R v England - [2004] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ENGLAND
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
26 August 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE
Appeal against declaration that defendant incapable of controlling sexual instincts and direction that defendant be detained in custody until further order - whether Judge erred in law in making a declaration and direction pursuant to s 23(5) of the Criminal Law (Sentencing) Act 1988 - whether Judge erred in holding that the requirements of s 23(5) had been satisfied - whether s 23(5) requires each medical practitioner to express the opinion that defendant is incapable of controlling sexual instincts - whether s 23(5) requires that each medical report independently of the other supports conclusion that defendant incapable of controlling sexual instincts - whether s 23 is invalid as inconsistent with the exercise of judicial power - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) Part 2 Div 3, s 18A, s 23, s 23(2), s 23(3), s 23(4)(a), s 23(5); Criminal Law (Sentencing) Act 1988 (SA) s 24, s 24(6), s 27, s 27A, s 32(5)(c); Correctional Services Act 1982 (SA) s 75(1); Commonwealth of Australia Constitution Act Ch III, s 71; Judiciary Act 1903 (Cth) s 78B; Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii); Criminal Law Consolidation Act 1935 - 1975 (SA) s 77, s 77a, s 319; Mental Health Act 1993 (SA); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), referred to.
Chu Kheng Lim v Minister of Immigration (1992) 176 CLR 1; Kruger v Commonwalth (1997) 190 CLR 1, distinguished.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; R v O'Shea (1982) 31 SASR 129; R v England (2004) 87 SASR 411; R v Granger [2004] SASC 156; Nicholas v The Queen (1998) 193 CLR 173, discussed.
R v England (2003) 86 SASR 273; Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547; Silbert v Director of Public Prosecutions (WA) [2004] HCA 9; R v Moffatt [1998] 2 VR 229; Veen v The Queen [No 2] (1988) 164 CLR 465; Chester v The Queen (1988) 165 CLR 611; Attorney-General (Qld) v Fardon [2003] QCA 416; Hamdi v Rumsfeld 72 USLW 4607; Al-Kateb v Godwin (unreported) [2004] HCA 37; R (Anderson) v Home Secretary [2003] 1 AC 837; Gilbertson v South Australia (1976) 15 SASR 66, considered.

R v ENGLAND
[2004] SASC 254
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ Mr England has appealed against an order declaring him to be incapable of controlling his sexual instincts and directing that he be detained in custody until further order.
Proceedings so far
Mr England was convicted after a trial before a jury in the District Court on two counts of indecent assault, four counts of rape and five counts of burglary or break enter and larceny. The offences occurred in November and December 1998.
The offences of indecent assault and rape are offences to which s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) applies. Accordingly, the convictions attracted the operation of the provisions of Division 3 of Part 2 of the Act, giving the Court power to direct his detention until further order if he was declared to be incapable of controlling his sexual instincts.
The District Court Judge remanded Mr England in custody to appear for sentence before the Supreme Court, exercising the power conferred by s 23(2) of the Act.
A Judge of this Court then sentenced Mr England to a single sentence of imprisonment for 23 years, exercising the power to impose a single sentence under s 18A of the Act. The offences in question were committed while Mr England was on parole. That meant that he had to serve as well the unexpired balance of the sentence in respect of which he was on parole: s 75(1) of the Correctional Services Act 1982 (SA). He was liable to serve a total of 23 years 11 months seven days. The Judge declined to fix a non-parole period, exercising the power conferred by s 32(5)(c) of the Act. Counsel for Mr England had asked the Judge not to fix a non-parole period at that stage.
The Judge declared that Mr England was incapable of controlling his sexual instincts. He directed that he be detained in custody until further order.
Mr England has not appealed against the sentence of imprisonment. His appeal (with leave) is against the declaration and order.
Mr Tilmouth QC, counsel for Mr England, argued two matters on appeal. First, that in the circumstances the Judge erred in finding that a basis for making the declaration and giving the direction was established. Second, that s 23(5) of the Act and associated provisions were invalid. Mr Tilmouth argued that the imposing of the sentence of imprisonment meant that “the sentencing function was spent”. The direction for detention until further order “infringed the limits of the exercise of judicial power” because s 23(5) of the Act (set out below) required the court to fix an additional penalty. By requiring the court to impose a second punishment, it created the impression that the judiciary had become an arm of government. As the argument developed, it appeared to be that the provisions in s 23 were invalid because they confer on the Supreme Court a function or power inconsistent with a requirement of apparent and actual independence from the executive government, in particular a function or power inconsistent with the requirement that the Supreme Court not be required to act in a manner so inconsistent with accepted notions of judicial process as to apparently make it an instrument of executive government policy. This was said to be incompatible with the Supreme Court exercising the judicial power of the Commonwealth under Chapter III of the Constitution, and so to be in conflict with the Constitution leading to invalidity. The submission is based on the decision of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
Background matters
Mr England has a criminal record that includes an offence of robbery with violence in 1992, and two offences of rape and one of indecent assault in 1992. He was sentenced to imprisonment for those offences, and was released on parole in April 1998. The latest offences were committed in late 1998, about six months after his release on parole.
The earlier and later offences present a pattern of conduct of a disturbing kind. The two rape offences in 1992 involved Mr England breaking into the victim’s home in the early hours of the morning while the victim was asleep in bed, waking her and then raping her, discouraging her from resisting by saying he had a knife. The same type of conduct was involved in the 1998 offences. In each case the offence was committed late at night or in the early hours of the morning, Mr England entering the home of the victim while the victim was asleep. In each case the victim was awoken and either subjected to an indecent assault or a rape. On some occasions Mr England took some property. On one occasion he said he had a gun, on another occasion he said he had a knife and on another occasion he said he had a person with him who had a gun. Not surprisingly the victims have suffered severely as a result of their experiences. These circumstances explain the heavy sentence imposed by the Judge.
