R v Waghorn

[1992] QCA 382

IN THE COURT OF APPEAL [1992] QCA 382

SUPREME COURT OF QUEENSLAND

C.A. 259 of 1992

T H E Q U E E N

v.

SHANE CHARLES WAGHORN

(Applicant)

JUDGMENT OF PINCUS J.A.

Delivered the Ninth day of November 1992

This is an application for leave to appeal against sentence. The applicant was on 5 June 1992 convicted in the District Court on four counts; two of those were unlawful and

indecent assault, one attempted rape and, last, deprivation of

personal liberty. In respect of the first three offences, the

applicant was sentenced to seven years' imprisonment and, as to the deprivation of liberty conviction, the sentence was eighteen

months. The judge also made the following order:

"I declare that Shane Charles Waghorn is incapable of exercising proper control over his sexual instincts and I direct that he be detained in an institution at Her Majesty's pleasure".

It is the declaration and direction just quoted which is the subject of the application for leave to appeal. It was submitted by Mr. S. Herbert for the applicant, and appears to me to be correct, that the declaration and direction constitute an

order made with reference to the person of the applicant and therefore a "sentence" within the definition in s.668 of the

Criminal Code.

It is necessary to explain the circumstances of the offence only briefly, for the argument on behalf of the applicant was simply that the judge had no power to make the declaration and give the direction because he had not made a finding which the

relevant statute requires as a condition of doing so. It was not contended that the declaration and direction were otherwise open to challenge and, in particular, it was not contended that there was an improper exercise of discretion.

The applicant, who had previously committed serious
offences of a somewhat similar kind, seized a 10 year old girl

in a street in Emerald and, with some difficulty, put her in the

boot of his vehicle and drove off. The vehicle was located some

16 km away. The applicant had removed the girl from the boot,

tied her hands, removed clothing and interfered with her

sexually. From this and other evidence, it appears that the applicant is a dangerous person, so far as young girls are concerned.

The applicant pleaded guilty to the four charges in the

District Court at Rockhampton on 5 June 1992. After receiving

evidence and submissions, the judge decided to give a direction under s.18(1)(a) of the Criminal Law Amendment Act 1945, which reads as follows:

"In any case where a person has been found guilty of an offence of a sexual nature committed upon or in relation to a child under the age of sixteen years:-

(a)If such person was found so guilty on indictment, the judge presiding at the trial of such person for that offence may at his discretion direct that two or more legally qualified medical practitioners named by the judge (of whom one shall be a person specially qualified in psychiatry where the judge is of opinion that the services of such a person are reasonably available), inquire as to the mental condition of the offender, and in particular whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts; or ...".

The direction the judge gave was to two medical

practitioners, Dr. C.J. Alroe, a psychiatrist, and a Dr. Cave.

Subsequently the judge made a further order substituting a Dr.
Whitchurch for Dr. Cave, on the ground of Dr. Cave's absence.

On 21 August 1992, reports from Drs. Alroe and Whitchurch were tendered and marked as exhibits before his Honour and each of them gave oral evidence and was cross-examined. In addition, a Dr. W.J. Walsh, a psychiatrist who had been engaged on behalf of the applicant and had produced a report, gave oral evidence and was cross-examined.

Dr. Alroe's report dated 6 July 1992 referred to the

material which was made available to him and the results of his
examination of the applicant and concluded:

"In reference to the relevant section of the Criminal Law Amendment Act I believe that he is incapable of exercising proper control over his sexual instincts and that incapacity is not able to be cured by medical science at present".

Dr. Walsh referred to s.18 of the Act and expressed the opinion that it did not apply, in substance on the ground that the applicant was able to decide whether or not to exercise

control despite "his claimed impulsive behaviour". Dr.

Whitchurch's opinion was to the same effect as Dr. Alroe's.

The part of s.18 to which the doctors referred is

sub-s.(3)(a), which reads as follows:

"If the medical practitioners report to the judge that the offender is incapable of exercising proper control over his sexual instincts the judge may, either in addition to or in lieu of imposing any other sentence where the offender was convicted on indictment, or in addition to the punishment, if any, imposed or to be imposed by the court of petty sessions where the offender was summarily convicted, declare that the offender is so incapable and direct that he be detained in an institution during His Majesty's pleasure:

Provided that the offender shall be entitled to cross-examine such medical practitioners in relation to and to call evidence in rebuttal of such report, and no such order shall be made unless the judge shall consider the matters reported to be proved".

After discussing the statute and the doctors' opinions, the

judge remarked:

"Under cross-examination, both Dr Alroe and Dr Walsh held to their opinions. I must decide, or it is my task to decide on all the evidence whether I am satisfied the accused man is incapable of exercising proper control over his sexual instincts.

I do not think it is necessary to resolve the difference of opinion between the two psychiatrists. The phrase used in the Criminal Law Amendment Act is a composite one. It is whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts. Finding that he was so incapable requires more than simply an incident or even incidents of sexual misconduct, deviance or offences, although repeat instances of such criminal behaviour, may justify such a finding.

The making of such a finding of fact, if it is to be made, involves a consideration of facts surrounding the offences and past conduct, whatever the aetiology or casual mechanism of the conduct. I am satisfied on all the evidence that his mental condition is such that he is incapable of exercising proper control over his sexual instincts".

