R v England

R v ENGLAND
[2003] SASC
Court of Criminal Appeal: Bleby, Besanko and Sulan JJ

BLEBY J. Where a defendant is convicted in the District Court of an offence to which s 23 of the Criminal Law (Sentencing) Act 1988 (“the Act”) applies, the Court may, if of the opinion that the powers under that section should be exercised in relation to the defendant, remand the defendant to appear for sentence before the Supreme Court: s 23(2). That is what happened in this case.
On 2 November 2001 the defendant was convicted after a trial by jury of five separate offences involving either indecent assault or rape. The offences occurred in November and December 1998. They were offences to which s 23 of the Act applied. He had previously been convicted of one offence of indecent assault and two offences of rape which occurred in September and October 1992. He was in custody between 5 October 1993 and 23 April 1998.
What happens after a defendant is remanded pursuant to s 23(2) of the Act is governed by subsections (3) to (12) of s 23:
“(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 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 should be discharged.”
As the sentencing Judge, I made an order in terms of s 23(3). The medical practitioners directed to inquire into the defendant’s mental condition were Dr Craig Raeside and Dr N P Nambiar.
In his report dated 18 November 2002 Dr Raeside said:
“I attended Yatala Labour Prison and attempted to interview Mr England on 8/11/02. Upon arrival at B Division I was informed by a correctional officer that Mr England had declined to meet with me. I then attempted to speak with him directly, which I was able to, and he again (in a polite and courteous way) stated that he did not wish to speak to me, having been given some ‘advice’.”
Notwithstanding the defendant’s refusal to speak with him, from other material available to him including previous contacts with the defendant, Dr Raeside has reported to the Court on whether the defendant is incapable of controlling his sexual instincts. However, it is not a report on oath as required by subsection (5).
In his report dated 23 April 2003 Dr Nambiar said:
“I wish to advise the court from the outset that I have been disadvantaged by the fact that I have not been able to interview Mr England for the purpose of the assessment. I initially arranged to assess Mr England at the Yatala Labour Prison on 12 December 2002, at which time he declined. I later arranged to examine Mr England at the Yatala Labour Prison on 3 April 2003 and he once again declined. Given the limitations of a psychiatric examination without actually speaking to the patient I can only provide an opinion based on speculation rather than a comprehensive assessment.”
Dr Nambiar also provided a report, not on oath, but again by reference to extraneous material without ever having been able to speak to the defendant.
As a result of these reports I referred the following questions for consideration by the Full Court pursuant to s 350(1) of the Criminal Law Consolidation Act 1935:
“(1)In the circumstances disclosed in the reports of Dr Raeside and Dr Nambiar has either of them carried out an independent personal examination of the defendant for the purposes of section 23(4) of the Sentencing Act?
(2)If the answer to question 1 is “No”, and if the defendant continues to decline to speak to Dr Raeside and Dr Nambiar:
(a)is either of Dr Raeside or Dr Nambiar able to carry out the inquiry referred to in section 23(3) and (4) of the Sentencing Act in respect of the defendant?
(b)If both Dr Raeside and Dr Nambiar report to the Supreme Court, on oath, that the defendant is incapable of controlling his sexual instincts, am I able to act on such reports in reaching a consideration (sic) under section 23(5)(b) of the Sentencing Act?
(3)If Dr Raeside and Dr Nambiar report to the Supreme Court, on oath, that the defendant is incapable of controlling his sexual instincts, is the defendant entitled to cross-examine those doctors before me as to the facts and opinions recorded in their respective reports?”
The word “consideration” in question (2)(b) is a mistake. Counsel accepted that it should read “conclusion”. I propose to answer the question as if that is what was intended. It would appear to have no bearing on the correct answer.
The evident purpose of detention under s 23 is the protection of the public from a person whom the Court is satisfied is incapable, for whatever reason, of controlling his or her sexual instincts. Detention cannot occur because of “unwillingness to exercise self-control, (or) a high degree of sexual drive (or) a high degree of temptation resulting from innate characteristics or external circumstances, (or) special susceptibility to such temptation; what is in question is true incapacity to exercise the necessary degree of self-control over the sexual instincts”: R v Kiltie (1986) 41 SASR 52 per King CJ at 62.
