R v Laurence John Edward O'Shea No. Scgrg-97-65 Judgment No. 6288 Number of Pages 16 Criminal Law

[1997] SASC 6288

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, MATHESON AND NYLAND JJ

Criminal law - jurisdiction, practice and procedure - judgment and punishment - Sentences of indeterminate duration - Sex offenders incapable of controlling sexual instincts - appliction for release on licence - application for order discharging order of detention - operation of provisions - nature of discretion - test to be applied - distinction between test for release on licence and discharge - procedural fairness - whether right to cross-examine on material presented to court adverse to applicant - nature of onus - whether judge failed to distinguish between incapacity and unwillingness to control sexual instinct - whether sufficient evidence to support conclusion of judge - appeal dismissed. Criminal Law Consolidation Act, 1935 s77a; Criminal Law(Sentencing) Act, 1988s23 and s24, referred to. The Queen v O'Shea (1982) 31 SASR 129; R v Hodge (1987) 48 SASR 91; The Queen v Kiltie (1986) 41 SASR 52, considered.

ADELAIDE, 18 June and 4 July 1997 (hearing), 13 August 1997 (decision)

#DATE 13:8:1997

#ADD 4:9:1997

Appearances :

Counsel for appellant: Mr G Mancini

Solicitors for appellant: Mancini & Co

Counsel for respondent: Ms W Abraham

Solicitors for respondent: DPP (SA)

Order: appeal dismissed.

DOYLE CJ

Introduction

In 1977 a judge of this Court declared that Mr O'Shea was incapable of exercising proper control over his sexual instincts. Instead of imposing any sentence upon him for the offences for which he was before the court, the judge directed that Mr O'Shea be detained at an Institution during Her Majesty's pleasure.

It suffices to say that O'Shea had pleaded guilty before the judge to two charges of indecently assaulting children, and asked for four further offences to be taken into consideration. He had previous convictions for similar offences. The circumstances of the making of the declaration can be found in The Queen v O'Shea (1982) 31 SASR 129.

The declaration was made pursuant to s77a of the Criminal Law ConsolidationAct, 1935. That provision has now been repealed.

O'Shea was released on licence in 1980, 1983, 1987 and 1994. On each occasion, after he had been on licence for some time, the Parole Board revoked the licence because it found that O'Shea had breached his licence conditions. The longest period of time spent on licence was in excess of three years. Some of the breaches of condition involved conduct capable of supporting the conclusion that O'Shea was involved with children or was intending to be so involved. I refer here to an involvement of a kind not appropriate for a person with his background. However, O'Shea has no convictions for sexual offences involving children since 1977.

Under s77a O'Shea's release depended upon the decision by the Governor in Council. A refusal by the Governor in Council to act upon a recommendation by the Parole Board for release on licence, was the subject of a legal challenge by O'Shea in proceedings ultimately decided by the High Court: see South Australia v O'Shea (1987) 163 CLR 378.

O'Shea was last returned to custody in early 1996. The Parole Board ordered that he be returned to custody because of breaches of condition which, together with other reports provided to the Board, "... suggested that he continued to present an ongoing serious concern in terms of his potential risk for re-offence ..."

By application dated 15 April 1996 O'Shea applied to this Court for an order under s24(1) of the Criminal Law (Sentencing) Act, 1988 ("the Sentencing Act") that he be released on licence. By an amended application O'Shea also sought an order pursuant to s23(11) of the Sentencing Act that the order for detention until further order be discharged.

The judge refused to make either order. O'Shea now appeals against that refusal.

O'Shea is at liberty to make a fresh application to this Court under either section. Although his counsel argued that O'Shea was entitled to have the order discharged, he more or less acknowledged that if the judge had erred the matter would have to be re-heard. Nevertheless, counsel for O'Shea argued that in a number of respects the judge had erred, and the matters that he raised are likely to arise if a fresh application is made.

Some of the submissions advanced by counsel for O'Shea appear to amount to an invitation to provide comprehensive guidelines for dealing with applications under the relevant sections. I propose to confine myself to the points that arose on appeal.

The Statutory Provisions

As to the repealed s77a, it suffices to say that it provided for an order for detention at pleasure, if it was proved that the offender was "incapable of exercising proper control over his sexual instincts." Release upon licence, and a final release, were matters for the Governor in Council.

