R v Weisser - [2005] SASC 166

Supreme Court of South Australia
(Criminal: Application)
R v WEISSER
Reasons for Decision of The Honourable Justice Debelle (ex tempore)
27 April 2005
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA
Applications for review and discharge of detention order for a prisoner released on licence - interstate prisoner found not guilty of murder by reason of insanity - later transfer to South Australia - whether Criminal Law Consolidation Act applies - applicable provisions of Criminal Law Consolidation Act for prisoners with mental impairment - licence renewed - discharge refused.
Acts Interpretation Act 1915 s 16 (1) (b); Criminal Law Consolidation Act 1935 s 292, s 293; Prisoners (Interstate Transfer) Act 1982 s 27, s 28; Criminal Law Sentencing Act Part 2 Division 3, referred to.
Smith v Calder & Anor [1941] SASR 263; Pullos v Gifford Enterprises Pty Ltd [1980] 2 Qd R 251, applied.
McKenzie v Secretary, Department of Social Security (1989) 18 ALD 1, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE

R v WEISSER
[2005] SASC 166
Criminal

DEBELLE J. (ex tempore) Before the court are two applications. One is for a review of a detention order made in respect of Ms S H Weisser made pursuant to s 293a (17) of the Criminal Law Consolidation Act1935. The second is an application by Ms Weisser pursuant to s 293a (6) for an order discharging the detention order. Section 293a is one of three sections of the Criminal Law Consolidation Act which, before March 1996, prescribed a régime for dealing with offenders who had been found not guilty by reason of insanity or who were unfit to plead by reason of insanity. On 2 March 1996 a different régime established by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 came into operation. It operates in respect of trials commenced after 2 March 1996.
Transfer to South Australia
In 1983 in the Supreme Court of the Northern Territory, Ms Weisser was found not guilty by reason of insanity of the crime of murder on 6 May 1983. She had shot and killed a male acquaintance who had assaulted her. Upon the verdict being returned, the trial judge ordered that Ms Weisser be kept in custody pending the pleasure of the Administrator of the Northern Territory. On 21 January 1985 Ms Weisser was transferred to this State pursuant to the provisions of the Prisoners (Interstate Transfer) Act1982. She was detained in custody in South Australia.
Release on Licence
On 16 October 1986 Ms Weisser was released on licence. On 10 December 1987 the conditions of that licence were varied. It seems that at some later time the licence was revoked but on 22 December 1988 she was again released on licence. On 13 July 1989 the terms of the licence were varied. Sometime thereafter the licence was revoked. She was again released on licence on 21 April 1992. That licence was revoked. She was again released on licence on 25 June 1992. Ms Weisser is still released on that licence. However, that licence has subsequently been varied by this court on two occasions, by Nyland J on 2 July 1987 and by Perry J on 16 December 2002. The orders made by Nyland and Perry JJ were stated to be made pursuant to s 293a of the Criminal Law Consolidation Act. Section 293a (17) provides that the Minister must apply for a review of the licence every three years. On 1 June 2004 the Director of Public Prosecutions, on behalf of the Minister, applied for an order reviewing the order made by Perry J on 16 December 2002.
Section 293a Applies
When the applications came on for hearing I questioned whether s 293a applied and, if it did, whether, by reason of the fact that Ms Weisser had been released on licence, she was still subject to a detention order. Ms Davison and Mr Sykes have assisted in resolving these issues.
The question whether s 293a has any operation in the particular circumstances of Ms Weisser’s detention turns on the meaning and operation of ss 27 and 28 of the Prisoners (Interstate Transfer) Act.
The order made by the trial judge in the Northern Territory was an order for an indeterminate sentence. That expression is defined by s 5 of the Prisoners (Interstate Transfer) Act. When Ms Weisser was transferred to South Australia that order was deemed to have been made by a corresponding court in South Australia and to apply as if made by that court: s 27 of the Prisoners (Interstate Transfer) Act. Section 28 (4) of that Act provides a scheme for prisoners subject to an indeterminate sentence. When Ms Weisser was transferred to South Australia s 28 (4) was in these terms:
