R v Draoui - [2015] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRAOUI
[2015] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Bampton)
17 April 2015
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Appeal against refusal by a District Court Judge on application to revoke a supervision order under Part 8A of the Criminal Law Consolidation Act 1935 (SA).
The appellant was charged with 83 counts of false pretences, fraudulent misappropriation, forging and uttering cheques and fraud allegedly committed between April 2000 and May 2002.
The appellant subsequently suffered a Major Depressive Disorder rendering him mentally unfit to stand trial. The Judge found the objective elements of the charged offences were established and the appellant was mentally unfit to stand trial and declared him liable to supervision under Part 8A. The Judge made a supervision order and fixed a limiting term of 10 years. The Judge released the appellant on licence on conditions including that he undergo psychiatric monitoring and treatment as required and that he be under the supervision of a Community Corrections Officer.
The appellant applied for revocation of the supervision order on the ground, inter alia, that he had recovered from the Major Depressive Disorder that had rendered him unfit to stand trial. The Judge refused the application but relaxed the conditions of the supervision order.
The appellant appeals against the refusal to revoke the supervision order.
Held Blue J (Kelly and Bampton JJ agreeing):
1. On an application to revoke a supervision order, the paramount consideration is community safety (Advertiser Newspapers Ltd v V & Anor [2000] SASC 366 applied) (at [109]).
2.       On an application to revoke a supervision order, it will often be appropriate for the Judge to adopt a semi-inquisitorial approach (at [113]).
3.       On an application to revoke a supervision order, a Judge is not precluded from having regard to the conduct the subject of the charges or the applicant’s attitude to it in assessing the risk to the community of a repetition of that conduct merely because the applicant has not been convicted or found guilty of those charges (at [118]-[124]).
4.       The appellant was not denied procedural fairness in relation to the Judge’s declining to make three specific findings he was invited by the appellant to make. However, the appellant was denied procedure fairness in relation to the Judge’s overall assessment of the risk of repetition of his conduct the subject of the charges (at [134]-[142]).
5.       The Judge did not apply a test that a supervision order should not be revoked if there is any risk whatsoever to the community. However, the Judge did not provide adequate reasons articulating the risk to the community that he assessed (at [149]-[150]).
5.       The Judge was not obliged to revoke the supervision order merely because the appellant had not since 2002 engaged in repetition of the conduct the subject of the charges, although that factor was to be taken into account in the overall assessment of risk to the community (at [153]).
6.       Appeal allowed. Refusal to revoke the supervision order set aside. Matter remitted to the District Court for further hearing and determination (at [156]-[159]).
Consolidation (Mental Impairment) Amendment Act 1995 (SA) Part 8A; Criminal Law Consolidation Act 1935 (SA) ss 184(1), 195(1), 214M A (1)(b), 269M A (3)(a), 269M B (2), 269K(1), 269K(2), 269J, 269O, 269O(1)(b)(ii), 269O(2), 269P(1), 269R(1), 269(T)(2)(a), 269T(2)(b), 269T(2)(c), 269T(2)(d) ; Criminal Law Consolidation (Detention of Insane Offenders) Amendment Act 1992 (SA) s 293a; Criminal Law (Sentencing) Act 1988 (SA) ss 23(5), 23A(3), 24(1b), 33A(7); Criminal Lunatics Act 1800 (Eng) 39 & 40 Geo III c 94, s 2; Summary Offences Act 1953 (SA) s 38, referred to.
Advertiser Newspapers Ltd v V & Anor [2000] SASC 366, applied.
Briginshaw v Briginshaw (1938) 60 CLR 336; Channel Nine SA Pty Ltd & Anor v Police & Anor (No 2) [2014] SASCFC 119; Laxton v Justice (1985) 38 SASR 376; R v Dyson (1831) 173 ER 135; R v Phanos [2014] SASCFC 26; R v Pritchard (1836) 7 Car & P 303; R v T [1999] SASC 429; R v Tzeegankoff (Unreported, Supreme Court of South Australia, Bleby J, 28 April 1998, Judgment No. S6639; Wittwer v Police [2004] SASC 226, discussed.
Eastman v The Queen [2000] HCA 29, (2000) 203 CLR 1; House v The King (1936) 55 CLR 499; R v Abdulla [2005] SASC 399; (2005) 93 SASR 208; R v Draoui [2008] SASC 188; R v Hadfield (1880) 27 State Trials 1281; R v Judge Martin; Ex parte Attorney-General [1973] VR 339; R v M'Naghten (1843) 10 Cl & F 200 (8 ER 718); R v Ngatayi (1980) 147 CLR 1; R v Presser [1958] VR 45; R v Stevens [2010] SASCFC 1; R v T [1999] SASC 429; (1999) 75 SASR 235, considered.

R v DRAOUI
[2015] SASCFC 50
Full Court: Kelly, Blue and Bampton JJ

KELLY J. I agree with Blue J.
BLUE J.                This in an appeal[1] against a decision by a Judge in the District Court refusing an application to revoke a supervision order under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act).[2]
[1]    Permission to appeal having been granted by a single Judge of this Court.
[2]    Criminal Law Consolidation Act 1935 (SA) s 269P.
In November 2006 and March 2007, the Judge found the appellant, Abdou Khalil Nassar Draoui, mentally unfit to stand trial,[3] found that the objective elements of 83 offences with which the appellant was charged were established[4] and declared the appellant liable to supervision under Part 8A of the Act.[5]
[3]    Criminal Law Consolidation Act 1935 (SA) s 269M A (3)(a).
[4]    Criminal Law Consolidation Act 1935 (SA) s 269M B (2).
[5]    Criminal Law Consolidation Act 1935 (SA) s 269O.
In September 2007, the Judge made a supervision order releasing the appellant on licence on specified conditions[6] and fixed a limiting term of 10 years commencing on 27 September 2007.[7]
[6] Criminal Law Consolidation Act 1935 (SA) s 269O(1)(b)(ii).
[7] Criminal Law Consolidation Act 1935 (SA) s 269O(2).
On 14 July 2014, the Judge refused an application by the appellant to revoke the supervision order.[8] The Judge relaxed the licence conditions.
[8] The Judge had announced his decision on 8 May 2014 and published reasons for that decision on 10 June 2014: [2014] SADC 103.