Although it was argued otherwise before the judge below, counsel for O'Shea now acknowledges that s23 and s24 of the Sentencing Act govern this case.

Section 23 deals with the detention of offenders incapable of controlling their sexual instincts. It gives the court power to direct that two medical practitioners shall "...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"; s23(3). The central provision is subsection (5) which provides as follows:

"(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."

The section then goes on to provide for six monthly reviews of "the progress and circumstances" of the person subject to the order. In the case of an adult, the review is conducted by the Parole Board. (A different procedure applies in this and other respects to persons dealt with under the YoungOffenders Act, 1993.) The results of the review are to be reported to the Minister for Correctional Services. Provision is made for the discharge of an order for detention. Subsections (11) and (12) provide as follows:

"(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."

Release on licence is dealt with by s24. If the court authorises release on licence, it is the function of the Parole Board, in the case of an adult, to determine the conditions to which the release is subject. The Parole Board has power to vary or revoke conditions that it has fixed. It has power to determine whether a person has contravened a condition of a licence, and can cancel the release of a person on licence. It has power to conduct a hearing for the purpose of deciding whether to vary or revoke a condition or whether to cancel the release of a person on licence. It is not necessary to set out the provisions that I have summarised. The key provisions of s24 are the following:

"(1) The Supreme Court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.

(10) Where a person who has been released on licence commits an offence while subject to that licence and is sentenced to imprisonment for the offence, the release on licence is, by virtue of this subsection, cancelled.

(11) Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Director of Public Prosecutions, orders otherwise, be taken to have been discharged on the expiration of that period."

Section 24 does not specify any criteria by reference to which the court is to decide an application under subsection (1).

Section 25 enables the court to obtain reports in relation to the exercise of its powers under s23 and 24. It provides:

"25(1) A court may, for the purpose of obtaining assistance in making a determination under this Division, require the Parole Board, the Training Centre Review Board or any other body or person to furnish the court with a report on any matter.

(2) A copy of any report furnished to a court under subsection (1) must be given to each party to the proceedings or to counsel for those parties."

Section 26 provides that the Director of Public Prosecutions, and the person to whom an application under the division relates, are parties to the application.

The Issue Before the Court

The matter began as an application to the court to authorise the release of O'Shea on licence under s24(1). By amendment, an application was included for an order discharging the order for detention under s23(12).

The judge below took the view that the issue under each provision was pretty much the same. He said:

"I am not sure that, in de facto terms, the test to be applied under the two sections is significantly different. What is involved, in both situations, is essentially a balancing exercise, in which what is best in the interests of the applicant must be weighed against the risk to the community if the applicant is released. Clearly any substantial risk to the community of recidivist behaviour on the part of the applicant must be a matter of great moment.

In my opinion, on making an application under either section, the applicant plainly bears an onus of establishing that, notwithstanding he is subject to a period of indeterminate detention, the circumstances are such that it is proper that he be released into the community; and that there is no substantial risk of recidivist behaviour if he is so released."

The judge dealt there with the issue of onus as well.

I deal first with the application under s23.

That provision contemplates a person who has been detained because the person is incapable of controlling his or her sexual instincts. During argument I thought that the court could discharge an order only if satisfied that O'Shea was capable of controlling his sexual instincts. It would be sensible to provide that the regime of indefinite detention would terminate only if the incapacity, which was the basis for the regime, had come to an end. However, Parliament has not said that in terms. It seems unlikely that it would have left something so fundamental to be implied. On reflection, I came to the conclusion that it was unlikely that Parliament would have intended that an order should be discharged only if the person was capable of controlling his or her sexual instincts and the court forms the opinion referred to in subsection (12)(b).

I have come to the conclusion that the requirement for the discharge of an order for detention is simply that specified in subsection (12). That is, that the court is satisfied that the order should be discharged, after taking into account the interests of the person and of the community. Clearly enough, the court would consider the risk of further offending by the person. The greater the risk, the less likely the court would be to discharge the order. If the court is in fact satisfied that the person is capable of controlling his or her sexual instincts, one would expect the order to be discharged as of course. But, in my opinion, it is not essential that the court be so satisfied before it can discharge the order. Even though the court is not affirmatively satisfied that the person is capable of controlling his or her sexual instincts, the court might conclude that the risk of further offending was sufficiently slight for it, having considered the interests of the person and of the community, to discharge the order for detention.

