Diplock held at 993-994, that it tended to cause confusion to say that the test was on the balance of probabilities. His Lordship continued:
"It is a convenient and trite phrase to indicate the degree of certitude which the evidence must have induced in the mind of the court as to the existence of facts , so as to enable the court to treat them as data capable of giving rise to legal consequences. But the phrase is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future. There is no general rule in English law that when a court is required, either by statute or at common law, to take account of what may happen in the future and to base legal consequences on the likelihood of its happening, it must ignore any possibility of something happening merely because the odds of its happening are fractionally less than evens."

The Court of Appeal has recently reserved its decision in a case which raises the question whether a predication of future events in the sentencing process might allow the court to take into account such a fact even if its likely occurrence was established to a standard less than the balance of probabilities (Pickard v R, coram Winneke P, Charles and Callaway JJA). Whatever the Court of Appeal may conclude in that case as to the application of Malec v Hutton Pty Ltd to the sentencing process, the task under s. 35 is, for the reason I have given, a different one and would, in my view, permit application of the principles discussed in Malec v Hutton Pty Ltd.
It is clear that Parliament wanted the assessment of dangerousness where it arises under s. 35 in a major review to be made by a judge, not by psychiatrists, however much the judge may rely on expert opinions in informing himself or herself. In my view, it would be most unlikely that Parliament intended that where a significant chance of serious violence to members of the public was perceived by a judge, but was assessed to involve less than a 50-50 chance of its occurrence, such a conclusion would not be capable of constituting satisfaction that the public would thereby be "seriously endangered", should the reviewee be released.
The requirement that the judge be satisfied of serious endangerment is to be determined "on the evidence available". In using that phrase Parliament is recognising that since none of the persons subject to major review will have been on a custodial supervision order for less than 25 years, the evidence available for considering the question of dangerousness may be difficult to obtain, not only because information may have been lost over time. but also because the determination of issues such as dangerousness may be difficult.
The difficulties of making predication as to the likelihood of violent conduct are well recognised (see Bugmy v R (1990) 169 CLR 525, at 537; R v Carr [1996] 1 VR 585, at 592 see too O'Shea v R (1997), supra, at 564, per Doyle CJ), and such difficulties lend emphasis to the need for care in the application of the standard of balance of probabilities, as discussed in Briginshaw. Psychiatrists will inevitably qualify their evidence, for example, by stressing the uncertainties of prediction of danger, especially where a person has had no opportunity to be placed into a situation where the potential for danger might have been proved by actual violence, or, apparently, disproved.
The principles which must be taken into account by the judge are set out in s. 35, s. 39 and s. 40, all of which emphasise the myriad factors which are components in the process of assessing whether the judge is satisfied as to the ultimate question posed by s. 35(3). Given the nature of the task, and its potential complexity, Parliament has used words which enable the judge to approach the task by applying the standard of balance of probabilities, with the gloss of Briginshaw, which must necessarily have application.
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[1998] VSC 70

18 September 1998