The appellant appeals against the refusal of his application to revoke the supervision order on four consolidated grounds:
1.The Judge erred in his approach to his consideration of the appellant’s lack of insight and remorse and the relevance of the conduct in respect of which the limiting period was set in circumstances where there had not been a guilty verdict and the offending the subject of the charges before the court had not been proved.[9]
2.The Judge erred in relying upon the absence of evidence to reject the appellant’s submissions in relation to matters that were the subject of the three expert reports obtained pursuant to section 269T, the Parole Board report and other materials, where the Director did not take issue with the presentation of that material and the Judge did not give notice that such material would not be accepted in the absence of evidence..[10]
3.The Judge erred in failing to apply the correct tests in relation to the issue of whether the appellant posed a risk to the community.[11]
4.The Judge erred in failing to apply the criteria under sections 269S and 269T(1).[12]
[9] Grounds 2.10 and 2.11 in the Grounds of Appeal and generic grounds 1 and 3. The appeal was argued on the basis of the four consolidated grounds set out in the appellant's summary of argument, rather than by reference to the more specific grounds set out in the Grounds of Appeal.
[10] Grounds 2.1 to 2.6 in the Grounds of Appeal and generic grounds 1 and 3.
[11] Grounds 2.12 and 2.13 in the Grounds of Appeal and generic grounds 1 and 3.
[12] Grounds 2.8 and 2.9 in the Grounds of Appeal and generic grounds 1 and 3.
The appeal raises for consideration the appropriate approach on an application for revocation of a supervision order when a defendant does not suffer mental impairment resulting in mental incompetence to commit the offences allegedly committed, suffers a transitory supervening mental impairment resulting in mental unfitness to stand trial resulting in the making of a supervision order and recovers from that transitory mental impairment during the limiting term.
History of the proceedings
In July 2002, the appellant was charged on information in the Magistrates Court with false pretences,[13] fraudulent misappropriation,[14] forging and uttering cheques[15] and fraud other than false pretences.[16] The offences were alleged to have been committed between September 2000 and May 2002. The appellant was remanded on bail from time to time until 27 September 2007 when the supervision order was made.
[13] Criminal Law Consolidation Act 1935 (SA) s 195(1).
[14] Criminal Law Consolidation Act 1935 (SA) s 184(1).
[15] Criminal Law Consolidation Act 1935 (SA) s 214.
[16] Summary Offences Act 1953 (SA) s 38.
Between March and May 2003, the appellant was committed for trial, arraigned on a fresh information in the District Court (the first information) and the matter was listed for trial in April 2004. The first information contained 82 counts charging 67 counts of false pretences,[17] five counts of fraudulent misappropriation (one of which was later withdrawn),[18] four counts of forging and five counts of uttering forged cheques[19] and one count of fraud other than false pretences.[20]
[17] Criminal Law Consolidation Act 1935 (SA) s 195(1).
[18] Criminal Law Consolidation Act 1935 (SA) s 184(1).
[19] Criminal Law Consolidation Act 1935 (SA) s 214.
[20] Summary Offences Act 1953 (SA) s 38.
In November 2003, the appellant (together with his wife Sharron) was charged on information (the second information) in the Magistrates Court with two counts of false pretences.[21] The offences were alleged to have been committed between April and July 2000.
[21] Criminal Law Consolidation Act 1935 (SA) s 195(1)(a).
In April 2004, at the commencement of the trial of the first information, a question was raised by the appellant’s lawyers for the first time whether the appellant was mentally fit to stand trial. The trial was adjourned and a psychiatric report from Dr Chris Branson and psychological reports from Mr Mark Reid and Mr Jack White were ordered by the Judge by way of preliminary prognosis.[22] The trial was then relisted for April 2005.[23]
[22] Criminal Law Consolidation Act 1935 (SA) s 269K(1).
[23] Criminal Law Consolidation Act 1935 (SA) s 269K(2).
In April 2005, at the commencement of the trial, the Judge on application by the appellant ordered an investigation into his mental fitness to stand trial.[24] Ultimately, the question of the appellant’s mental fitness to stand trial was listed for trial as a preliminary issue on 20 November 2006 and reports from his treating psychiatrist Dr Marcus Bem and from Dr Branson and Mr Reid were ordered.[25] For convenience, although Mr Reid is a psychologist and not a medical doctor, I refer to Dr Bem, Dr Branson and Mr Reid collectively as “the doctors”.
[24] Criminal Law Consolidation Act 1935 (SA) s 269J.
[25] Criminal Law Consolidation Act 1935 (SA) s 269M A (1)(b).
On 18 November 2006, on the direction of the Judge, the second information was removed into the District Court to be dealt with in conjunction with the first information. One count from the first information was withdrawn.
On 20 November 2006, on the trial of the appellant’s mental fitness to stand trial, the Judge recorded a finding that it had been established on the balance of probabilities that the appellant was mentally unfit to stand trial.[26]
[26] Criminal Law Consolidation Act 1935 (SA) s 269M A (3).
On 15 March 2007, the Judge found that the objective elements of 83 offences with which the appellant was charged were established.[27] The Judge declared the appellant liable to supervision under Part 8A of the Act.[28]
[27] Criminal Law Consolidation Act 1935 (SA) s 269M B (2).
[28] Criminal Law Consolidation Act 1935 (SA) s 269O.
On 27 September 2007, the Judge made a supervision order releasing the appellant on licence on specified conditions.[29] The conditions included that he be under the care and supervision of the Forensic Mental Health Services, undergo regular psychiatric review and treatment and be under the supervision of a Community Corrections Officer. The Judge fixed a limiting term of 10 years commencing on 27 September 2007.[30] The appellant’s appeal to this Court against those orders was dismissed (save for the deletion of three ancillary conditions)[31] and the High Court subsequently refused special leave to appeal.[32]
[29] Criminal Law Consolidation Act 1935 (SA) s 269O(1)(b)(ii).
[30] Criminal Law Consolidation Act 1935 (SA) s 269O(2).
[31] R v Draoui [2008] SASC 188; 101 SASR 267. 9 July 2008.
[32] 1 May 2009.
In November 2008, the appellant filed an application to revoke the supervision order. In November 2009, he withdrew the application.
In June 2010, the appellant filed a fresh application to revoke the supervision order. The hearing of that application was delayed due to an application by the appellant that the Judge disqualify himself on the ground of apprehended bias, subsequent judicial review proceedings by the appellant and subsequent applications for permission to appeal refused by this Court in March 2011 and special leave to appeal refused by the High Court in October 2011.