In so concluding I proceed on the premise that the purpose of the making of an order for detention is not punitive but preventive. Prevention is what underlies the section, not punishment.

It follows, in my opinion, that s23(12) does not mean that the order can be discharged only if the court is satisfied that there is no risk of the person offending. It goes without saying that the community accepts the presence within it of persons who may well offend against the criminal laws that regulate the community. Offenders who have completed their term of imprisonment but are likely to offend again, are nevertheless released. Detention, unless and until there is no risk of a person further offending, would be extremely harsh treatment. In my opinion it would be necessary for the section to be expressed in much clearer terms, before the court should interpret it as meaning that.

It follows, that while the capacity to control sexual instincts is a very important issue under subsection (12), and proof of that capacity would ordinarily lead to an order for discharge, that is not the issue under subsection (12).

I am fortified in reaching this conclusion by the terms of s24(11). A continuous period of three years on licence results in the discharge of the order for detention, unless the court orders otherwise. The scheme of the Sentencing Act indicates that a person may be released on licence, even though the court is not satisfied that that person is capable of controlling his or her sexual instincts. The automatic discharge of the detention order, after the expiry of three years, unless the court orders otherwise, indicates that Parliament was not concerned to maintain an order for discharge until capacity to control sexual instincts was established.

The breadth of the discretion vested in the court makes it impossible to specify, in advance, criteria for the discharge of an order. I do not consider that one can usefully say anything more than I have said.

I consider that the approach to s23(12), taken by the judge below, was correct. The passage that I have set out summarises the central considerations under subsection (12).

The judge below thought that the test under s24(1) was much the same. To that proposition I can give only heavily qualified agreement.

To begin with, as the judge noted, s24(1) specifies no criteria at all for a release on licence. A release on licence is quite different from the discharge of an order for detention. Of its nature, a release on licence is a temporary measure which can be terminated by the Parole Board or automatically upon the person being sentenced to imprisonment for an offence. A release on licence will be subject to conditions that will enable the Parole Board to exercise significant control over the activities of the person released, and enable the Parole Board to provide for supervision of the person. Indeed, no less than twenty-six conditions were specified when O'Shea was released on licence in 1994. All in all, a release on licence can be regarded as a means to test the suitability of a person for release, whereas the discharge of an order puts the person in question beyond the control of the Parole Board. It sets the person free unconditionally.

That being so, release on licence may be appropriate although an order for discharge is not appropriate. Release on licence will be considered much more readily. I agree, with respect, with his Honour's view that under s24(1) one must consider the interests of the community and the risk of the person offending. The matters that are relevant under s23(12) are equally relevant under s24(1). But the weight given to the risk of offending will, in my opinion, be significantly less. In addition, the ability to impose conditions, to exercise controls and to enforce supervision, must significantly affect the exercise of the relevant discretion.

In short, while the exercise of the discretion under s24(1) involves consideration of matters that must be considered under s23(12), and each provision confers a wide discretion on the court, in my opinion release on licence involves the consideration of matters that do not arise under s23(12).

It is again the case that the breadth of the discretion under s24(1) is such that there is no point in trying to identify the grounds upon which an order might properly be made. I consider that all one can usefully say is that it will be necessary to consider, among other things, the risk of the person concerned offending. But in my opinion there is scope for much more weight to be given to the desirability of testing the person's fitness for, and preparing the person for, a return to the community, by allowing a period of controlled and supervised freedom.

Counsel for O'Shea argued that the judge erred in his approach to the statutory provisions. I have already indicated that in my opinion the approach to release on licence will be significantly different from the approach to the discharge of an order for detention. I will return later to the correctness of the judge's decision.

Counsel for O'Shea put a number of different submissions. One was that unless the DPP established that O'Shea was incapable of controlling his sexual instincts, O'Shea was entitled to an order for discharge. Another submission was that there was no onus of proof on either party. The submission was that once an application was made to the court, the court must initiate an inquiry. If the court found that O'Shea was not incapable of controlling his sexual instincts, or alternatively did not find that he was in fact incapable, then the State had no further interest in the detention of O'Shea, and an order for discharge must follow.