Detention under this section is essentially preventative and protective, not punitive. It is not a sentence. It is not imposed by reference to the sentencing criteria contained in s 10 of the Criminal Law (Sentencing) Act 1988. There is no upper limit on the period of detention under the section. There is no notion of parole involved. The only relevant criteria to be considered when determining a period of detention are the interests of the person and of the community: subsection (12). Subsection (6), by providing that the power may be exercised in addition to or instead of imposing a sentence, recognises the important difference between a sentence and detention imposed under s 23.
Nevertheless, the consequences are potentially serious for a defendant who is the subject of adverse reports on oath by each of the medical practitioners. It may result in the defendant being deprived of his or her liberty for a period well beyond the period of any sentence imposed by the Court. The defendant can only be discharged when the Court forms the opinion that he or she should be, having taken into account the matters referred to in subsection (12), subject, nevertheless, to possible earlier release on licence in accordance with the provisions of s 24.
It is because of the potentially serious consequences for a defendant that the Act provides for a number of procedural and substantive requirements to be met before such a potentially far-reaching order can be made. One of them is a mandatory “independent personal examination” of the defendant. Whatever else the medical practitioners may have regard to, they must, for the purposes of their inquiry, carry out an independent personal examination of the defendant, whatever that entails. If they do not, they are unable to complete the inquiry under subsection (3) and therefore to report to the Court.
There was some discussion in argument as to whether the word “personal” referred to the medical practitioner carrying out the examination or to the defendant and the nature of the examination. I incline to the view that it is the latter. By virtue of its juxtaposition with the word “examination”, it seems to qualify the latter. It is not needed to qualify who must carry out the examination. That is to be done by the medical practitioner and is to be “independent”. If it were intended to refer to the person conducting the examination, I incline to the view that Parliament would have used some expression such as that the medical practitioner “must personally carry out an independent examination of the defendant”.
The interpretation I favour is borne out by the history of the legislation on this topic. A provision of this nature first appeared in the Criminal Law Amendment Act 1917. Section 7 of that Act was limited to a person convicted of a sexual offence and who was suspected of suffering from a venereal disease. Sub-section (1) provided:
“7. (1) In every case where there is reason to suspect that a person guilty of any offence of a sexual nature (not being an offence punishable on summary conviction) is suffering from a venereal disease, the Court or Judge sitting for the trial of such offence shall direct that two or more legally qualified medical practitioners be sworn to inquire whether such person is so suffering, and if after due inquiry (which shall be made by personal examination of such person by the said practitioners themselves) they report that such person is so suffering, such Court or Judge shall, as part of the sentence of such person, declare that he is suffering from a venereal disease.” (Emphasis added).
If a declaration was made, the person was to be detained during His Majesty’s pleasure until the person was certified as no longer suffering from the venereal disease. It is reasonably clear that the word “personal” in that subsection referred to the nature of the examination, and that the purpose of the examination required a physical examination. Section 8 related to a person who was said to be unable to control his sexual instincts. It provided:
“8. The provisions of section 7 of this Act shall apply, mutatis mutandis, in the case of a person guilty of such an offence as mentioned in that section where there is reason to suspect that the mental condition of such person is such that he is incapable of exercising proper control over his sexual instincts.”
Thus, from the inception of legislation relating to persons incapable of exercising control over their sexual instincts, the examination required was an examination of the person.
The same structure was repeated in s 77(1) of the Criminal Law Consolidation Act 1935. That section provided:
“77.   (1)    In every case where there is reason to suspect that a person guilty of any offence of a sexual nature (not being an offence punishable on summary conviction):
(a)    is suffering from a venereal disease; or
(b)    is of such a mental condition that he is incapable of exercising proper control over his sexual instincts,
the Court or Judge shall direct that two or more legally qualified medical practitioners be sworn to inquire whether such person is so suffering, or incapable, and if after due inquiry (which shall be made by personal examination of such person by the said practitioners themselves) they report that he is so suffering or incapable, the Court or Judge shall, as part of the sentence of such person, declare that he is suffering from a venereal disease, or is incapable of exercising proper control over his sexual instincts as the case may be.” (Emphasis added).
Although the subsection specifically provided that the declaration was part of the sentence, that is not so under the present section. For present purposes, the point about s 77(1), when enacted, is that it repeated the wording of the 1917 Act in that it required a “personal examination” by the medical practitioners “themselves”.