In December 2011, the Judge directed examinations and reports by the appellant’s treating psychiatrist Dr Bem and by Dr Branson and Mr Reid who provided reports in February and April 2012.
In January 2012, the appellant filed a statement of grounds on which the application was made.
In September 2012, the appellant sought and received supplementary reports from Dr Bem, Dr Branson and Mr Reid.
On 30 April 2013, the Judge heard the application. No oral evidence was adduced. The parties made submissions based principally on the medical reports.
On 24 March 2014, the appellant applied and was granted permission to reopen the hearing to tender an affidavit by his solicitor exhibiting a letter from the appellant’s son saying that he had developed a health condition adversely affecting his education agency business and was seeking assistance from his father travelling overseas for that business, together with ancillary medical reports.
On 8 May 2014, the Judge announced his decision refusing to revoke the supervision order and on 10 June 2014 delivered reasons for judgment for that refusal.[33]
[33] [2014] SADC 103.
On 30 June 2014, the Judge heard submissions on varying the licence conditions.
On 14 July 2014, the Judge made an order refusing to revoke the supervision and relaxing the licence conditions.
Objective elements of the offences
The objective elements of the 83 offences found by the Judge to have been proved beyond reasonable doubt may be summarised as follows.
The appellant was in receipt of Commonwealth unemployment benefits from September 1998 to August 2001 and had no other regular source of income. Between April and July 2000, he completed an application for credit to the National Australia Bank falsely representing his assets and income. Those false details induced the bank to endorse two cheques totalling $203,000 which caused a loss to the Bank of $103,000.[34]
[34] All dollar figures are rounded to the nearest $1,000 except where it otherwise appears.
In September 2000, the appellant entered into a hire purchase agreement with a finance company for the purchase of a Land Rover falsely representing that he was capable of meeting the required monthly repayments.
The appellant registered a company and opened accounts with two banks and a credit union on behalf of the company. In each case, he deposited a cheque and drew funds against it before it was dishonoured.
Between February and May 2001, the appellant obtained advances from a businessman induced by a false representation that the appellant had funds in the bank in London, the advances totalling $50,000.
Between February and May 2001, the appellant fraudulently converted to his own use three cheques given to him for a different purpose.
In March 2001, the appellant forged and uttered two cheques.
The appellant was a customer of a fruiterer at North Adelaide. The fruiterer advanced $21,000 to him by cashing cheques that were subsequently dishonoured and advancing loans when the appellant was unable to repay them.
In May 2001, the appellant commenced a wholesale nut business “Absolutely Nuts”. He obtained nuts on credit from an Adelaide nut wholesaler. He supplied the nuts to the North Adelaide fruiterer for prices below cost in payment of his debt and then in return for payment of money. The appellant had no other customer and no other supplier and was unable to pay the nut supplier for the stock supplied. By the end of August 2001, the appellant owed over $68,000 to the nut supplier.
In July and August 2001, the appellant entered into an agreement with the nut supplier to buy his business for $300,000 and falsely represented that he would pay the purchase price from the proceeds of selling a house he owned in the Middle East for $US300,000. Induced by this misrepresentation, the nut supplier filled further orders.
In September 2001, the appellant applied for a credit card facility by falsely representing that he had not previously held a credit card with that financier when his previous credit card had been cancelled due to credit infringements.
In September 2001, the appellant forged a cheque and twice uttered it. In October 2001, he drew two cheques in payment for electrical work and labels which were dishonoured.
On 11 October 2001, the appellant drew a cheque payable to the nut supplier for $16,000 as part payment of the total debt that had reached nearly $100,000. The cheque was dishonoured.
Subsequently, the appellant drew two cheques in payment for automotive electrical work and accountancy work which were dishonoured.
The total amount obtained by the appellant as a result of this conduct was approximately $500,000 and total losses suffered as a result of the conduct were approximately $300,000.
Material on the revocation application
The appellant filed a statement of grounds of the application which, as amplified by written submissions, identified three related grounds upon which the appellant sought revocation of the supervision order.
1.The appellant had sufficiently recovered his mental health and did not require any ongoing psychiatric supervision.
2.There was no real or practical risk of the appellant carrying out any conduct akin to the offences charged; he did not have any lifestyle, behavioural or any other conduct indicators of risk; he was unlikely to obtain employment and thereby pose a risk to any potential employer and therefore did not pose any risk to the community, his only prospects for employment being to work with his family in Dubai and the Middle East.
3.The appellant’s treating psychiatrist Dr Bem supported the application.
Dr Bem first saw the appellant in September 2004 and has been his treating psychiatrist since then. He provided reports to the appellant’s solicitor in October 2004, April 2005, February 2006, May 2006, July 2006 and September 2012. He provided reports to the Court in April 2007, January 2009 and February 2012. He provided annual reports pursuant to section 269Q(2) of the Act in May 2009, May 2010, June 2011 and May 2013.[35]
[35] Presumably he also provided an annual report in about May 2012, but it was not among the materials before the Judge.

Dr Bem in his initial report expressed his diagnosis by way of agreeing with Dr Branson’s findings, ie the appellant had narcissistic personality traits and it was likely that his cognitive dysfunction and distress were somewhat exaggerated but nevertheless he was currently suffering from a Major Depressive Disorder with possibly some psychotic features, a Chronic Pain Disorder secondary to the effects of a motor vehicle accident in 2001 and mild Post Traumatic Stress Disorder secondary to a stabbing incident in 1998. Dr Bem said that the appellant told him that he had been stabbed in the buttocks by a mentally unstable colleague in 1998. Dr Bem suggested that the appellant’s symptoms of depression might partly be the result of the fraud charges he was facing. He said that the appellant provided only a sketchy overview of the fraud charges, denying any wrongdoing on his part. He expressed the opinion that the appellant was unfit to stand trial and would be for the next three to six months.
In his reports between April 2005 and April 2007, Dr Bem described psychotic symptoms narrated to him by the appellant in the nature of what Dr Bem characterised as paranoid delusions and hallucinations. He expressed the opinion that the appellant qualified for diagnosis as either Major Depressive Disorder with Psychotic Features or Schizoaffective Disorder. He expressed the opinion that the appellant continued to be mentally unfit to stand trial. In his April 2007 report, Dr Bem said that the appellant reported that he first became depressed over 20 years ago as a result of losing various family members during the Israeli-Palestinian conflict.