I do not accept those submissions.

I have already expressed my view of the approach to be taken. I merely add, in relation to these submissions, the following. The court is dealing with a person whose indefinite detention has been ordered on the basis of a proved incapacity to control sexual instincts. Before discharging the order for detention, the court must be of the opinion that it should do so. The starting point is that it is dealing with a person who is subject to a regime of indefinite detention. In my opinion, the requirement to be satisfied that the order should be discharged implies a need on the part of the applicant to establish circumstances which make it appropriate to do so. It may not be appropriate for the court to assume that the person is in fact still incapable of controlling his or her sexual instincts. I do not have to decide that point now. But it is proper for the court to require matters to be proved that make it appropriate to order the discharge of a person who has in the past been found to be incapable of exercising the relevant control.

The varying ways in which an application could be presented make it impossible to be definitive in this area. But I do not accept the idea that the failure of the DPP to establish affirmatively that the person is incapable of exercising the relevant control necessarily means that the order must be discharged. Everything will depend upon the basis upon which the discharge application is conducted.

I accept the submission by counsel for O'Shea that proceedings under s23 are not simply a contest between opposing parties. Even if the DPP had not opposed O'Shea's application, there could be no question of the court making a discharge order, or even an order for release on licence, simply because there was no opposition. Nor could such an order be made by consent. To my mind, this obvious point illustrates the fact that the court must be satisfied that it is proper to make an order, and that the absence of proof of continuing incapacity does not entitle the person concerned to an order.

In my opinion the judge was correct in saying that the onus rested upon O'Shea to satisfy the court of matters which made it appropriate to make an order under either section. The significance of the court not being satisfied that there is a continuing incapacity to control sexual instincts will depend upon the manner in which the application is presented, and the basis upon which it is opposed, assuming that it is opposed. Where issue has been joined upon that very matter, the inability of the DPP to satisfy the court of continuing incapacity might be highly significant. In a case differently presented, it might be of very little significance.

In my opinion the position is much the same in relation to release on licence. The court must be satisfied of matters that make it appropriate to order a release on licence. As I have already indicated, the question of incapacity to control sexual instincts is of less significance on such an application.

Procedural Fairness

The judge had a considerable amount of material before him.

He had written reports from two psychiatrists, Dr Clayer and Professor Goldney. These reports were provided pursuant to s23(12)(a) of the Sentencing Act. In exercise of his powers under s25 of the Act, the judge directed the Parole Board to provide a report dealing with the occasions on which O'Shea had been released on licence, the reasons for the revocation of those licences, the findings of the Board when the licences were revoked, and giving the Board's assessment as to the suitability of O'Shea for a further release on licence. The Board was also asked to report on any relevant material provided to it, including material provided to it by the Sexual Offenders Treatment and Assessment Program ("SOTAP"). The Board provided a detailed report, to which it annexed copies of reports to the Board from others, including SOTAP and the Police. This material was generally adverse to O'Shea. The Board also provided copies of letters apparently written by O'Shea, on the basis of which the Parole Board had formed adverse conclusions. In the course of the hearing various other reports to the Board, and extracts from the Board's records, came to be tendered before his Honour. The material from the Board related mainly to the question of release on licence under s24.

Before the judge below counsel for O'Shea appears to have been content to rely upon this material, at least in support of the application for release on licence: see T3.04. He also relied upon the reports from the psychiatrists for the same purpose: T39.12. He did not ask that they be made available for cross-examination: T44.28.

But on appeal counsel argued that his Honour was not entitled to use this material, at least adversely to O'Shea. I have difficulty understanding the submission made to us, bearing in mind the approach taken at first instance. The submission appeared to be that once counsel had identified matters in the material referred to that were in dispute, the judge was not entitled to rely upon those matters to form an adverse conclusion, even though that submission had not been made to his Honour.

I reject the submission by counsel for O'Shea that his Honour was not entitled to act upon the material before him. I consider that the case was conducted before his Honour on the basis that he was entitled to have regard to all the material before him, even though it was not proved by oral evidence.