Notice was given to the Attorneys-General, as required by s 78B of the Judiciary Act 1903 (Cth), of the argument based on Kable. Only the Attorney-General for South Australia intervened, and he did so to put submissions in support of the validity of the legislation.
As appears from the provisions set out below, s 23(5) of the Act conditions the power to make a declaration on two medical practitioners reporting on oath “that the defendant is incapable of controlling his or her sexual instincts” after conducting “an independent personal examination of the defendant” as required by s 23(4)(a).
The Judge ordered an enquiry and report by two medical practitioners under s 23(3). The medical practitioners specified were Dr Raeside and Dr Nambiar. Mr England refused to be interviewed by either of them. In The Queen v England [2003] SASC 321; (2003) 86 SASR 273 a differently constituted Full Court held that each doctor had conducted an independent personal examination as required by the Act. Before us Mr Tilmouth challenged the correctness of that decision, but accepted that he was bound by it in these proceedings.
The Director of Public Prosecutions did not contest Mr Tilmouth’s submission that the declaration and direction were a sentence for the purposes of s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA), and able to be challenged on appeal accordingly. The Court proceeded on that basis in The Queen v O’Shea (1982) 31 SASR 129 when considering earlier but similar legislation. In light of that, I am content to proceed on the same basis.
Mr Tilmouth’s submissions did not involve any attack on the opinions expressed by the medical practitioners although, as will appear, he argued that the opinion expressed by Dr Nambiar was not an opinion of the kind required by the Act. The issue was whether, in light of the material before the Judge, taking it more or less at face value, there was a basis for the making of the order.
The legislation
I set out below the provisions of s 23 that are relevant to the issues arising on appeal. They are as follows:
“(2)        Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
(3)        The Supreme Court may, in relation to –
(a)a defendant convicted of an offence to which this section applies by the Court; or
(b)a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
(4)         For the purposes of an inquiry under subsection (3), each medical practitioner -
(a)must carry out an independent personal examination of the defendant; and
(b)may have access to any evidence before the court by which the defendant was convicted; and
(c)may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)If –
(a)each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b)the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order.
(6)        The Supreme Court may exercise its powers under subsection (5) in addition to, or instead of, imposing a sentence of imprisonment for the offence.
(7)        If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8)        A person detained in custody under this section will be detained –
(a)if the defendant is under 18 years of age – in such institution (not being a prison) as the Minister for Family and Community Services from time to time directs;
(b)in any other case – in such institution as the Minister for Correctional Services from time to time directs.
(9)        The progress and circumstances of a person subject to an order under this section (whether in custody or not) must be reviewed at least once in each period of six months by –
(a)in the case of a person detained in, or released on licence from, a training centre – the Training Centre Review Board;
(b)in any other case – the Parole Board.
(10)      The results of a review under subsection (9) must be embodied in a written report, a copy of which must be furnished to the person the subject of the report and –
(a)in the case of a report of the Training Centre Review Board – to the Minister for Family and Community Services;
(b)in the case of a report of the Parole Board – to the Minister for Correctional Services.
(11)      Subject to this Act, a person will not be released from detention under this section until the Supreme Court, on application by the Director of Public Prosecutions or the person, discharges the order for detention.
(12)      The Supreme Court may not discharge an order for detention under this section unless –
(a)it has first obtained and considered the report of at least two legally qualified medical practitioners each of whom has independently examined the person; and
(b)having taken into account both the interests of the person and of the community, it is of the opinion that the order for detention be discharged.”
Section 24 provides for the release on licence of a detained person.
The medical practitioners’ reports and the Judge’s finding
Dr Raeside read a substantial amount of material relating to Mr England’s earlier offences, and to the recent offences, and earlier reports by a psychologist, Mr Balfour, (in 1997) and by a psychiatrist (in 1994). He provided a written report in which he said:
“However, in my opinion, I believe that Mr England is unable to control his sexual conduct. This may change with the advantage of formal rehabilitation efforts, but these have not occurred and so consequently he remains unable to control his conduct at present. I therefore believe that he satisfies the criteria under Section 23 of the Criminal Law (Sentencing) Act.”
In his sworn evidence to the Court he adhered to that opinion, and expanded on it. The Judge said that he found Dr Raeside’s evidence convincing: R v England [2004] SASC 20; (2004) 87 SASR 411 at [91].
Dr Nambiar’s written report was rather tentative. Two paragraphs sufficiently indicate that. He said:
“I find myself constrained and limited by the fact that I did not have the opportunity to interview Mr England personally and therefore find it difficult to form an opinion with any certainty in view of the grave consequences of any such opinion.
I can only speculate on the basis of the information that I have before me that if Mr England were to be released tomorrow I would predict that he would pose a great risk to the community with the probability of sexual offending once again extremely high. I am unable with any certainty to determine whether Mr England is capable of controlling his sexual impulses, however, on the face, of it the magnitude of the evidence available would suggest that he is clearly not capable of controlling his impulses.”
By the time he gave evidence he had read additional material, including a detailed psychological report by Mr Balfour that had also been read by Dr Raeside, but not previously read by Dr Nambiar. In his evidence he said that Mr England was incapable of controlling his sexual instincts. The Judge said at [28]:
“Notwithstanding the reservations expressed in his report, Dr Nambiar expressed the firm opinion in his oral evidence that the defendant was incapable of controlling his sexual instincts and did so without the reservations which had been expressed in his report. Not surprisingly, given the reservations expressed in the report, the basis of Dr Nambiar’s opinion was attacked by Mr Boylan QC, counsel for the defendant. Nevertheless, Dr Nambiar was not persuaded to qualify the opinion he expressed in oral evidence.”