Dr Branson first saw the appellant in June 2004 for a court ordered psychiatric assessment. He provided reports to the Court in June 2004, February 2005, July 2006, November 2006, August 2007, March 2009 and April 2012. He provided a report to the appellant’s solicitor in September 2012.
In his first report in June 2004, Dr Branson said that the appellant reported that he had been stabbed by a mentally ill acquaintance in 1998, which still caused nightmares and a fear that the offender would come back to harm him. Dr Branson said that the appellant reported that he had suffered a motor vehicle accident in 2001 while working in a one-man business as a wholesaler of nuts and dried fruit and that injuries to his back, neck and leg caused him to close the business. He said that the appellant related most of his depressive symptoms to a motor vehicle accident in 2001. He said that the appellant reported that he had an episode of depression about 20 years ago when his parents lost their home in Hebron due to Israeli actions. He reported heavy alcohol and tobacco usage. The appellant told him that he was not guilty of the fraud charges.
Dr Branson said in his initial report that it was clear that the appellant had suffered psychiatric injury as a result of the stabbing incident in 1998 and as a result of the motor vehicle accident in 2001, with the latter being the most significant with regard to his current presentation. The existence of the criminal charges was contributing to his current depressed state. Dr Branson expressed the opinion that the appellant had narcissistic personality traits and it was likely that his cognitive dysfunction and distress were somewhat exaggerated but nevertheless he was currently suffering from a Major Depressive Disorder with possibly some psychotic features, a Chronic Pain Disorder secondary to the effects of the motor vehicle accident in 2001 and mild Post Traumatic Stress Disorder secondary to the stabbing incident in 1998. Dr Branson believed that some of the appellant’s symptoms were exaggerated, expressed the opinion that on the balance of probabilities the appellant was not fit to stand trial but he was reasonably optimistic that further treatment would result in his being fit to stand trial within the next 12 months.
In his reports between February 2005 and August 2007, Dr Branson said that the appellant reported hallucinations and what Dr Branson characterised as paranoid delusions. In general terms, Dr Branson continued to express the opinion that the appellant was exaggerating his symptoms but nevertheless diagnosed him as suffering from Major Depressive Disorder with Mood Congruent Psychotic Features. Dr Branson expressed surprise and disappointment given the antidepressant and antipsychotic medication the appellant had been prescribed by Dr Bem. Dr Branson expressed the opinion that the appellant remained mentally unfit to stand trial, although there was a prospect of improvement about which Dr Branson became progressively less optimistic over time.
Mr Reid first saw the appellant in May 2004 for a court ordered psychological report. He provided reports to the Court in May 2004, January 2005, August 2006, August 2007 and February 2012. He provided a report to the appellant’s solicitor in September 2012.
In his initial report in May 2004, Mr Reid reported that he took a background history from the appellant concerning his family and employment history. The appellant reported an employment history that culminated in his having a fruit and nut shop in 2000, which continued until he was involved in a motor vehicle accident in December 2001. The appellant reported that as a result of the accident he suffered back, neck and leg injuries and was not hospitalised but had been on sickness benefits since the accident. The appellant reported that he had been stabbed in both legs in April 1998 by a person suffering a psychiatric illness and that he had himself suffered a Post Traumatic Stress Disorder in 1998 as a result. The appellant also reported suffering for a year or two from depression twenty years before the interview with Dr Branson due to the war situation in his home country.
In his initial report, Mr Reid said that the appellant gave unusual answers and performed extremely poorly in tests administered, which raised questions in Mr Reid’s mind about the genuineness of his responding. He therefore administered the Test of Malingered Memory, in which the appellant scored 32 percent in circumstances in which a score of less than 90 percent suggests suspicion of deliberate exaggeration. Mr Reid expressed the opinion that there was a very substantial possibility of malingering and it was very difficult to explain the appellant’s extremely poor results on the Test of Malingered Memory in any other way. Nevertheless, Mr Reid expressed the opinion that the appellant was likely to qualify for diagnosis of Major Depressive Disorder with Mild To Moderate Psychotic Features and his very poor performance in the tests was due to this along with exaggeration or fabrication of symptoms. Mr Reid said that he had no neuropsychological evidence to support a lack of fitness to stand trial. This was something that would need to be pursued with a psychiatrist.
In his January 2005 report, Mr Reid said that the appellant reported hallucinations and what Mr Reid characterised as delusions. The appellant performed more poorly in tests than was indicated by his performance during the interview and scored only 34 percent in the Test of Malingered Memory. Mr Reid expressed the same opinion that the appellant suffered from Major Depressive Disorder with Associated Psychotic Features and that he also exaggerated his symptoms. Mr Reid believed that on the balance of probabilities the appellant was not fit to stand trial.
In his August 2006 report, Mr Reid said that the appellant presented in a similar manner to previous assessments despite the passage of time. The appellant described a range of what appeared to be paranoid persecutory delusions and performed so poorly on a neuropsychological test that Mr Reid abandoned any further testing. Mr Reid expressed the same overall opinion as previously.
In his August 2007 report, Mr Reid said that the appellant was more animated since he last saw him in August 2006. The appellant still reported hallucinations and paranoid delusions. There was a moderate level of short-term memory impairment. The appellant could not attempt more complex cognitive tasks. Mr Reid expressed the same overall opinion about the appellant’s diagnosis together with ongoing doubts about possible exaggeration of symptoms.
Dr Bem provided a report in January 2009 in relation to the appellant’s application for revocation of his supervision order. He said that the appellant had shown quite remarkable gains to his mental state over the past 12 to 16 months. He said that the appellant had reported that his symptoms of depression and psychosis began to improve in August 2007; that he had reduced and then stopped using alcohol and tobacco; and that he no longer had any hallucinations, paranoia or other symptoms of psychosis or of depression. He said that the appellant reported that he wished to work overseas resurrecting his career in journalism in Egypt. Dr Bem expressed his own observations that the appellant had displayed little or no evidence of depression, anxiety or psychosis since January 2008. Dr Bem said that the appellant should remain on antidepressant and antipsychotic medications for an indefinite period, given the chronic and relapsing nature of his illness. Dr Bem expressed the opinion that it was in the appellant’s best interest that he no longer be under the restrictions of the supervision order. Dr Bem’s subsequent reports were essentially the same, except he later reported that the appellant ceased the antipsychotic medication in October 2010.