Section 77(1) was amended by the Criminal Law Consolidation Act Amendment Act 1940. As amended, s 77 confined its provisions to a defendant suffering from a venereal disease. Subsection (2) provided:
“(2)The medical practitioners shall conduct the enquiry by personal examination of the offender and shall give their report on oath to the court or judge.”
As the section was confined to a person suspected of having venereal disease, the examination, fairly obviously, required a personal examination in the sense of a physical examination of the person.
By the same amending Act, s 77a of the Act was inserted. It dealt with persons said to be incapable of exercising proper control over their sexual instincts. Subsection (2) of that section provided:
“(2)The medical practitioners shall conduct the inquiry by means of personal examination of the offender and by reference to the depositions and such other records relating to him as they think necessary, and shall give their report on oath to the court or judge.”
The identical wording and the history to that time provides the strongest inference that the word “personal” related to the nature of the examination rather than to the person by whom it was carried out.
Section 77a of the Criminal Law Consolidation Act was replaced by s 23 of the Criminal Law (Sentencing) Act 1988. The repetition of the phrase “personal examination” suggests, in the absence of any clear indication to the contrary, that the same meaning was intended.
It follows that what must be considered is whether the medical practitioners have carried out an examination of the person of the defendant. It must be an independent examination. What is sufficient to constitute a personal examination will depend on the purpose of the examination. Under the former legislation, in so far as it concerned venereal disease, it must have included a physical examination of the defendant’s genital area. Section 23 requires an examination for the purpose of determining the defendant’s mental condition with particular reference to the defendant’s ability to control his or her sexual instincts. For that the medical practitioner may rely on a number of different sources of information. It may not require a physical examination of any part of the body. However, it is difficult to conceive of an inquiry into a person’s mental condition as not including the requirement of at least a physical meeting with and observation of the defendant, and an opportunity to speak to, to ask questions of and to observe any responses and reactions of the defendant.
It is a relevant circumstance that, at the time of the inquiry the defendant will almost certainly be in custody and can be compelled to the presence of the medical practitioner.
Leaving aside, for the moment, an examination for the purposes of s 23, a personal examination by a medical practitioner may include a physical examination. It may include the use of diagnostic tools such as x-rays, a CT scan or the report of a pathologist. It may include some forms of psychological testing. It will normally include the obtaining of a relevant history. That may come from a variety of sources including documentary evidence, a close relative, or from the subject being examined. Sometimes relevant information will be gained from the way in which the subject presents – how he or she looks, from facial or other expressions, mode of dress or personal reactions to particular situations, without any verbal response to questions. An examination may be limited by a number of factors, including the degree of consciousness of the subject, the person’s willingness to undergo diagnostic tests, or some form of physical restriction or disability which prevents what might otherwise be a more complete examination. There may be language barriers, or the limited vocabulary of or comprehension by the subject may limit the effectiveness of an examination. In obtaining information from the subject relevant to the formation of an opinion, the amount of relevant information obtainable from a deaf mute or an illiterate person may be less than ideal and less than complete because of limitations inherent in that person. Although a person examined may answer all questions put by the medical practitioner, the person may, whether deliberately or otherwise, give misleading and incomplete information. However, within the limits imposed by all of those restrictions and disabilities, an examination may still occur and an opinion may be formed.
Any of these difficulties may result in a faulty or inaccurate opinion. But in each case, even if little or no relevant information is obtained from the subject, there will still have been an examination, even if only a brief visual examination.
A person may answer some questions and not others. Indeed, this could well arise upon an examination conducted under s 23(4)(a) where, although a person may have been convicted of a number of sexual offences, the defendant is aware of other offences with which he or she has not been charged and in respect of which he or she is entitled to the privilege against self-incrimination. The defendant may withhold information or refuse to answer questions for that reason. He or she may cooperate to some extent but not to the extent that the medical practitioner may require. There is no obligation imposed on the defendant by the section which requires the defendant to co-operate in any examination under subsection (4).
No doubt, many differing examples can be given of the restrictions that may occur upon a personal examination by a medical practitioner. Yet, in each of those instances, some form of examination can still occur. Some information will have been obtained about the subject, although it may be insufficient for a proper diagnosis. However, it is nonetheless an examination, limited by whatever the relevant limiting factors may be. Some of those will be beyond the control of the subject. Some will not.