Not surprisingly, as he said, counsel for Mr England attacked this opinion. The Judge indicated some reservations about Dr Nambiar’s explanations for his change of opinion. He concluded at [80]-[81]:
“Dr Nambiar’s final opinion was based on the filling of the substantial information gap by the report of Mr Balfour, the increasing frequency of the sexual attacks, the apparently planned events and the defendant’s apparent lack of awareness that he was stepping beyond the issue of consent. In relation to the latter point he explained that whilst realising that in fact the victims were not consenting, the defendant failed to understand the significance of that, that conclusion being based not on some intellectual impairment but on the nature of the offending. What he regarded as important was the pattern and continuance of the defendant fulfilling his urges in a way that was inappropriate.
To the extent that Dr Nambiar’s tentative opinion was strengthened by the additional information with which he was provided, there is some justification for accepting his opinion. Nevertheless, there are unsatisfactory features of his evidence to which I have referred which still cast some doubt on the strength of his conclusion and the weight that can be given to it.”
The Judge considered all of the material before him. He concluded at [92]:
“Deprivation of liberty in the manner contemplated by s 23 of the Act is a very serious matter. A declaration and a direction under sub-section (5) cannot be made and given lightly. If made, the period of detention is indeterminate. In this case, there is cogent and acceptable evidence in the form of Dr Raeside’s opinion which causes me to be satisfied in the sense previously discussed that the defendant is incapable of controlling his sexual impulses. While I have some reservations about the opinion expressed by Dr Nambiar, and while I may have hesitated to be so satisfied if Dr Nambiar’s evidence were the only evidence before me, his evidence does not detract from that of Dr Raeside, and indeed provides some support for it.”
He then considered whether the declaration should be made and whether the direction should be given. It suffices to set out the following part of his reasons at [96]:
“However, I do not consider that the likely length of sentence is a reason for not making the declaration and giving the direction. I consider that it would be in the interest of the defendant and for the protection of the public that they should be made and given. It will ensure that the defendant can only be released after proper judicial inquiry. The detention required by such a direction can only take effect at the “expiration of the term of imprisonment … that the person is liable to serve”: s 23(7). If, by access to treatment during his imprisonment or for any other reason circumstances have changed at the time when the period of detention takes effect, there are means in the Act whereby the order may be discharged or release on licence may be permitted. It does not follow that the period of detention so directed will necessarily extend any period of incarceration. On the other hand, it may do. That will depend on circumstances prevailing at the time and which cannot presently be foreseen.”
The Judge then made the declaration and gave the direction authorised by s 23(5).
Did the Judge err?

Mr Tilmouth argued that the statutory conditions for the existence of the power to make the declaration were not made out.
He argued that s 23(5) means that a declaration cannot be made unless each medical practitioner has expressed the required opinion on oath and each opinion, standing alone, is a sufficient basis for the Court finding that the defendant is incapable of controlling his sexual instincts. In other words, not only was it necessary for each doctor to express the required opinion, but each opinion considered independently had to be one that was a sufficient basis for the conclusion that the defendant was incapable of controlling his sexual instincts. It was not permissible for the Judge to conclude, as happened here, that he would not have been satisfied of the relevant matters had he relied on the opinion of Dr Nambiar alone, but was so satisfied taking the two opinions together.
I reject that submission.
The provision is clear. Each practitioner must report on oath that the defendant is incapable of controlling his sexual instincts. The requirement is not purely one of form. It is not sufficient for the medical practitioner to mouth those words. The judge must be satisfied, having heard the evidence, that the medical practitioner is of the relevant opinion. For example, if the medical practitioner were to resile from the opinion under cross examination, the basis for the making of an order would have gone. Sometimes it may be difficult to decide if the medical practitioner has adhered to the required opinion. But here, each medical practitioner expressed the required opinion and adhered to it. That is all that is required for the purposes of s 23(5)(a).
There is nothing in the section to suggest that each opinion considered in isolation must be sufficiently persuasive to support a finding of incapacity. Such an approach to a finding of fact would be most unusual. For all sorts of reasons one witness might express a firmer or more convincing opinion than the other. Usually findings of fact are made on all of the relevant material, having regard to its combined force. As long as the threshold requirement of two opinions as to incapacity is met, there is no reason why the judge should not be left to assess the evidence as a whole, paying due regard to any weaknesses in the evidence of either witness, and then to decide whether or not the judge is satisfied that the defendant is incapable of controlling his sexual instincts.
That is what the Judge did. The fact that Dr Nambiar’s opinion, standing alone, would not have been sufficient for the Judge to be satisfied that Mr England was incapable of controlling his sexual instincts is of no particular significance.
Mr Tilmouth also argued that the Judge had ignored the distinction between deciding that he was satisfied that Mr England was incapable, and the separate requirement to consider whether the declaration should be made and the direction given. I agree that under s 23(5) these are distinct steps. But it is clear that the Judge realised this, and considered each step separately.
The attack on the soundness of the Judge’s decision fails.