Dr Bem’s most recent report was provided in September 2012 to the appellant’s solicitor. Dr Bem responded to a reported concern by the Director of Public Prosecutions that the appellant would not continue to receive treatment for depression were he not subject to licence conditions. Dr Bem said that the appellant was aware that he needed to remain on his antidepressant medication indefinitely and continue to attend on him for his quarterly reviews. Dr Bem expressed the opinion that the appellant would remain compliant with his treatment if his supervision order were revoked. Dr Bem responded to a reported concern by the Director that the community would be at risk if the appellant were not under ongoing supervision given that he had shown little insight into his past offending and little victim empathy. Dr Bem said that, if the appellant remained as mentally stable as he had been over the past two to three years, he did not consider him to be at risk of repeat offending, at least not in the context of his psychiatric issues. He said that the issues of diminished insight into his offending and apparent lack of victim empathy were irrelevant from his perspective as the appellant’s treating psychiatrist.
Dr Branson provided a report in March 2009 in relation to the appellant’s application for revocation of his supervision order. Dr Branson reported that the appellant presented in a dramatically different way from all previous consultations. He presented as a normal, articulate, intelligent man. He said that the appellant reported that he had started to improve in about August 2007 (which was the last time Dr Branson had seen him). The appellant reported that he had no problems with paranoid feelings or hallucinations and had stopped smoking and reduced drinking alcohol. The appellant reported that the catalyst for the change was a telephone call from his sister in the Middle East encouraging him to get on with his life and take control of his health. The appellant reported that he felt the supervision order was no longer necessary and it would prevent his resuming employment in Arabic language journalism in the Middle East or undertaking a Master’s Degree in Journalism at a university in Cairo. The appellant reported that there was unlikely to be any employment available in Arabic language publications in Australia.
Dr Branson said that the appellant’s improvement was nothing short of dramatically positive and he no longer suffered from a Major Depressive Disorder with Mood Congruent Psychotic Features. He said that the appellant said that he was upset about the trial of the objective elements of the offences and considered his lawyer had not done enough to explain his situation. Dr Branson said that the question of the genuineness of the appellant’s illness and subsequent recovery had to be considered because it was always apparent that there was an amount of exaggeration of his symptoms when unwell and because his improvement commenced just around the time of the finding of unfitness to plead. Nevertheless, he considered that the diagnoses had been correct and that the appellant had substantially recovered. Dr Branson said that there was always a risk of relapse and the appellant required continued contact with his psychiatrist for the foreseeable future and this should remain a condition of the supervision order but the other conditions were no longer required.
Dr Branson’s subsequent reports were essentially the same, except he later reported that the appellant had ceased the antipsychotic medication. In his April 2012 report, Dr Branson said that the appellant reported that at the age of 63 it was highly unlikely he would achieve paid employment in the open employment market. In his report to the appellant’s solicitor of September 2012, Dr Branson expressed the opinion that the appellant would require antidepressant medication in the long term, which could be left to the good judgment of his psychiatrist and general practitioner. He said that the assessments of the appellant as part of the legal process at all times had to do with his fitness to stand trial rather than his mental competence to commit the offences. He said he was not aware of any information that would suggest that the alleged offending took place when the appellant was suffering from severe Major Depressive Disorder and it seemed inherently unlikely that this would be the case.
Mr Reid provided a report in February 2012 in relation to the appellant’s application for revocation of his supervision order. Mr Reid said that the appellant reported that in 2008 he received a telephone call from his sister in Palestine who encouraged him to get better for his family’s sake, and that he gave up cigarettes and alcohol as a result. The appellant reported no relevant symptoms. The appellant said that he currently had the opportunity to work with his son, who hoped to open an office in Saudi Arabia to expand his education agency business or to work as a public relations consultant to an import/export food company. The appellant reported that he would have to live in the Middle East but that he would return to Adelaide every six months or more frequently if required. The appellant exhibited no notable deficit on tests administered by Mr Reid. Mr Reid described a very dramatic and profound improvement in the appellant since he last saw him in July 2007. Mr Reid said that he had no reason to object to the supervision order being revoked, but believed it remained extremely important that the appellant continue to be monitored by his psychiatrist.
In his September 2012 report to the appellant’s solicitor, Mr Reid said that, if the appellant had been completely compliant with his treatment at the hands of his treating psychiatrist, he saw no need for ongoing monitoring under the conditions of a licence. Mr Reid expressed the opinion that, if the appellant’s psychiatric condition remained as when he last saw him in February 2012, he would not constitute a greater risk of repeating the earlier conduct than any other person of good mental health within the community. If the appellant did reoffend, this would not be a factor of his mental health but would be ordinary criminal behaviour. Mr Reid noted the comment by the Director that the appellant had apparently shown little insight into his offending and no victim empathy and responded that this was a matter that needed to be addressed and considered by the Court rather than being an issue for Mr Reid.
In May 2012, the Court was provided with a Victim Report[36] by a forensic social worker who interviewed the Adelaide nut wholesaler and another person who lost money as a result of the appellant’s conduct. Each opposed the revocation application and expressed concerns regarding community safety.
[36] As required by the Criminal Law Consolidation Act 1935 (SA) ss 269R(1) and 269T(2)(c).
In June 2012, the Presiding Member of the Parole Board of South Australia provided a report to the Court. She said that the appellant had reported regularly as required to his Community Corrections Officer throughout his period of supervision. She said that permission for the appellant to travel overseas in July 2009 had been refused by the Parole Board and that, if granted permission to travel overseas whilst on licence, the Parole Board would be unable to supervise him and would have no ability to carry out its statutory responsibility of supervision.
It appears that in fact the appellant was granted permission to travel to the Middle East in 2011 and was subsequently granted permission to travel to the Middle East twice in 2014.
Letters by the appellant’s wife and children concerning a proposal for the appellant to work for his son and travel to the Arab states were also provided to the Judge.
The reasons of the Judge
The Judge set out the procedural history of the matter, summarised his findings concerning the objective elements of the offences charged and summarised the medical reports.