In this case, the limiting factor in each case is the refusal of the defendant to answer the questions of or to speak relevantly to the medical practitioner. Nevertheless, in the case of Dr Raeside, there has been a physical meeting and an attempt by Dr Raeside to ask questions. There has been a face-to-face encounter. It is less clear as to what occurred with Dr Nambiar. On the two occasions when he attempted to interview the defendant, the defendant “declined”. It is not clear whether Dr Nambiar relied on someone else telling him that the defendant would refuse to speak to him or whether Dr Nambiar actually spoke to the defendant and he declined further to be interviewed.
In each case, the ability to proceed further was governed by the deliberate refusal of the defendant to answer the questions of the medical practitioner. That limitation may be a severe one for the purpose of an inquiry into the defendant’s mental condition such as is required by subsection (3).
Assuming that in each case a face-to-face meeting occurred, the limitation on the examination was one that was caused by the defendant. However, the examination in each case proceeded so far as that limitation would allow. Its less than ideal nature was not brought about by any failure or lack of willingness on the part of the medical practitioners to carry out their obligations. They have obtained as much information from the subject as they might from a deaf mute or a non-English speaking person who is unable effectively to communicate.
I consider that when a medical practitioner has met with a defendant and has gone as far as he or she reasonably can to complete the examination, but is restricted in the comprehensiveness of the examination by any limitations inherent in the defendant or by the actions, state of mind or an unwillingness to cooperate on the part of the defendant, then there has been an independent personal examination for the purpose of s 23(4)(a) of the Criminal Law (Sentencing) Act.
Accordingly, I would hold that Dr Raeside has conducted such an examination. In the case of Dr Nambiar, it is not possible to say, on present information, whether such a physical encounter has occurred sufficient to constitute an examination for the purposes of the subsection. As Dr Raeside has conducted such an examination, he is not restricted, by the nature of the examination, from continuing with his inquiry into the mental condition of the defendant and from providing a report to the court as required by s 23. He is able to form an opinion as to the defendant’s capacity to control his sexual instincts. The same may be true of Dr Nambiar, although the nature of his report renders it impossible to say whether a personal examination has occurred.
The fact that, because of the limited nature of the examination, a report may be equivocal, or because any opinion expressed may be heavily qualified in later cross-examination because of limitations in the nature and extent of the examination, does not mean that the report on oath cannot be given. The process required by s 23 will not have failed. It may mean that the Court will have difficulty in being persuaded that an order should be made under subsection (5), and that the parliamentary intention to confine a person by reason of incapacity to control his or her sexual instincts may be frustrated on that account. If that is the case, it is a matter for Parliament to rectify by placing some form of compulsion on a defendant.
I would therefore answer question (1) “In the case of Dr Raeside, Yes; in the case of Dr Nambiar, Unable to answer”.
It follows that question (2) does not arise.
Question (3) can be dealt with relatively briefly. There is nothing in the section to suggest that the reports on oath of the medical practitioners are conclusive. The reports of two medical practitioners on oath that the defendant is incapable of controlling his or her sexual instincts are a necessary pre-requisite to the Court being able to make the declaration under s 23.
However, the Court may hear other evidence or representations: subsection (5)(b). Fairness demands that where they differ from the opinions of the medical practitioners, that evidence and those representations be put to the medical practitioners who then may or may not confirm their opinions. There is nothing in s 23 to suggest that normal rights of cross-examination should be denied. I see no reason to dissent in any way from what the Full Court decided in R v Hodge (1987) 48 SASR 91 in respect of analogous legislation. I would answer question (3) “Yes”.
Conclusion
For these reasons I would answer the questions referred as follows:
(1) In the case of Dr Raeside, Yes; in the case of Dr Nambiar, Unable to answer.
(2)This question does not arise.
(3)Yes.
BESANKO J: A Judge of this Court has reserved certain questions for the consideration and determination of the Full Court pursuant to s 350(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The facts which are relevant to the reference are set out in the Case Stated and are as follows:
“1.On 2 November 2001 the defendant was convicted by verdicts of a jury after a trial before Judge Bishop in the District Court of five separate incidents of sexual offending in November and December 1998. He was convicted of:
(i)     Burglary/Indecent Assault
(ii)    Burglary/Rape (x2)
(iii)   Burglary/Rape
(iv)    Burglary/Rape
(v)     Break and Enter/Indecent Assault (x2)
These are hereinafter referred to as the 1998 offences.