The principle in Kable
I recently had cause to consider the decision in Kable in R v Granger [2004] SASC 156. I adhere to the views that I expressed there. I will not repeat all that I said. For present purposes it suffices to repeat my attempt to summarise the effect of Kable, after I had referred to the reasons given by each member of the High Court. I said at [26] – [27]:
“[26] The judgments in Kable establish a principle that the Supreme Courts, and probably other State courts in which federal jurisdiction is vested, may not be given functions by a State Parliament which are incompatible with the integrity, independence and impartiality required of a court which exercises invested federal jurisdiction under Ch III of the Constitution. This Court should treat those statements of principle as decisive even if, in view of the qualification in the reasons of Toohey J, Kable does not state an authoritative position in relation to the District Court in the present case. Kable was treated as authoritatively establishing a principle along the lines stated by me in Silbert v Director of Public Prosecutions (WA) [2002] WASCA 12; (2002) 25 WAR 330, in Attorney-General (Qld) v Fardon [2003] QCA 416 and in Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249.
[27] The principle stated in Kable has a potentially wide scope. It raises the question, what powers or functions or processes or manner of proceeding would be repugnant to or incompatible with the exercise of the judicial power of the Commonwealth, or, to be more specific, would impair the perception that the court in question was independent of the legislature and executive government or would create the impression that the judiciary had become an arm of the executive (Gaudron J at 104, McHugh J at 116 and Gummow J at 133-134).”
The issue raised by the principle in Kable is related to, but different from, the issue that arises in considering the limit placed by Chapter III on the powers of the Commonwealth Parliament to legislate in respect of courts created by the Parliament under s 71, and the exercise by them of judicial power under Chapter III: see Bachrach Pty Ltd v The State of Queensland [1998] HCA 54; (1998) 195 CLR 547 and Silbert v Director of Public Prosecutions (WA) [2004] HCA 9.
The legislation
It is convenient to begin by identifying the aspects of the legislation which, according to Mr Tilmouth, led to the conclusion that the function of the Court under s 23 was one that could not be conferred on the Supreme Court having regard to the principle on which Kable is based.
Mr Tilmouth did not argue that the procedure under s 23 of the Act required the Court to act in a manner inconsistent with it being a repository of Commonwealth judicial power. I assume this was because of the assumption on all sides that the proceedings were to be conducted in the usual way, the Director and Mr England being parties (s 26), the Director presenting the affirmative case and carrying the persuasive burden, Mr England having the usual right to challenge the Director’s evidence and to lead his own evidence if so advised. As well, the decision of the Judge was subject to appeal. Mr Tilmouth made no adverse comment on the Judge’s conclusion that he was not bound by the rules of evidence: at [20]. That is commonly the case in proceedings to determine sentence: see s 6 of the Act. Nor did he comment adversely on the Judge’s ruling that while facts concerning the offences had to be established beyond reasonable doubt, the Judge’s satisfaction that Mr England was unable to control his sexual instincts did not require proof of a fact beyond reasonable doubt. What was required was simply the Court being satisfied as to the relevant matter, taking into account the seriousness of the declaration and the consequences of making the direction: at [56].
Mr Tilmouth founded his submission on the fact that Mr England had received due punishment for his offences, by the sentence of the Court. The fixing of that punishment took account of all factors relevant to sentencing, including protection of the community and punishment of Mr England: see s 10(1)(i) and (k) of the Act, where these matters are identified as matters to be considered in fixing the sentence. The punishment proportionate to the crime had been imposed.
The direction was not a part of this sentence. It was separate from it. The direction was nothing other than a form of preventive detention. It served no other purpose. It constituted a form of double jeopardy because it operated after the appropriate punishment had been imposed and served: see s 23(7).
He argued that the judicial function of sentencing Mr England was complete once the Judge had imposed sentence. The Judge then was required to act as if an arm of the executive government, because the Judge was required to exercise powers that were not part of the sentencing process, and to perform a function (deciding whether to impose preventive detention) of a kind that was not judicial in nature, and was inconsistent with the sentencing process.
Before considering these submissions there are some further points that should be made about the process under s 23. Detention under a direction need not be in a prison: s 23(8)(b). Detention is subject to review every six months: s 23(9). The detained person can apply at any time for a discharge of the order: s 23(11). Although the section does not so provide, it is appropriate to assume that the detained person is entitled to access to reports made pursuant to s 23(9) and would in any event be entitled to present his or her own evidence in support of an application for discharge. On the other hand, under s 23(12) the court has a wide discretion in deciding whether to discharge an order. Section 24 of the Act contains a fairly detailed scheme for release on licence while a person is subject to a direction, the release on licence again being by order of the court on application by the Director, or, by implication, by the detained person: s 24(5). The criteria for release on licence are not identified, but presumably depend upon the court being satisfied that in the interests of the person and of the community it is appropriate to release the person on licence with a view to determining whether he or she can be safely permitted to return to the community. If a person has been on licence for a continuous period of three years, the order for detention is taken to have been discharged, unless the court orders otherwise: s 24(11). Finally, by s 27A an appeal lies to the Full Court against a decision on an application to discharge an order for detention, a decision on an application to release a person on licence and a decision to order that an order for detention be discharged after three years’ release on licence. These provisions establish, in general terms, that the regime of detention is subject to regular review, includes the ability to provide for gradual and supervised return to the community, and is subject to overall judicial supervision.
It can be seen that the legislation provides for a regime of detention which is aptly described as preventive, that is preventive in the interests of protecting the community. At least in a case in which sentence has been passed, that is the only function. The passing of sentence means that punishment in the ordinary sense has been imposed. The detention may be seen by the defendant as punitive, but the purpose of the detention appears to be to prevent the defendant from offending again, and so to protect the community from someone who is a real risk to the community, because he or she is incapable of controlling his or her sexual instincts. And, as I have already said, the punitive aspects of punishment have been resolved in the passing of sentence.