Counsel for O'Shea further argued that his Honour should have preferred the sworn evidence of Ms Brown, a psychologist who gave evidence in support of O'Shea's case. But, in my opinion, his Honour was not obliged to do so. As the case was conducted on the basis that he was entitled to have regard to all material before him, one cannot say that he was obliged to give preference to evidence given orally before him. In any event, it is clear from his Honour's reasons that he was not prepared to accept some of the opinions expressed by Ms Brown. In some respects his Honour was not satisfied that her opinions were based upon an appreciation of the true facts about O'Shea's behaviour. Some of her opinions were not persuasive. In my opinion, his Honour was entitled to prefer the views of Dr Clayer and Professor Goldney to those of Ms Brown.

In view of the submission made to us it is appropriate to express some views about procedure to be followed in applications under the relevant provisions.

It will often be the case that, as here, there is a history of applications to the Parole Board, hearings by the Board, and consideration by the Board of reports and other material submitted to it. It is also likely that there will be decisions which have been made in the past by the Board about conditions and compliance with conditions, which will be relevant matters to be taken into account.

Difficulties will arise when that history includes facts that the person in question disputes, and previously expressed opinions that the person contests before the court. It is one thing for the court to be informed of what the Board has done, and why. It is another thing for the court to treat facts and opinions relied upon by the Board as evidence before the court, to be relied upon adversely to the person in question.

It is not possible in this case to resolve all the difficulties that may arise. However, in my opinion the court cannot act on facts and opinions adverse to the applicant for release, without allowing the applicant to cross-examine the witnesses to the relevant facts and the persons expressing the relevant opinions if the applicant wishes to do so. In my opinion counsel for O'Shea was entitled, if he wished to do so, to cross-examination on the material provided to the court pursuant to s23(12) and s25 of the Sentencing Act, before it was used adversely to his client. I do not consider that the fact that the court has power to require reports to be provided to it displaces the ordinary principle of our legal system, that a person is entitled to challenge material by way of cross-examination before it is used adversely to the person. I would not conclude that Parliament had displaced that right, when a person's liberty is at stake, unless Parliament makes its intention in that respect quite clear. In this respect I agree with what was said by King CJ in R v Hodge (1987) 48 SASR 91 at 95 and by Johnston J at 102. In saying this I do not mean to say that the court is not entitled to receive and consider reports provided to it under that statutory provisions, unless everything in those reports is proved by oral evidence. I do no more than say that the applicant is entitled to cross-examine on material before it is used adversely to the applicant. In the present case, no such request was made and, in my opinion, the case was conducted on the basis that his Honour was entitled to have regard to all material before him.

Difficulties are likely to arise when, as happened here, the reports to the court refer to events which have occurred over a number of years. The applicant may want to contest matters that happened in the past, and opinions expressed in the past, even when the Parole Board has already considered those matters and come to conclusions on them. The inconvenience of having to go through such a procedure is obvious.

At the outset, it will be necessary to distinguish between proving what the Parole Board has done and the reason or reasons for its decisions, and the use of facts and opinions upon which the Parole Board acted as matters to be taken into account by the court adversely to the applicant. The decisions of the Parole Board and its reasons would, I anticipate, ordinarily be proved by the production of its records. The right to cross-examination, to which I refer,

arises in relation to the reliance by the court upon facts and opinions communicated to the Board if it is sought to use them before the court in a manner adverse to the applicant.

While the potential inconvenience of having to revisit things that happened in the past, and opinions expressed in the past, is manifest, so is the potential injustice of the court acting upon material relating to past events and opinions expressed at earlier times without giving the applicant an opportunity to cross-examine. Such material might be highly adverse to the applicant. In the present case, for example, some of the material provided by the Board to the court indicated a longstanding pattern of deceptive conduct and untrustworthiness on the part of O'Shea. That material was highly prejudicial to him, and undoubtedly played a significant part in the judge's decision to reject his applications. Parliament has not said that rights usually available to an applicant are not to be available, and so I conclude that they must be accorded.