2.The defendant had previously been convicted of and sentenced for the following sexual offences:
(i)     Indecent Assault on 13 September 1992
(ii)    Rape (x2) on 15 October 1992
He was in custody between 5 October 1993 and 23 April 1998.
3.On 24 July 2002, Judge Bishop granted the application of the Director of Public Prosecutions for the defendant to be remanded to appear for sentence for the 1998 offences before the Supreme Court pursuant to s 23(2) Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
4.On 14 August 2002, I directed, pursuant to section 23(3) of the Sentencing Act, that two legally qualified medical practitioners namely Dr Craig Raeside and Dr N Nambiar, inquire into the defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling his sexual instincts.
5.By a written report dated 18 November 2002, Dr Craig Raeside reported that the defendant declined to speak to him in circumstances described in his report. A copy of his report is annexed hereto and marked ‘A’.
6.By a written report dated 23 April 2003, Dr N Nambiar reported that the defendant declined to speak to him when he attended Yatala Labour Prison on 12 December 2002 and then again on 3 April 2003. A copy of his report is annexed hereto and marked ‘B’.
7.I have not yet received a report on oath from either Dr Raeside or Dr Nambiar in accordance with the requirements of section 23(5) of the Sentencing Act and have not yet heard any submissions as to the sentence that should be imposed on the defendant.”
The questions of law reserved for the consideration and determination of this Court are as follows:
“(1)In the circumstances disclosed in the reports of Dr Raeside and Dr Nambiar has either of them carried out an independent personal examination of the defendant for the purposes of section 23(4) of the Sentencing Act?
(2)If the answer to question 1 is “No”, and if the defendant continues to decline to speak to Dr Raeside and Dr Nambiar:
(a) is either of Dr Raeside or Dr Nambiar able to carry out the inquiry referred to in section 23(3) and (4) of the Sentencing Act in respect of the defendant?
(b) If both Dr Raeside and Dr Nambiar report to the Supreme Court, on oath, that the defendant is incapable of controlling his sexual instincts, am I able to act on such reports in reaching a consideration (sic) under section 23(5)(b) of the Sentencing Act?
(3)If Dr Raeside and Dr Nambiar report to the Supreme Court, on oath, that the defendant is incapable of controlling his sexual instincts, is the defendant entitled to cross-examine those doctors before me as to the facts and opinions recorded in their respective reports?”
The use of the word “consideration” in question 2(b) is an error. It is common ground that the word should be “conclusion”.
I have reached the conclusion that the answers to the questions should be as follows:
(1)    Yes, in the case of both Dr Raeside and Dr Nambiar.
(2)    Does not arise.
(3)    Yes.
In his report dated 18 November 2002, Dr Raeside states that he went to the Yatala Labour Prison to speak to the defendant on 8 November 2002. Dr Raeside spoke to the defendant and advised him of the purpose of his visit. The defendant said that he did not wish to speak to Dr Raeside. In his report, Dr Raeside states that although he has been unable to speak to the defendant, his opinion is that the defendant is unable to control his sexual conduct and that he satisfies the criteria under s 23 of the Criminal Law (Sentencing) Act 1988 (“CLSA”).
In his report dated 23 April 2003, Dr Nambiar states that he arranged to assess the defendant on two occasions but that the defendant declined to speak to him on both occasions. He does not state whether he met the defendant and spoke to him. By reason of the fact that he has been unable to speak to the defendant, Dr Nambiar states that his opinion is “based on speculation rather than a comprehensive assessment”. Towards the end of his report Dr Nambiar states:
“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 evidence available would suggest would suggest (sic) that he is clearly not capable of controlling his impulses.
…
It would seem to me very unfortunate that in addition to there not being specific service to assist offenders like Mr England in prison, or provide any rehabilitation in regard to their sexual offending, that added to this problem I am being asked to provide an opinion without even meeting Mr England.”
The relevant provisions of the CLSA are set out in the reasons for judgment of Bleby J.