However, and this is a significant distinction from Kable, the regime applies only to a person who has committed offences that raise the possibility of incapacity to control sexual instincts, and who has not yet been sentenced for the offences which attract the operation of s 23. The regime of s 23 is closely associated with the process of sentencing the defendant. The power under s 23(5) can be exercised only in relation to a person who is found to be incapable of controlling sexual instincts.
The procedure leading to that finding, and to a declaration and direction under s 23(5), is consistent with procedures associated with the sentencing of offenders. In particular, the defendant the subject of an enquiry under s 23 has the right to participate in the hearing that follows the enquiry, to cross examine the witnesses presented by the Director, to challenge the Director’s case generally, and to present a case in reply if so advised. There is no reason to read the provisions of s 23 as excluding any of these customary rights.
The finding of incapacity and the decision to make a declaration and to give a direction are made by a judge in the light of the material before the Court. The judge is not constrained in any way in the judge’s decision making, other than by the weight properly attributed to the material before the judge. The decision making process is not controlled or influenced by the executive government or by legislative instruction. The Director and the defendant appear before the judge on an equal footing.
If a declaration is made and a direction is given, the detention of the defendant is thereafter subject to review. The defendant’s suitability for release can be tested by release on licence. The court has power to discharge the defendant from detention if and when the interests of the community no longer require that the detention continue.
The decision to make a declaration and give a direction is subject to appeal, as are decisions made as part of what I have called the review process: s 27A.
And, as I mentioned earlier, s 24 provides a regime for release on licence, the regime again being subject to judicial supervision and control.
It can also be said that the regime of s 23 as a whole is similar to, and arguably an improvement on, well known procedures under the Criminal Law Consolidation Act 1935 when it was in an earlier form. Those provisions have quite a long history. By way of illustration only I refer to the Criminal Law Consolidation Act 1935 – 1975 (the 1975 consolidation) and in particular to s 77 (providing for detention at Her Majesty’s pleasure of offenders suffering from venereal disease), s 77a (providing for detention during Her Majesty’s pleasure of offenders incapable of exercising proper control over sexual instincts), and s 319 (providing for detention at Her Majesty’s pleasure of an offender declared to be an habitual criminal). Provisions of this kind have been common in Australia: see the cases and legislation referred to by the Judge below in R v England at [30]-[36], and the cases and legislation referred to in R v Moffatt [1998] 2 VR 229 at 234-236 Winneke P and at 251-252 Hayne JA.
Some of these provisions are relics from the past, and so, fortunately, are some of the procedures that they ordain. But they also serve as a reminder that the sentencing process, and the judicial function in connection with the sentencing of offenders, are not fixed beyond change in their present form. Changing circumstances may warrant or call for changed approaches to sentencing. So may changing community attitudes and social values. These are largely matters for Parliament. And, at least in relation to State courts, Parliament has considerable latitude, subject only to fundamental principles or limitations. Kable is an illustration of one important limitation in this respect, traceable to the requirements of the Australian Constitution.
However, I emphasise the point that the sentencing process as it is understood today, is not immutable by any means. Parliament is at liberty to change it. The wisdom and merit of those changes is a matter for Parliament. Unless Parliament confers on the court functions or powers that are inconsistent with the requirements of the Australian Constitution, or for some other reason beyond the reach of legislative power, those functions and powers are validly conferred.
Consideration of submissions
As I said earlier, Mr Tilmouth focused his submission on the fact that the direction for detention until further order is purely preventive and protective, the purpose of punishment being served by the sentence imposed. I have referred to other aspects of the regime that I consider warrant consideration.
It is not necessary to decide whether the power exercised under s 23 is properly characterised as judicial power or not. State courts may validly be granted powers that are not judicial powers.
The principle expressed in Kable, which principle finds its roots in earlier High Court decisions referred to in Kable, does not rest on the principle that State courts, in which the judicial power of the Commonwealth maybe vested, may exercise only judicial powers. The limitation on State legislative power that is found in Kable is a narrower limitation than the limitation on Commonwealth legislative power in respect of Commonwealth courts. On the other hand, it rests on a principle that cannot be neatly summarised. Earlier in these reasons I set out the attempt that I made in Granger to summarise the principle. The principle of Kable is intended to ensure that State Supreme Courts are not required to exercise their powers (judicial or non-judicial), or to act, in a manner that would render them unsuitable as courts to exercise Commonwealth judicial power.
According to Kable (putting things briefly and somewhat generally for the sake of convenience), a State court will be an unsuitable repository of Commonwealth judicial power if it is a court required by State legislation to act in a manner fundamentally inconsistent with the usual requirements of judicial process (this can embrace substance and procedure), and in particular if the court is required to perform a function or to act in a manner (as a result of legislative dictation or direction, or procedural provisions) that makes the court appear a mere instrument of the executive government in implementing the will of the legislature.
In each case in which Kable is invoked, it is necessary to return to what was said there, and to consider closely the application of the relevant principle to the circumstances in question. The principle that underlies Kable must be applied with careful attention to the detail of the legislation.
As to the requirements of judicial process, as I have called it, I refer to what Gaudron J said in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [74]:
“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”
I do not think Her Honour meant that each of these prescriptions must be met in every case. However, with respect, Her Honour has summarised in that passage matters that fall for consideration in applying the principle stated in Kable, even though Her Honour was there considering Commonwealth legislation.