In applications under the relevant provisions the court is not limited to such material as the parties may choose to present. In my opinion the statutory provisions make it clear that the court is entitled to seek material that it considers to be of assistance, even if the parties do not propose to put that material before the court. The court is likely, therefore, to have before it material obtained by the court itself, and material put forward by the parties. In my opinion it is incumbent upon counsel to indicate, at an early stage, to what extent material provided to the court at its own request or by the other party is to be contested. In relation to material obtained by the court it is not the case, in my opinion, that the material cannot be received and considered by the court if it is objected to. In my opinion the true position is that the court is entitled, indeed obliged under s23(12)(a), to receive and consider the material, but that there is a right to cross-examine on the material before it is used adversely to the applicant.

It will be important that the parties take a commonsense approach to these proceedings, to avoid them becoming bogged down in evidentiary difficulties. It will also be necessary for the parties to indicate clearly the approach that they submit the court should take in relation to particular items of evidence.

There is one other procedural matter to which I should refer. In his reasons the judge below refers to the tender of an affidavit by O'Shea in support of his application. Apparently the affidavit sought to deal with some of the facts referred to in other material before his Honour, and to contest those facts. Counsel argued before his Honour that he was entitled to tender an affidavit from his client then, moreover, that O'Shea could not be required to submit to cross-examination on the affidavit.

In my opinion the judge was right in concluding that in these proceedings O'Shea had no right to insist that the evidence that he wished to give be given by way of affidavit, and had no right to insist that the affidavit be received without him being subject to cross-examination on it. I also consider that the judge was right in drawing an adverse inference from O'Shea's refusal to give any evidence before the judge in answer to the adverse material in the reports before the judge. While it was not incumbent upon O'Shea to give evidence in support of his application, to my mind it would be difficult for a contested application to succeed if the applicant is unwilling to give evidence.

Under the Sentencing Act O'Shea is at liberty to make a fresh application under either section. We were informed that he has already done so. While I realise that the issues upon which I have touched may well arise on that further application, I do not consider it appropriate to attempt to grapple with them now in any further detail. They will have to be resolved in the particular context in which they arise and, hopefully, aided by commonsense. The fact that, in my opinion, the onus rests upon O'Shea to satisfy the court that it is appropriate to exercise its power under s23(12) or under s24(1), should impose an element of discipline upon the conduct of the proceedings. I have already made it clear that in my opinion O'Shea is not entitled to conduct his application on the basis that, putting it colloquially, the slate is clean and that he is entitled to a favourable order unless matters adverse to him are established. Putting it very briefly, and at the risk of over-simplification, it is for him to establish that although he is subject to an order for indefinite detention, and although the Parole Board has cancelled previous releases on licence, it is now appropriate for an order in his favour to be made. The court is entitled to be informed by the Parole Board of what it has done and why. While O'Shea is entitled to contest facts and opinions relied upon the Board in a manner adverse to him, the starting point is nevertheless that the Board has not seen fit to permit him to remain at liberty. I appreciate that what I have said leaves many potential complications unresolved, but I do not consider that the court can usefully or safely take the matter any further at this stage.

The Judge's Conclusions

Counsel for O'Shea attacked the judge's conclusions. In essence, he argued that the judge failed to distinguish adequately between the approach that should be taken under s23(12) and under s24(1). He argued that the judge should have preferred the oral evidence of Ms Brown to the untested written material provided to him. I have already dealt with that point. He argued that the reports from the psychiatrists did not adequately address the question of whether, by reason of O'Shea's mental condition, he was incapable of controlling his sexual instincts, and that therefore the judge's rejection of the application for the discharge of the order for detention was erroneous. It was also argued that his Honour was not entitled to act upon some of the material adverse to O'Shea. I have already dealt with that point.

The judge began by saying that the issue was not one of the proper punishment for breaches of licence, but one of whether it was now appropriate for the court to authorise O'Shea's release, and that that involved a question of the risk of him re-offending. In general terms I agree with what his Honour said in that respect. The judge then referred to the repeated breaches by O'Shea of licence conditions in the past. For the reasons that I have already indicated, in my opinion he was entitled to rely upon that material. The judge said that the significance of that conduct was not so much the breaches themselves, as the light which those breaches threw upon O'Shea's mental condition. In my opinion he was entitled to reason that way. He said:

"Such is the intellectual capacity, manipulative conduct and deviousness of the applicant that even the most stringent licence conditions have failed to prevent him from a clandestine resort to strategies designed to circumvent those conditions; and which all have some flavour relating to potential or actual activities with young children."