Although broadly framed, question one raises the question of whether Dr Raeside and Dr Nambiar have carried out “an independent personal examination of the defendant” within the provisions of s 23(4)(a) in circumstances in which the defendant has refused to be interviewed by either doctor. The Director submits that an interview with the defendant is not necessary. The Director submits that the doctors may carry out the relevant inquiry by reference to such information and material as they consider necessary provided they personally carry out the examination. The defendant submits that the examination must be of the defendant and that this must include an interview of the defendant. An interview must involve a process of the doctors seeking and obtaining information from the defendant. A meeting of the type described by Dr Raeside in his report is not sufficient.
Before turning to consider the words of the subsection, it is important to note some general matters. Section 23 of the CLSA replaced s 77a of the CLCA, a section which was in similar but not identical terms to s 23. A number of issues relating to the proper interpretation of s 77a were considered by the Full Court of this Court in R v Kiltie (1986) 41 SASR 52. In my opinion, a number of observations made in that case are of equal application to the scheme set out in s 23. First, the primary purpose of the section is the protection of the community from sexual offenders who are incapable of controlling their sexual instincts. At the same time I note that the scheme may involve a detention order against the defendant thereby depriving the defendant of his or her liberty. This fact must not be overlooked. Secondly, the mental condition referred to in the section need not be a psychiatric illness capable of diagnosis. King CJ described a “mental condition” in these terms (at 61 - 62):
“The adjective ‘mental’ is commonly used to describe the faculties of intellect and will, that is to say those faculties which enable a person, among other things, to understand the nature of conduct which is forbidden and to refrain from engaging in such conduct. Most people are possessed of qualities of intellect and will, that is to say mental qualities, which enable them to appreciate what forms of sexual conduct are forbidden and to refrain from forbidden conduct. Inability to do so amounts to incapacity to control one’s sexual instincts and must result from the lack of the mental qualities necessary for self-control in sexual matters. In that sense a person’s incapacity to control his sexual instincts must result from his mental condition. This is the sense, in my opinion, in which the expression ‘mental condition’ is used in the section.
It follows from what I have said that the expression ‘mental condition’ used in the section is not restricted to a condition which can be described as a psychiatric illness capable of diagnosis.”
Thirdly, it is important to remember that the relevant inquiry is an inquiry as to incapacity not unwillingness. Again to quote from King CJ in R v Kiltie (at 62):
“It is to be remembered, of course, that what is in question is not unwillingness to exercise self-control, nor a high degree of sexual drive, nor a high degree of temptation resulting from innate characteristics or external circumstances, nor special susceptibility to such temptation; what is in question is true incapacity to exercise the necessary degree of self-control over the sexual instincts. It may be difficult for a medical practitioner to arrive at the conclusion that there is true incapacity where there is no psychiatric illness capable of diagnosis; but that is a medical, not a legal problem.”
The difficulties associated with the interpretation of s 23(4) put forward by the defendant are obvious. First, if the defendant’s interpretation is correct, a defendant can thwart the operation of the scheme in s 23 by refusing to cooperate. This would be a surprising result to say the least bearing in mind that an important purpose of the scheme is the protection of the public. Secondly, if the defendant’s interpretation is correct it raises a difficult question for which there is no obvious answer, namely, what constitutes a sufficient interview. For example, has there been an interview if the defendant answers only a few questions in a plainly unresponsive way?
On the other hand, I do not think it can be argued that an interview would not ordinarily be an important part of the assessment for the purpose of the opinion contemplated by s 23. However, I do not think it can be said that the opinion referred to in s 23 can never be formed in the absence of an interview of the defendant.