The Judge observed that the appellant did not give evidence or call his wife or son to give evidence on the application. The Judge said:
It is clear that the applicant would have considered that the risk of his reoffending in a way akin to the offences with which he was charged in the years 2000 to 2002 was a relevant consideration for me in decided his application. It was also submitted on his behalf that he is “a person who is unlikely to obtain employment” in South Australia, even in Australia. It was also part of his case that he could not obtain employment otherwise than with family overseas. Yet there was no direct evidence before me as to any of these matters.
The applicant’s risk of “reoffending” was said to be relevant to his application and the fact that that was related to any empathy he had ever displayed to those who suffered by his conduct in the years 2000 to 2002 was expressly made relevant by the DPP. I consider that the applicant accepted that to be relevant by asking at one time that the hearing be adjourned so that three expert medical witnesses could be asked to comment upon or express their views on that matter.
It seems to me that evidence from the applicant on a number of issues might have assisted me in determining this application. They include:
(i)      What attempts he has made since the Supervision Order to obtain employment in South Australia, or indeed, interstate.
(ii)     Whether any of those attempts have been unsuccessful and why they were unsuccessful.
(iii)    If those attempts were successful, what work and what sort of work has he done since the Supervision Order.
(iv)    Direct evidence from him as to whether or not he has been law-abiding in all respects since the Supervision Order.
(v)     What, if any, bank accounts he has operated since the Supervision Order was made and any he operates now.
(vi)    Evidence from any Community Corrections Officer or officers as to his compliance with the conditions of his Supervision Order since it was made.
(vii)   What he has thought, and what he now thinks, about those who suffered as a result of his conduct over the years from 2000 to 2002.
(viii)   Whether or not he is sorry for what he caused a number of people to suffer.
In what I have just set out I am referring to direct evidence from the applicant, not indirect evidence from him that can only be gleaned or inferred from the documentary material before me.
Not only did I not hear from the applicant but the applicant did not call any witness in support of his application. He wife might have been thought to be an obvious one. His son Omar was one as he could have told me about the work his father could do for him in the Middle East, whether that work would require his father to work within the business or wider community in South Australia, when his father would be required to work in the Middle East and when in South Australia, and the proportion of time his father would be required to work in each of the Middle East and in South Australia. The indirect evidence I have varies as to those proportions.
In the event I do not have direct evidence of the matters to which I have just referred.
I must decide the applicant’s application on the material before me, much of which, even the majority of which, is based upon information and assertions given to those who produced that material.[37]
[37] [2014] SADC 103 at [148]-[154].

The Judge accepted that the appellant had sufficiently recovered his mental health and did not require any psychiatric supervision. The Judge said:
I am satisfied and find that the applicant has made out that ground. I am satisfied and find that the applicant now enjoys good mental health, with the qualification that he should continue taking his medication and that he should continue to be reviewed by his general practitioner as to his mental health. I find that the applicant does not now require any ongoing psychiatric supervision.[38]
[38] [2014] SADC 103 at [157].
The Judge found that there was no link between the conduct the subject of the charges and the appellant’s subsequently diagnosed mental illness which rendered him mentally unfit to stand trial (Major Depressive Disorder With Psychotic Features). The Judge said:
I am satisfied and find, on the basis of Dr Branson’s opinion and my own view on the history of the matter, that there was no link between the alleged conduct which was said to constitute the applicant’s offending and his subsequently diagnosed mental illness which rendered him unfit to stand trial. It was not suggested at any time until two years after the last conduct which constituted the offending that the applicant might be unfit to stand trial. It has never been suggested that he was not mentally competent to have committed the offending. Indeed, the circumstances of the conduct in respect of which I found the objective elements established beyond reasonable doubt, indicated they were the actions of a mentally competent and highly intelligent and resourceful man.[39]
[39] [2014] SADC 103 at [174].
The Judge referred to a submission by the appellant that it was highly unlikely that he would achieve employment in the open market. The Judge was not prepared to make that finding and considered that it was of doubtful relevance in any event because the defendant’s conduct the subject of the charges in 2000 and 2001 was engaged in while on unemployment benefits. The Judge said:
I am not prepared to and cannot find that it is highly unlikely that the applicant would achieve employment in the open market. Although page 2 of Dr Branson’s report of 24 April 2012 is cited in support of that asserted fact, what Dr Branson actually wrote on page 2 was: “However (the applicant) said that at the age of 63 years, it was highly unlikely that he would achieve paid employment on the open employment market”. So that was not Dr Branson’s view, it was the applicant’s. The applicant gave no evidence before me in support of that view. The relevance of that, even if true, is at best problematic, as Mrs Shaw QC acknowledged on 30 April 2013, pages 8-9, and is at worst against the applicant’s application as he was on unemployment benefits when he performed the acts in the years 2000 to 2002 for which he was charged.[40]
[40] [2014] SADC 103 at [175].
The Judge considered that the approach to the assessment of risk to the community differed when considering a person who has recovered from a mental impairment as a result of which the person was declared mentally incompetent to commit an offence (under sections 269F or 269G) compared to a person who was mentally competent to commit an offence but subsequently became mentally unfit to stand trial (under sections 269M or 269N) and has recovered from that mental impairment. The Judge said:
I consider that the matters I may consider relevant and important where a person was declared mentally incompetent to commit an offence who then recovers are, or may be, different to the matters I may consider relevant and important where a person was found to be mentally unfit to stand trial who then recovers. I consider that to be the case even acknowledging that in the first case there is a not guilty “verdict” if the objective elements are found proved, whereas in the second case there is no finding of not guilty or guilty if the objective elements are established and found to be so. I do not consider that the distinction between a finding of not guilty in the former and no finding either of not guilty or guilty in the latter is of any moment when considering the application before me in the context of my consideration of the applicant’s likelihood of again committing the same conduct as he did in 2000 to 2002.
I can understand that a person who has committed an offence but been found to be mentally incompetent to commit it by virtue of mental impairment might more readily be considered less likely to commit the same offending if he recovers from the mental impairment that caused him to offend in the first place. It is less obvious to me that the same could or should apply where a person is placed on a supervision order as a result of being found unfit to stand trial as a result of a mental impairment which did not exist at the time he committed the conduct leading to his being charged with criminal offences, where that person recovers from the mental impairment that played no part in that conduct.
In the latter case, which is this case, I consider that I must examine very carefully the question whether or not the applicant is likely to conduct himself in the way that he did between 2000 and 2002 which conduct undoubtedly caused many members of the community significant and lasting harm, anguish and detriment, including financial detriment.[41]
[41] [2014] SADC 103 at [189]-[191].