The judge accepted what he said was a conclusion reached by Dr Clayer, namely:

"...that the mental state of the applicant is such that he lacks the capacity to make rational judgments and decisions about how to act, including how to act sexually."

His final conclusion was as follows:

"It is my conclusion that the applicant has not discharged his onus of demonstrating that it is proper to accede to either of his applications. To do so would be to place the community at unacceptable risk, without resort to community resources to police his conduct which are utterly disproportionate to any likely progress towards rehabilitation."

In essence, this was a finding that the breaches of licence conditions and the nature of those breaches led to a conclusion that O'Shea was very likely to offend if released, that stringent conditions attached to releases on licence in the past had not prevented such conduct, and that it was not practical to supervise O'Shea to the extent that would be necessary to ensure that releasing him into the community did not give rise to an unacceptable risk of further offending.

Immediately before the conclusion just set out, the judge said that O'Shea's conduct was "... indicative of an inability, or unwillingness, to control his impulses ..." He had earlier referred to the difficulty which the psychiatrist had in placing a "specific diagnostic label" on the condition of O'Shea's mind.

In my opinion there was ample evidence before the judge to support the conclusions that he reached. The judge summarised that evidence and I am content to rely upon his summary of it. However, there were some subsidiary points advanced by counsel for O'Shea that should be addressed.

In The Queen v Kiltie (1986) 41 SASR 52 King CJ said, with reference to s77a of the Criminal Law Consolidation Act, that (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."

The other members of the court appear to have agreed with that proposition. He repeated that view in R v Hodge (1987) 48 SASR 91 at 97, in a passage which again appears to have been supported by the other members of the court. In this appeal both parties accepted the applicability of these propositions to s23 of the Sentencing Act. Of course, the cases referred to dealt with the making of what I might call the initial determination of incapacity, as a prelude to the making of an order for indefinite detention. But before us both counsel accepted that, when considering discharging an order for detention, the court was again concerned with O'Shea's mental condition and whether that was such that he was incapable of controlling his sexual instincts. In that sense, what King CJ said was treated as applicable in the present case.

Counsel for O'Shea argued that the judge below had erred because, in a passage set out above, he had referred to an inability or unwillingness to exercise the relevant control, thus confusing, it was argued, the distinction between incapacity and unwillingness. The same and further criticisms were made of the reports submitted by the psychiatrists. Dr Clayer's conclusion was as follows:

"I am forced to conclude, in the light of Mr. O'Shea's continued self-defeating, dyssocial behaviour at a time he was under close scrutiny, and having lost his freedom so frequently before and recently, that as a result of his condition he lacks the capacity to make rational judgements and decisions about how to act, including how to act sexually. Whether or not that places him under the restrictions of Section 23 (12), will, of course, be decided by the Court."

It was said that this report disclosed nothing more than a personality disorder, and not a lack of capacity to control sexual instincts. It was argued that a lack of capacity to make rational judgments was not the same as a lack of capacity to control sexual instincts. In his conclusions, Professor Goldney said in part:

"2. Using the broad legally defined term `mental condition' I consider that Mr. O'Shea has demonstrated that he can not exercise `proper control'. I make this comment without any further exploration of the issue as to whether or not this is his choice or whether he is inevitably led to it by his psychopathology. From the practical point of view the issue is immaterial.

3. One cannot necessarily be dogmatic that Mr. O'Shea would lose `proper control' of his sexual impulses, just as he has lost `proper control' of adhering to the conditions of his release. However, it would be naïve to assert anything other than that if he loses control in the area as documented, there is every likelihood that he would similarly lose control with his other impulses."

In relation to Professor Goldney's report, the point was made that he had declined to express an opinion upon whether O'Shea was incapable of exercising proper control or unwilling to do so. On that basis it was argued that the material before the judge did not support a conclusion that O'Shea was incapable of controlling his sexual instincts, and that the judge's own conclusion was erroneous because it failed to draw the necessary distinction between incapacity and unwillingness.