I turn now to the words of s 23(4)(a). There is no issue between the parties in relation to the word, “independent”. I think the word “personal” relates to the doctor rather than the defendant. In other words, I think the examination of the defendant must be conducted by the doctor and it cannot be delegated by the doctor to a third person. At the same time, although the doctor must conduct the examination, s 23(4)(c) makes it clear that he may obtain assistance from third parties. I am not persuaded by reference to the history of the section and its forerunners that the word “personal” relates to the defendant. Bleby J has set out that history. I think the history of the relevant sections is somewhat equivocal, and in any event may have been influenced by the fact that in the case of suspected venereal disease a physical examination would be necessary. Even if I am wrong, and the word “personal” relates to the defendant, I do not think it advances the matter very far in terms of the present problem. It simply emphasises the fact that the examination must be of the defendant and not based on general sociological or criminological considerations (R v Hodge (1987) 48 SASR 91 per King CJ at 97). To my mind, the critical word for present purposes is the word “examination”. The doctor must examine the defendant. I do not think it can be argued that for the purposes of doing so he cannot have regard to documents and other material containing information which is relevant to the defendant’s mental condition. Must he also interview the defendant before he can be said to have conducted an “examination”? In my opinion, the answer to that question is “no”. To hold otherwise would enable a defendant to frustrate the purposes of the scheme in s 23 and lead to difficulties in determining precisely what constituted an interview for the purposes of the subsection.
I do not think that s 23(4)(a) requires as a minimum, a meeting face to face between the doctor and the defendant. With respect to Bleby J, I do not think the subsection should be interpreted so as to require a “physical encounter”. Presumably, a defendant can avoid such an encounter and it seems to me that the only purpose of reading the subsection in that way would be to ensure a doctor makes every effort to meet the defendant. I think a doctor would make every effort to interview the defendant because of the nature of the opinion he must form and because he can be challenged on the correctness of his opinion.
In my opinion, Dr Raeside and Dr Nambiar have each conducted an independent personal examination of the defendant and the answer to the first question is “yes, in the case of both Dr Raeside and Dr Nambiar”. In those circumstances, the second question does not arise.
In my opinion, the third question should be answered “yes”. A similar question arose under s 77a CLCA and was answered in the affirmative by the Full Court of this Court in R v Hodge (1987) 48 SASR 91. It is sufficient to refer to a passage in the reasons for judgment of King CJ at (95):
“The contents of the s 77a report vitally affect the interests of the offender. It may provide the legal basis for his indeterminate detention. A procedure which permitted a person to be so adversely affected without the right to test the material used against him by cross-examination, would be a grave affront to the principles of natural justice upon which legal procedures are based. The court should attribute to the legislature an intention to so affront the principles of justice only if that intention is declared in the plainest of language. I am unable to find any such intention indicated in s 77a. The use of the legal machinery of a report as the basis for the making of the order under that section does not preclude cross-examination of the makers of the report.
…
There is a further reason, in addition to the affront to justice which would be involved, why it is unlikely that Parliament intended that there should be no right of cross-examination of the makers of the report. The section expressly authorises evidence in rebuttal of the report. There would be grave practical difficulties for a judge who is faced with the task of weighing rebuttal evidence which had been cross-examined upon against an untested report. I see nothing in the section which indicates an intention to abrogate in this respect the general rule that no material is to be used against a person unless he has had the opportunity of testing it by cross-examination.”
There is no reason to take a different approach to s 23 CLSA (R v O’Shea Unreported Judgment of the Court of Criminal Appeal, No S6288 delivered 13 August 1997). Whether the defendant cooperates with the doctors or not, the defendant has the right to cross examine the doctors as to the facts and opinions recorded in their respective reports.
Conclusions
I would answer the questions in the Case Stated as follows:
(1)    Yes, in the case of both Dr Raeside and Dr Nambiar.
(2)    This question does not arise.
(3)    Yes.

SULAN J I have read the judgment of Bleby J. The background to this matter has been recited in his judgment. Section 23(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) requires a medical practitioner who is conducting an inquiry pursuant to sub-section (3) to carry out an “independent personal examination of the defendant”. A question arises whether the section requires a face-to-face meeting between the medical practitioner and the defendant.
The history of the legislation is referred to in the judgment of Bleby J. I observe that s 7(1) of the Criminal Law Amendment Act 1917 (SA) referred to an inquiry “which shall be made by personal examination of such person by the said practitioners themselves” (emphasis added). Similar words were used in s 77(1) of the Criminal Law Consolidation Act 1935 (SA) which amended the 1917 Act. That section was amended in 1940 and s 77A was inserted. The amending Act stated: “the medical practitioners shall conduct the inquiry by personal examination of the offender”. The words “by the said practitioners themselves” were omitted. Section 77A of the 1940 Act enabled a medical practitioner to conduct the inquiry by reference to the depositions and such other records relating to the defendant as the medical practitioner thought necessary. Section 77A of the Criminal Law Consolidation Act was replaced in 1988 by s 23 of the Act. The Act did not require the medical practitioners to conduct a personal examination of the person by themselves.