The third sentence of this passage beginning "I do not

think ..." was submitted to be difficult to reconcile with the

requirements of s.18(3)(a). Mr. Herbert contended that since the statute requires that "no such order shall be made unless

the judge shall consider the matters reported to be proved", it was essential that the judge decide between the conflicting psychiatric opinions. If he found himself unable to do so,

then, he could not, according to the argument on behalf of the

applicant, "consider the matters reported" by Drs. Alroe and Whitchurch to be proved; therefore the making of the order was

directly prohibited by the statute.

Although the point was not discussed at the hearing before us, I have found the judge's dismissive reference to the "causal mechanism of the conduct" puzzling. As Mr. Herbert pointed out, the fact that an applicant has committed a number of sexual

offences shows an inclination to do so, but not necessarily a lack of capacity to exercise proper control. If, as Dr. Walsh

said, the applicant "chooses on occasions not to exercise control in spite of his claimed impulsive behaviour", then that explanation of the causal mechanism of the applicant's offences is consistent with the existence of capacity to exercise proper

control.

As I understand the judge's reasoning which followed the
third sentence of the passage quoted, his Honour proceeded to a

consideration of whether he was himself, on the whole of the evidence, satisfied of the matter the statute referred to, independently of the doctors' opinions.

One difficulty about that line of reasoning is that, logically, it involved doing precisely that which the judge said was unnecessary, namely resolving the difference of opinion between the two psychiatrists. Mr. Byrne suggested for the

Crown that perhaps the reference to resolving the difference of

opinion should not be read literally, but should be the subject of some implicit emendation; I do not accept that, as the sentence seems to me plain enough.

An argument also advanced on behalf of the respondent was to the effect that the requirement that the judge consider "the matters reported to be proved" could be satisfied, even if the relevant finding did not refer to or rely upon the reports. If that is correct, then the statute can be complied with if the

judge rejects the psychiatric reports as unsoundly based, but

forms an opinion adverse to the prisoner, on the foundation of

other facts proved before him. I find it difficult to accept that the statute intended to authorise an approach of that kind.

In construing such a statute, one should lean towards strictness, in the sense that conditions it attaches to the court's power to make an order for indeterminate detention should be read in favour of the prisoner. The statute affects the citizen's liberty in an important way, as it makes continued

imprisonment entirely dependent on the will of the executive

government. The natural bearing of the expression "consider the

matters reported to be proved", in its context, is that the judge accepts the opinions of the doctors who have reported that

the offender is incapable of exercising proper control over his

sexual instincts. In deciding whether or not to accept those opinions, the judge is entitled to have regard to the whole of the evidence before him.

In the present case, what the judge had to do, to justify
the order he made, was to accept the conclusions of Drs. Alroe

and Whitchurch and that necessarily involved rejecting Dr. Walsh's opinion. The course his Honour took, which appears to have been to put the doctors' views aside and form his own

conclusion does not, in my opinion, comply with the requirement that the judge consider "the matters reported to be proved". Mr. Byrne argued, as I understood him, that we should review the

evidence ourselves and uphold the judge's conclusion. It appears to me that to do so would not be a sound course; the question is not whether the judge could have done that which the statute contemplates, but whether he did it.

We were asked by Mr. Herbert to set the matter down for

further hearing if the applicant's attack upon the s.18 order

succeeded. The Crown asked the Court, in that event, to augment the other part of the sentence to 14 years' imprisonment, but

that application has yet to be argued.

I would therefore grant the application for leave to appeal against sentence, set aside the declaration that the applicant is incapable of exercising proper control over his sexual

instincts and the direction that he be detained in an

institution at Her Majesty's pleasure and adjourn further

hearing of the application to a date to be fixed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 259 of 1992

Before the Court of Appeal

Mr. Justice McPherson

Mr. Justice Pincus

Justice White

T H E Q U E E N

v.

SHANE CHARLES WAGHORN

(Applicant)

JUDGMENT OF PINCUS J.A.

Delivered the Ninth day of November 1992

MINUTE OF ORDER:  1.The appplication for leave to appeal

against sentence is granted.

2.The declaration that the applicant is incapable of exercising proper control over his sexual instincts and the direction that he be detained in an institution at Her Majesty's pleasure be set aside.

3.The further hearing of the application be

adjourned to a date to be fixed.

CATCHWORDS:

MENTAL HEALTH - CRIMINAL LAW - SENTENCING - Appeal from declaration that appellant incapable of exercising proper control over his sexual instincts - whether trial judge erred in concluding it unnecessary to resolve conflicting views of psychiatrists - whether matters in ss.(3)(a) therefore not proved - The Criminal Law Amendment Act 1945 s.18(1), (2), (3).

Counsel:  M. Byrne, for the Crown

S. Herbert, for the Applicant

Solicitors:	The Director of Prosecutions for the Crown The Legal Aid Office for the Applicant
Hearing Date(s):	20 October 1992

REASONS FOR JUDGMENT - WHITE J.

Delivered the Ninth day of November, 1992

I agree with the reasons for judgment of McPherson J.A. and the orders proposed by Pincus J.A.