As to the issue of legislative dictation or the want of independent decision making, I refer by way of illustration to what Brennan CJ said in Nicholas at [20]:
“Some characteristics of a court flow from a consideration of this function, including the duty to act and to be seen to be acting impartially. We are not concerned with these characteristics in the present case, except in so far as the duty to act impartially is inconsistent with the acceptance of instructions from the legislature to find or not to find a fact or otherwise to exercise judicial power in a particular way. A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.” (Footnotes omitted)
As to the requirement of independence affecting the kind of function that may be conferred on a State court, I refer to what McHugh J said in Kable at 117:
“While nothing in Ch III prevents a State from conferring non-judicial functions on a State Supreme Court in respect of non-federal matters, those non-judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State. A State law which gave the Supreme Court powers to determine issues of a purely governmental nature – for example, how much of the State Budget should be spent on child welfare or what policies should be pursued by a particular government department – would be invalid. It would have the effect of so closely identifying the Supreme Court with the government of the State that it would give the appearance that the Supreme Court was part of the executive government of the State. The law would fail not because it breached any entrenched doctrine of separation powers in the State Constitution but because it gave the appearance that a court invested with federal jurisdiction was not independent of its State government.” (Footnote omitted)
I refer also to what Gummow J said on this point, in a passage which touches on matters of procedure and substance. He said at 134:
“The Act is an extraordinary piece of legislation. The making thereunder of “detention orders” by the Supreme Court in the exercise of what the statute purports to classify as an augmentation of its ordinary jurisdiction, to the public mind, and in particular to those to be tried before the Supreme Court for offences against one or other or both of the State and federal criminal law, is calculated to have a deleterious effect. This is that the political and policy decisions to which the Act seeks to give effect, involving the incarceration of a citizen by court order but not as punishment for a finding of criminal conduct, have been ratified by the reputation and authority of the Australian judiciary. The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality to which I have referred.”
Conclusions

I return to s 23.
As I have already said, the regime of s 23 is closely associated with the process of sentencing an offender. It is not something obviously remote from a recognised judicial function.
The process and the procedures are, in form and in substance, consistent with processes and procedures followed in sentencing offenders. The procedures are consistent with contemporary requirements of fairness and due process.
In making its decision, the court exercises a real decision making function, and a genuine ultimate discretion under s 23(5). Neither the procedure nor the material available to the court constrain the court to make a decision other than the appropriate decision on the material the parties have put before the court. Giving a direction under s 23(5) has grave consequences for the defendant in question. But the direction will be made only if the defendant has committed relevant offences, and a finding is made that the offender is incapable of controlling the offender’s sexual instincts. Such an offender is obviously a risk to society. The appropriate response to that risk is a matter for Parliament, unless the legislative response involves conferring functions that are incompatible with the integrity, independence and impartiality required of a court invested with Commonwealth judicial power.
The fact that the defendant has been sentenced and so punished for the offender’s offence is relevant, but highlights the fact that in exceptional cases there may be offenders as to whom the legitimate interests of society require greater protection than is provided by the usual sentencing process. And so, the issue again arises of whether, if Parliament considers it appropriate to provide greater protection, the courts of the State can be involved in the provision of that greater protection, and if so subject to what restraints. In other words, I suggest, it cannot be said that Parliament cannot legislate to protect society against offenders of the kind who fall within the reach of s 23. And it would be going a long way to suggest that if it does, the courts cannot be involved in the provision of that protection. Indeed, from many points of view it would be undesirable if the courts were not involved. Accordingly, the question narrows to one of whether the manner in which the court is involved is offensive to the principle in Kable.
Finally, as I have already said, the regime of s 23 is one of a kind well known in our legal system. I have referred to its predecessors in this State, and to judicial references to like legislation in other States. There is no need to multiply examples.
Legislation of this kind has been referred to, admittedly in general terms, without disapproval by Deane J in Veen v The Queen [No 2] (1988) 164 CLR 465 at 495, and by Mason CJ, Brennan, Deane, Toohey and Gaudron JJ in Chester v The Queen (1988) 165 CLR 611 at 617-619. In Kable, Toohey J (at 98) referred to “a system of preventive detention with appropriate safeguards, consequent upon or ancillary to the adjudication of guilt”, without any apparent disapproval. Similarly, McHugh J (at 121) referred to “general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts”, and again indicated that he accepted the validity of such laws. These of course are general observations, and are to be treated accordingly. But they do suggest that viewing the regime as a whole, it is not one of a kind that offends the principle on which Kable is based.
At the State level, somewhat similar legislation has been upheld, after consideration of the Kable principle, by the Court of Appeal of Victoria in R v Moffatt [1998] 2 VR 229 and by the Court of Appeal of Queensland in Attorney-General (Qld.) v Fardon [2003] QCA 416.
Each of those decisions illustrates the need for careful attention to the detail of the legislation in question, but as I understand the judgments in those cases they tend to support the validity of s 23.
I have not referred to High Court decisions such as Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1. That decision, as I understand it, focuses mainly on the power of the executive government to order that a citizen be involuntarily confined in custody. That is a matter that raises different issues. On that topic, see also Kruger v Commonwealth (1997) 190 CLR 1 at 161-162 Gummow J.
I have come to the conclusion that neither the subject matter of the power conferred by s 23, nor the powers, processes and procedures that are involved, are inconsistent with the fundamentals of the judicial process, or require the court to act in a manner repugnant to judicial process. Nor does s 23 confer functions that give rise to the appearance that the court is not independent of the executive government, either because of the manner in which the court is required to proceed and make a decision, or because of the nature of the decision made. To the contrary, as a matter of substance and of procedure, s 23 provides for a regime which has a long association, in the courts of Australian States, with the sentencing of offenders. There are, of course, detention procedures that do not involve the judiciary, such as procedures for the detention of mentally ill persons under the Mental Health Act 1993 (SA). But that merely illustrates that the commission of offences may provide an appropriate basis for Parliament to confer a power on a court to order indefinite detention, while the affliction of mental illness may make it appropriate for detention of the mentally ill person to be dealt with in other ways. Finally, it is implicit in what I have said that, in my opinion, the fact that Mr England has received due punishment for his offences is not an indicator of invalidity. The rationale underlying s 23 is that Mr England is a person who, having served the appropriate sentence, will remain a threat to society unless there is a finding that he has acquired the ability to control his sexual instincts, or unless treatment and measures such as supervision mean that he can be released without significant risk to society, although he remains incapable of controlling his sexual instincts.