I agree with Bleby J that personal examination in s 23(4)(a) refers to the nature of the examination rather than to the person who carries it out. The requirement that the inquiry be carried out by an independent personal examination requires the medical practitioner to conduct the inquiry and arrive at the opinion independently.
As I have indicated the question that follows is whether an independent personal examination of the defendant requires there to be a face-to-face meeting between the medical practitioner and the defendant. ‘Examination’ is defined in the Oxford English Dictionary (2nd ed., Vol. V, 1989 at 487) as including “the action or process of searching or inquiring into”. I agree with the observations of Bleby J that in forming an opinion about a person’s capability of controlling his or her sexual instincts it would usually be expected that the medical practitioner would rely upon his or her observations of the examinee. However, it does not follow that a face-to-face interview or a physical encounter with the defendant is mandatory.
In my view, there is nothing in the words of s 23(4)(a) of the Act that requires a physical face-to-face encounter between the medical practitioner and the defendant. Further, there is nothing in the section which requires that the medical practitioner make any physical observation of the examinee. The purpose of the legislation is to ensure that the person who is incapable of controlling their sexual instincts can be detained so that the public can be protected. In that regard, I agree with the observations of Bleby J. However, if an examination required a face-to-face meeting between the medical practitioner and the defendant, then the purpose for which the legislation was enacted could easily be frustrated by a defendant refusing to meet or communicate with the medical practitioner. Further, if the legislation envisaged as a requirement that there be some communication and contact between the medical practitioner and the defendant, then the question arises as to the extent of such communication and contact. If a defendant refused to answer most of the medical practitioner’s questions, it seems to me that the purpose of the legislation could be frustrated by such conduct.
It may be that a medical practitioner may conclude that he or she cannot form an opinion without a face-to-face meeting with the defendant. On the other hand, there may be reasons why a medical practitioner may conclude that it is unnecessary to personally meet a defendant before arriving at an opinion about the defendant’s capability of controlling his or her sexual instincts. In this case, there was a great deal of material available (such as lengthy medical histories of the defendant, the observation of the defendant by witnesses and others, and a record of statements made by the defendant at the time of the offending and after his apprehension), all of which the medical practitioner can have regard and from which the medical practitioner may form an opinion and report about the defendant’s medical condition. So long as the examination is of the defendant and the independent opinion of the medical practitioner relates to the defendant personally, then that, in my view, is sufficient to comply with the requirements of s 23(4)(a) of the Act.
In the preparation of his report, Dr Raeside read various reports including psychologists and psychiatric reports prepared in 1994 and 1997. He also read transcripts of previous court proceedings, as well as statements of witnesses and police reports relevant to the defendant’s offending. Dr Raeside had prior contact with the defendant several years before. He was able to form an opinion, despite the fact that he was unable to interview the defendant. In my view, the inquiry that Dr Raeside conducted did involve an independent examination personal to the defendant. Although Dr Raeside did see and speak to the defendant who refused to answer any of his questions, I conclude that it was unnecessary for him to have met the defendant or to have spoken to him before reporting to the Court. Dr Raeside arrived at his opinion by relying upon reports and other material of past examinations of the defendant, as well as the material relating to the defendant’s conduct in this case. In arriving at his opinion, Dr Raeside does not appear to rely on the contact he had with the defendant when the defendant refused to answer questions.
In his report dated 23 April 2003, Dr Nambiar states that on two occasions he attempted to assess the defendant. The defendant refused to speak to him. Dr Nambiar reviewed the defendant’s medical files, reports prepared by psychiatrists, pre-sentence reports and sentencing remarks all made on previous occasions. Although it is not clear whether Dr Nambiar saw or spoke to the defendant, I conclude that it was unnecessary for him to have done so. In my view the inquiry that Dr Nambiar conducted did involve an independent examination personal to the defendant.
As to question (3), I agree with the reasons of Bleby J, and I have nothing to add.
I would answer the questions:
(1)    Yes, in the case of both Dr Raeside and Dr Nambiar.
(2)    This question does not arise.
(3)    Yes.

[2003] SASC 321

16 September 2003