There is some force in these criticisms. In my opinion, in light of the reports from the psychiatrists, it is questionable whether one could conclude that O'Shea is incapable of controlling his sexual instincts. The reports do not, to my mind, address that question with the precision required for one to reach that conclusion on the basis of the written reports alone. But, as I have already explained, in my opinion it was not necessary for his Honour, to determine the application under s23(12), to make a fresh determination as to O'Shea's capacity to control his sexual instincts. The question was whether, such a determination having been made in the past, it was now appropriate to discharge the order for detention. A failure to satisfy his Honour that there was a continuing incapacity did not mean that the order should be discharged as a matter of course. On the other hand, if his Honour was satisfied that the incapacity no longer existed, one would expect that the order would be discharged. I doubt whether his Honour overlooked the distinction adverted to by King CJ. It is referred to in terms by each of the psychiatrists in parts of their reports that I have not set out. In my opinion, the effect of his Honour's conclusions is that he is not satisfied that O'Shea is capable of controlling his sexual instincts, and so that basis for discharging the order is not made out. Moreover, he has concluded that the risk of further offending is so high that it is not appropriate to discharge the order, even though it has not been established afresh that O'Shea is not capable of controlling his sexual instincts. In my opinion those conclusions were open to him, and in my opinion they are proper bases for declining to discharge the order for detention under all the circumstances.

However, if a fresh application is made I assume that more attention will be given to this precise issue. In my opinion it was unfortunate that his Honour was left to resolve the matter on the basis of reports from psychiatrists that leave one wondering whether more could be said on the central question of incapacity. If there is a fresh application, it seems inevitable that the court will have to be provided with further material on that point. In fairness to O'Shea it is desirable that, if possible, a specific finding be made. However, having regard to the manner in which the case was conducted before him, I do not consider that the judge can be criticised for resolving the matter in the manner in which he did.

Counsel complained further that the reports from the psychiatrists were directed to the question of the discharge of the order for detention, not to the question of release on licence. But, in my opinion, the reports being before his Honour he was entitled to make use of the material in them in relation to each application. There is no suggestion that counsel was unaware that his Honour would do so.

There is the further point, however, that the reports by the psychiatrists do not address the possibility of a release on licence, subject to conditions that might appropriately protect the interests of the community, to the extent that that is a relevant matter. It was argued that the evidence of Ms Brown was directed to the question of release on licence, and that his Honour should have acted upon her evidence. Once again, I do not consider that his Honour overlooked the fact that the application under s24(1) gave rise to different issues. In my opinion his Honour's view was that the risk of re-offending was so high that he was not prepared to contemplate a release on licence, and no doubt he was influenced by the previous experiences of the Parole Board in this respect. That was a conclusion open to his Honour. In short, from his Honour's point of view, the risk of re-offending was so high that there was no point in considering whether the Parole Board might be able to devise conditions that would make release on licence appropriate.

Once again, if there is a fresh application more specific attention can be given to this issue.

In short, my view is that his Honour has not overlooked the difference in the questions to be considered under each of the statutory provisions, and was entitled on the material before him to reach the conclusions that he did. At the same time, in my opinion it would have been preferable if the psychiatrists had been asked to elaborate upon their reports before his Honour, and had been subject to cross-examination. It would have been preferable if there had been oral evidence before his Honour grappling specifically with the possibility of a release on licence. It would have been preferable if matters of fact that O'Shea apparently wishes to challenge had been properly identified and, in one way or another, properly dealt with before his Honour. But it was, in my respectful opinion, largely up to counsel for O'Shea to deal with these matters. His Honour dealt with the matter on the basis upon which it was presented to him by the parties.

Conclusions

In my opinion it follows that the appeal must be dismissed. No procedural unfairness has been shown, his Honour was entitled to have regard to the material to which he had regard, the conclusions that he reached were open to him and, in my opinion, his Honour did not overlook considering the relevant issues.

Despite all that, for reasons that I have indicated in brief, the manner in which the applications were dealt with before his Honour was not completely satisfactory. But the fact that O'Shea is able to proceed with a fresh application enables the unsatisfactory aspects adverted to to be addressed.

I would therefore dismiss the appeal, leaving it to O'Shea to pursue his further applications for discharge of the order for detention and for release on licence.

MATHESON J

I agree that the appeal should be dismissed and I agree with all that Doyle CJ has said in his reasons.

NYLAND J

I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice and I have nothing further to add.