The Judge considered the risk of the appellant engaging in similar conduct to that engaged in between 2000 and 2002 which formed the subject of the charges. The Judge said:
It is asserted in support of the applicant’s application to revoke his Supervision Order that he does not pose a risk or threat to the community, that there “is not any real or practical risk of him carrying out any conduct akin to the offences charged”, and that he “does not have any lifestyle, behavioural or other conduct indicators of risk”.
I agree that the risk to the community of the applicant “carrying out any conduct akin to the offences charged” is relevant and important in my determination of this application. I must consider this matter when considering the application generally and, in particular, when I apply the principle that restrictions on the applicant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community (s 269S of the Act).
It is also my view that the question whether or not the applicant had or has any insight into his conduct and whether or not he had or has any empathy for the victims of it are relevant and important to a consideration of his risk of re-offending and, therefore, whether the Supervision Order should be revoked in its entirety.[42]
[42] [2014] SADC 103 at [178]-[180].
The Judge concluded that there was a significant risk to the community of the appellant engaging in conduct similar to that engaged in between 2000 and 2002. The Judge said:
[T]he applicant has, since recovering from his mental illness at some time between 2008 and now, been the same person he was in the years 2000 to 2002. That is, his mental capacities and all his other faculties have returned such that he is now as he was when the conduct the subject of the offences was performed by him.
There were many times when this matter came before me over the years that I gained a distinct impression that the applicant and his advisers were presenting this application on the following basis. The charges against the applicant that arose out of his conduct during the years 2000 to 2002 did not go to trial in the normal way because he was found unfit to stand trial. He was so found on the basis of psychiatric evidence. The psychiatric evidence now is (and it is from the same psychiatrists as relied upon for the unfitness to stand trial finding) that he has fully recovered from the mental impairment that rendered him unfit to stand trial. The applicant has not been found guilty or been convicted of any criminal offence. The Supervision Order should, therefore, be revoked.
It was submitted that “the commission of the objective facts ... is not to be treated as if (the applicant) is guilty of the offence”. It was submitted that the critical issues are that the applicant has no finding of guilt against him, he is on a Supervision Order as a result of his unfitness to stand trial, and if the matters that led to the Supervision Order have now been addressed then the basis on which he was on a Supervision Order, being the foundation of the order, no longer exists, and therefore the order should be revoked.
…
…I must examine very carefully the question whether or not the applicant is likely to conduct himself in the way that he did between 2000 and 2002 which conduct undoubtedly caused many members of the community significant and lasting harm, anguish and detriment, including financial detriment.
The applicant also submitted that he presents as a person who is unlikely to obtain employment and therefore he would not pose any risk to an employer or to the community. His only prospects are to work with family overseas in the Middle East.
That submission seems to be suggesting that because the applicant can’t get employment in South Australia, or Australia, he therefore does not pose any risk to the community of South Australia. Therefore, I should revoke his Supervision Order so that he can travel freely overseas and obtain work in the Middle East with his son. Putting aside the fact that the applicant was on unemployment benefits in 2000 to 2002, this raises the question: what about the risk to the community in the Middle East? It also raises the question as to whether he does pose a risk to the community here because the material that is before me suggests that he will be conducting part of his work for his son, perhaps up to the majority of it, in South Australia. He will also be working with young people from the Middle East who wish to come and do come to South Australia for study and work.
Exposing the community in countries overseas is not something that was countenanced by Gray J in R v Fox, decided on 9 December 2011. I acknowledge that Fox was a different case to this because Fox was found mentally incompetent to have committed an offence of attempted murder and he was subject to a detention order under Part 8A of the Act. ... Gray J said this [61]:
In my view, allowing Mr Fox to be released on licence and for deportation to then occur, would, without any degree of control, place the community in this State and in the United States at risk. His release would not be consistent with the safety of the community.
I agree with what Gray J there said.
My conclusion is that the applicant has not established that he is a person who poses no risk to the community here, or anywhere. I am satisfied and find that he presents now as the same man that he was in the years 2000 to 2002, and there is no evidence or material before me to indicate that the applicant has any insight into what he did in the years 2000 to 2002 or that he has any empathy for those who suffered thereby.
I acknowledge that when a court fixes a limiting term the court is not imposing a penalty and that the purpose of a supervision order is not to penalise. The purpose of a supervision order is both to protect the public and to secure to the person concerned such supervision and treatment as is available and appropriate.
In this case I do not consider that psychiatric supervision and supervision as to psychiatric treatment is any longer appropriate for the applicant. I am convinced, however, that the other conditions to which the applicant is subject, including supervision as to them, are not only appropriate but necessary to protect the public. I consider that they are the minimum restrictions on the applicant’s freedom and personal autonomy that are consistent with the safety of the community. I consider that the word “safety” in s269S of the Act and the word “endanger” in s269T of the Act must be construed by me broadly to encompass conduct such as that which led the applicant to be charged, where such conduct causes, or is likely to cause, significant harm, anguish and loss.[43]
[43] [2014] SADC 103 at [183]-[185] and [191]-[198]. (Citations omitted)
The contentions on appeal
The appellant contends that, in assessing the risk that the appellant would in future engage in conduct similar to that engaged in between 2000 and 2002, the Judge took into account an irrelevant factor, namely the Judge wrongly had regard to his finding that the appellant did not have insight into his conduct or empathy for the victims. This was an irrelevant factor because it was premised on the appellant being guilty of the charged offences, which is contrary to the scheme of the legislation that provides only for a finding on the objective elements of the offences and leaves the appellant with a presumption of innocence of the offences charged. This factor was irrelevant to the question the Judge had to decide. In the alternative, the Judge gave undue weight to his finding in this regard.
The appellant contends that the Judge erred in not accepting second hand evidence by the doctors of what they were told by him in the absence of evidence from the appellant himself about relevant matters. This relates particularly to statements by one or more of the doctors that the appellant told them that he would have great difficulty finding employment in Australia, he had been compliant with the conditions of the supervision order and he would continue to consult his psychiatrist.
The appellant contends that he was denied procedural fairness because the Director did not challenge the relevant statements in the medical reports and the Judge did not draw to his attention the possibility that the Judge may not accept those statements. The appellant also makes a more general complaint of denial of procedural fairness.
The appellant contends that the Judge applied the wrong test on the issue whether he posed a risk to the community by inquiring whether he posed no risk to the community.