The circumstances of the present case are sufficiently different from the circumstances before the Court in Kable to indicate that the legislation now under consideration is not invalid. The decision in Kable rested on a range of considerations, to which different members of the Court gave different emphasis. But there are several distinctive features of the legislation considered by the Court in Kable, which are not found in the present case. First, the legislation in Kable applied only to one person, that is to Mr Kable. Several members of the Court remarked on the fact that this, coupled with the procedural aspects of the legislation, conveyed a distinct implication that Parliament expected Mr Kable to be imprisoned, and was treating the Supreme Court as its functionary or instrument to that end: see for example, McHugh J at 121. That is, that the court was being treated as an arm or instrument of the executive government. Next, the process of making a detention order had no connection with the sentencing of Mr Kable. Some members of the Court, for example, McHugh J at 123, treated the court’s discretion as inappropriately confined. Moreover, the making of a detention order was not based on a finding about Mr Kable as he was at the making of the order, but merely on a prediction about what he might do in the future. These features in combination suggest that a comparison of the legislation before the Court in Kable, and the legislation before the Court now, does not point towards invalidity of the legislation now under consideration.
For those reasons I would reject the challenge to the validity of the legislation.
I would dismiss the appeal against sentence.
PERRY J In my view, the appeal should be dismissed.
I agree with the reasons published by Doyle CJ.
The case raises serious issues as to the circumstances in which a person may be detained in custody indefinitely. This prompts me to add some observations of my own.
It is convenient to start by referring to certain basic principles of the common law:
Indefinite detention at the will of the Executive is unlawful.[1]
Determining criminal liability and, when that liability is established, punishment, including the imposition of a prison sentence, are functions which belong exclusively to the courts.[2]
In the exercise of its exclusive jurisdiction to determine punishment following conviction for a crime, a court is bound to act in accordance with the principle of proportionality. One aspect of that principle is that:
“… a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender …”[3]
[1]   See Scalia J, with whom Stevens J concurred, in Hamdi v Rumsfeld, 72 USLW 4607 at 4621 (2004):
“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
quoted with approval by Gummow J in Al-Kateb v Godwin (unreported) [2004] HCA 37 at [137], 6 August 2004.
[2]   See Lim and Ors v The Minister for Immigration and Anor (1992) 176 CLR 1 in the joint judgment of Brennan, Deane and Dawson JJ at 27:
“… putting to one side … exceptional cases … the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.” (my emphasis)
The exceptional cases include the power of the legislature to punish for contempt, the power of military tribunals to enforce military discipline, and detention of the mentally ill. And see R (Anderson) v Home Secretary [2003] 1 AC 837 per Lord Steyn at 891 and the cases and authorities there cited.
[3]   Veen v The Queen (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 472, citing Veen (No 1) (1979) 143 CLR 458 at 468. And see R v Moffatt [1998] 2 VR 229 per Hayne JA at 251.
Those principles are expressions of the doctrine of the separation of powers. As such, they are not entrenched in the Constitution of the State of South Australia.[4] They may be varied and affected by statute.[5] Putting aside implications from the Commonwealth Constitution, the State legislature may confer executive or even legislative powers on State courts, or judicial powers on the executive.
[4] Gilbertson v South Australia and Anor (1976) 15 SASR 66 per Bray CJ at 85.
[5] Selway, The Constitution of South Australia, The Federation Press (1997) 122-123 [8.5.11]. I do not address the interesting question whether there are any outer limits to the exercise of the legislative powers of the State of the kind discussed by Dawson J in Kable v DPP (NSW) (1996) 189 CLR 51 at 72 et seq.
This is in contrast with the powers of the Commonwealth Parliament, which are circumscribed by the separation of powers between the legislature, the executive and the judiciary embodied in the Commonwealth Constitution.
“It has long been held that the separate and distinct vesting of judicial power precludes the vesting of such power in institutions or persons other than the courts specified in section 71 of the Constitution and that non-judicial power cannot be vested in such courts except to the extent that such powers are incidental or ancillary to the exercise of the judicial power of the Commonwealth.” (my emphasis)[6]
[6] M.A. Perry, The High Court at the Crossroads: Essays in Constitutional Law, The Federation Press (2000), Chapter 5, par 148.
Insofar as State courts are invested with federal jurisdiction, they may not be given powers the exercise of which is incompatible with the separation from the political branches of government which is a requirement of Chapter III of the Commonwealth Constitution. This much was made plain by the High Court in Kable v DPP (NSW).[7] Judges of State courts invested with federal jurisdiction must be, and be “perceived to be, independent of the legislature or the executive government”.[8]
[7] (1995-1996) 189 CLR 51.
[8] Ibid per McHugh J at 116.
That perception will be impaired if a State legislature attempts to vest in a State court “non judicial functions … of a nature that might lead an ordinary reasonable member of the public to conclude that the court was not independent of the executive government of the State”.[9] In such circumstances “[the] judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality …”.[10]
[9] Ibid per McHugh J at 117.
[10] Ibid per Gummow J at 134.