The appellant contends that, on the materials before the Judge, the Judge ought inevitably to have found that the risk of repetition of such conduct was minimal and was outweighed by the principle that restrictions on the appellant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The appellant contends that the Judge failed to apply the approach and criteria mandated by sections 269S and 269T of the Act.
The respondent contends that the Judge was entitled and obliged by sections 269S and 269T(1)(b) to have regard to and assess the risk that the appellant would in future engage in conduct similar to that engaged in between 2000 and 2002. In so doing, the Judge was entitled to have regard to the objective conduct engaged in by the appellant between 2000 and 2002 and the appellant’s lack of insight in relation thereto or empathy for the victims. Formation of a view concerning risk necessarily depends on an understanding of the past conduct and factors relevant to the risk of repetition of that conduct.
The respondent contends that the appellant was only entitled to seek findings based on evidence and in the circumstances the Judge had no obligation to inform the appellant that submissions unsupported by evidence would not be accepted. In any event, the fact that the appellant’s submissions were not supported by evidence was only treated by the Judge as going to weight.
The respondent contends that the fact that the appellant had not engaged in similar conduct since 2002 was of limited weight given that he had been on bail and then subject to a supervision order over that period. In any event, it did not negate the risk of repetition of the earlier conduct.
The respondent contends that the statement by the Judge that the appellant had not established that he was a person who posed no risk to the community was not a statement of the ultimate test applied by the Judge but merely a reference to a rejection by the Judge of a factual submission advanced by the appellant that there was no real practical risk of repetition of the earlier conduct.
The approach on appeal
Section 269Y(2) of the Act provides:
An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence.
and section 352(1)(a)(iii) confers a right of appeal against sentence with the permission of this Court.
Both parties have proceeded on the basis that the reference in section 269Y(2) to a “supervision order” includes a decision not to revoke a supervision order and I proceed on that assumption.
The making of a decision whether or not to revoke or vary a supervision order involves the exercise of a broad discretion, albeit one constrained by sections 269S and 269T(1). On an appeal against the exercise of that discretion, the question for the appellate court is not how it would have exercised the discretion but whether the appellant has demonstrated a process error (irrelevant consideration, failure to take into account a mandatory relevant consideration, wrong principle or factual mistake) or outcome error (unreasonable or plainly unjust outcome).[44]
[44] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
The appeal is analogous to an appeal under section 42 of the Magistrates Court Act 1991 (SA),[45] being in the nature of a rehearing and neither an appeal stricto senso nor an appeal de novo.[46]
[45] R v Stevens [2010] SASCFC 1; (2010) 107 SASR 456 at [19] per Sulan J (with whom Nyland and Layton JJ agreed).
[46] R v Stevens (2010) 107 SASR 456 at [20] per Sulan J (with whom Nyland and Layton JJ agreed). See as to s 42 of the Magistrates Court Act 1991 (SA) on sentence appeals: Laxton v Justice (1985) 38 SASR 376 at 378 per Olsson J; Wittwer v Police [2004] SASC 226 at [16]-[18] per White J.
Fitness to stand trial at common law
Before turning to the provisions of Part 8A of the Act, it is instructive to consider the position at common law before Part 8A was introduced in 1995.[47]
[47] R v Abdulla [2005] SASC 399; (2005) 93 SASR 208 at [5] and [20] per Duggan J, [43] per Debelle J and [73] per Besanko J.
At common law, it was settled in the mediaeval period that madness, if it existed when the crime was committed, negatived liability.[48] Upon being found mad by the jury, such madness resulted in a verdict of not guilty.[49] The Judge had a discretion to discharge the defendant or commit the defendant to prison (subject to pardon by the King).[50]
[48] Quoted from WS Holdsworth, A History of English Law (Methuen & Co Ltd, 1925) volume 8, page 439. See also volume 3, page 372.
[49] R v Hadfield (1800) 27 State Trials 1281 at 1356.
[50] R v Hadfield (1800) 27 State Trials 1281 at 1356; R v Judge Martin; Ex parte Attorney-General [1973] VR 339 at 354 per Little J.
At common law, it was also settled in the mediaeval period that, if a person of sound mind commits a crime and becomes mad before his arraignment, he cannot be arraigned.[51] Such a person was remitted to prison until the incapacity was removed.[52]
[51] Quoted from WS Holdsworth, above n 48, volume 8, page 439; volume 3, page 372. See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at [399] per Callinan J.
[52] Hale’s History of the Pleas of the Crown (1800) volume 1 page 34; R v Dyson (1831) 173 ER 135, (1831) 7 Car & P 305 at 306-307 per Parke J.
The Criminal Lunatics Act 1800 (39 & 40 Geo III c 94) (Eng) made slight modifications to the common law position. Section 1 provided that a person found not guilty by reason of insanity was to be ordered by the court to be kept in strict custody in such place and in such manner as the court deemed fit until the King’s pleasure be known, whereupon such person was then to be under the control of the King.
Section 2 of the Criminal Lunatics Act 1800 provided that, if upon arraignment a person be found by a jury to be insane, that person could not be tried and the court was empowered to order the person to be kept in strict custody in such place and in such manner as the court deemed fit until the King’s pleasure be known, whereupon such person was to be under the control of the King. After 1800, as before, persons found by the jury to be mentally unfit to stand trial were tried if and when they regained their sanity.[53]
[53] R v Judge Martin; Ex parte Attorney-General [1973] VR 339 at 344-345 per Smith ACJ.

For the reasons given above, the exercise of the discretion by the Judge miscarried. The Judge’s order refusing to revoke the supervision order should be set aside.
Because the hearing did not proceed in a manner summarised at [137]-[142] above, it is not possible for this Court on the materials before the Court on appeal to exercise itself the discretion under section 269P whether to revoke the supervision order. It would not be expedient or in the interests of justice in all the circumstances for this Court itself to conduct the requisite inquiry so as to be in a position to exercise the discretion to determine whether the supervision order should be revoked.
The matter should be remitted to the District Court for further hearing and determination. Given the views that have now been formed by the Judge and expressed in his reasons, it is appropriate that the matter be heard and determined by another Judge.
I would allow the appeal. I would set aside the Judge’s refusal to revoke the supervision order. I would remit the matter to the District Court for further hearing and determination.
BAMPTON J: I agree with the reasons of Blue J and the orders he proposes.