This case comes down to a consideration of the question whether or not the powers conferred by s 23 of the Criminal Law Sentencing Act 1988 (“the Act”) invest the court with jurisdiction, the exercise of which threatens the integrity of the judicial process in the manner described in Kable.
In determining that question, the observations of McHugh J which appear in the following passage from his judgment in Kable are apposite:[11]
“… although New South Wales has no entrenched doctrine of the separation of powers and although the Commonwealth doctrine of separation of powers cannot apply to the State, in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers.” (emphasis added)
[11] 189 CLR 51 at 118.
It follows that the common law principles to which I referred at the outset of this judgment, may still have a part to play. For example, if the court was empowered to pass a sentence of indefinite detention in circumstances in which release from that detention was dependent solely upon the will of the Executive, it may well be that there would be a breach of the Kable principle.[12]
[12] In R (Anderson) v Home Secretary (supra), the House of Lords held that legislation which enabled the Home Secretary to fix a “tariff”, being the equivalent of the fixation of a non-parole period following imposition by a court of a sentence of life imprisonment, infringed the prisoner’s entitlement to a “fair trial by an independent and impartial tribunal”, one aspect of such a fair trial being the sentencing process following conviction. The relevant statutory provisions were held in consequence to conflict with Article 6(1) of the European Convention for Human Rights, with the result that the House of Lords made a declaration of incompatibility with the Convention viz Human Rights Act 1998 (UK) s 4(2).
But that is not the case here.
Where an order for indefinite detention is made pursuant s 23 of the Act, the various procedures set out in the section as to discharge from detention or release on licence may be invoked by the defendant, as well as by the Director of Public Prosecutions, and involve a further hearing by the court. The procedures are set out in the judgment of Doyle CJ, and I do not pause to refer to them again.
Importantly, the court remains in control of those procedures throughout. That is subject only to the possible intervention of the Training Centre Review Board or the Parole Board in the circumstance postulated in s 24 relating to variation of revocation of a condition of a licence or the imposition of a further conditions (s 24(5)(a) of the Act), or cancellation of release on licence in the event of contravention of a condition (s 24(5)(b)).
Those provisions require that the defendant be afforded a reasonable opportunity to make submissions (s 24(5)(a)).
I do not see the potential intervention by either of the Boards to which I have referred as detracting from the essential nature of the function discharged by the court in exercising the powers under Division 3 of the Act.
It might be suggested that the imposition of a sentence of indeterminate duration of the kind in question, infringes the common law principle of proportionality to which I have earlier referred. But that principle applies only to that part of the sentence as represents the punishment for the offending conduct.
If the court imposes a sentence of indeterminate duration, either “in addition to, or instead of imposing a sentence of imprisonment for the offence” (s 23(6)), the legitimacy of that process must be determined by reference to other principles.
For present purposes, the relevant question is whether, in pursuing such a course, the court is exercising a power which is essentially “non judicial” in the relevant sense, so as to render the court an unsuitable repository of Commonwealth judicial power.
In addressing that question, it must be accepted that sentences involving indefinite detention have long been a feature of the sentencing powers exercised by State courts.[13] The earlier provisions which at one time found expression in s 77, s 77a and s 319 of the Criminal Law Consolidation Act 1935, referred to in the judgment by Doyle CJ, are examples.
[13] See the summary of the history of such legislation in the judgment of Hayne J in Moffatt (supra) at 234.
Similar legislation to that now under consideration was recently considered by the Court of Appeal of the Supreme Court of Queensland in AG (Qld) v Fardon,[14] The legislation there in question was the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD).
[14] [2003] QCA 416, 23 September 2003. An appeal to the High Court of Australia has been argued and the decision reserved.
That Act provided for a regime of preventative detention by order of the Supreme Court of offenders in circumstances where the court was satisfied that release would pose “a serious danger to the community”,[15] in that there would be “an unacceptable risk … that the prisoner [would] commit a serious sexual offence”.[16]
[15] Section 13(1).
[16] Section 13(2).
By a majority,[17] the court held that the Kable principle was not infringed by the legislation. In doing so, the majority judges emphasised the fact that the making of an order for detention followed an adjudication of criminal guilt and a hearing in which the ordinary rules of evidence applied, and other procedures were observed, which were properly characterised as essentially judicial in nature.
[17] de Jersey CJ and Williams JA; McMurdo P dissenting.
One point of distinction between the legislation under consideration in Fardon and the legislation which applies in this State, is that an application for a detention order under the Queensland provisions may only be made during the last six months of the term of the defendant’s sentence of imprisonment imposed by way of a penalty for the substantive offence.
The procedures under s 23 of the Act are more closely integrated with the sentencing process. If Fardon was correctly decided, the procedures now in operation would be beyond challenge.
Be that as it may, at the end of the day, the question is whether or not the powers vested in the Supreme Court by s 23 of the Act vest this court with non-judicial powers of a kind which compromise the institutional integrity of the court in such a way as to offend the Kable principle.
In my view, they do not do so. The decision in Kable may be distinguished for the reasons given by the Chief Justice. I agree with him that the function of the court in the exercise of the powers conferred by s 23 are essentially judicial and do not, in the relevant sense, compromise the institutional integrity of the court and its separation from the Executive.
Before parting with the matter, I add that if the argument advanced by the appellant was to succeed, the consequence may well be that similar powers would be given to the Executive. While that consideration is not relevant to resolution of the legal issues raised by the appellant, such a step would be undesirable.

In matters involving the liberty of the subject, where possible, judicial consideration by a Court of law, with all of the safeguards which that entails, is to be preferred.
I would dismiss the appeal.
WHITE J I agree with the order proposed by the Chief Justice and with his reasons. There is nothing I wish to add.