“Where a section 27 sentence is an indeterminate sentence requiring that the person who is the subject of the sentence be detained during the pleasure of Her Majesty or during the pleasure of the Governor of the participating State in which the sentence was imposed, the person shall be detained during the Governor’s pleasure.”
Thus, Ms Weisser was to be detained in South Australia during the Governor’s pleasure.
In 1985, when Ms Weisser was transferred to South Australia, ss 292 to 293a of the Criminal Law Consolidation Act provided a scheme for dealing with prisoners found not guilty by reason of insanity and detained during the Governor’s pleasure. Section 293a authorised the Governor to release a person so detained upon licence. As I have mentioned, on 16 October 1986 and on 22 December 1988 Ms Weisser had been released on licence. She was still released on licence in 1989. Although s 28 (4) of the Prisoners (Interstate Transfer) Act did not expressly refer to s 293a, I believe that the intent of ss 27 and 28 (4) was that s 293a was to apply in the case of persons found not guilty by reason of insanity. That is a consequence of the fact that s 27 deems the order of detention during the Governor’s pleasure to be an order made by the Supreme Court of South Australia. The only authority the court had for making such an order was pursuant to s 293a.
Difficulties are, however, occasioned by an amendment made to s 28 (4) by the Prisoners (Interstate Transfer) Amendment Act 1989 which came into force on 1 October 1989. That Act amended a number of provisions. It is sufficient for present purposes to note only the amendments to s 28 (4) of that Act. Section 28 (4) as amended in 1989 and as it currently reads is in these terms:
“Where a translated sentence is an indeterminate sentence requiring that the person who is the subject of the sentence be detained during the pleasure of Her Majesty or during the pleasure of the Governor of the participating State in which the sentence was imposed, the person must be detained until the Supreme Court discharges the sentence, but may be released earlier on licence subject to and in accordance with the Criminal Law (Sentencing) Act1988 as if the sentence were a sentence of indeterminate duration imposed under that Act.”
The expression “a translated sentence” in s 28 (4) was what had formerly been called a “Section 27 sentence” in the previous form of s 28 (4). It will be noted that the scheme in the amended s 28 (4) expressly refers to the Criminal Law (Sentencing) Act1988 and, in particular, provides that “the release of a person, subject to an indeterminate sentence, will be subject to and in accordance with the provisions of the Criminal Law (Sentencing) Act”. A sentence of indeterminate duration imposed under the Criminal Law (Sentencing) Act means detention in custody until further order, see s 3 of that Act.
Given that s 28 (4) requires that any order for release on licence must be made in accordance with the Criminal Law (Sentencing) Act as if the sentence were a sentence of indeterminate duration imposed under that Act, the statutory scheme in ss 292 to 293a of the Criminal Law Consolidation Act is thereby displaced. There simply is no room for the operation of that scheme as there had been under the provisions of s 28 (4) before it was amended.
Part 2 Division 3 of the Criminal Law (Sentencing) Act contains a number of provisions in relation to sentences of indeterminate duration. It establishes a régime which is substantially different and quite distinct from the régime which was formerly contained in s 293a of the Criminal Law Consolidation Act and which now exists under Part 8A of that Act. If that régime applies to Ms Weisser, there are real questions whether the decision made on 25 June 1992 to release Ms Weisser on licence was valid and whether the orders made by Nyland and Perry JJ were valid. It should be noted also that the provisions in the Criminal Law (Sentencing) Act relating to sentences of indeterminate duration are intended to apply to habitual criminals and offenders incapable of controlling their sexual instincts. The provisions are plainly inappropriate for a person found not guilty by reason of insanity.
The 1989 Amendment Does Not Apply
There are, I think, two reasons why the 1989 amendment does not apply to Ms Weisser. The first is a consequence of the Governor releasing her on licence in December 1988. The only power available to the Governor to release her was pursuant to s 293a. Once she had been released, a step had been taken under s 28 (4) of the Prisoners (Interstate Transfer) Act with the intention of her ultimate rehabilitation. That step involved her being placed under the régime of s 293a of the Criminal Law Consolidation Act. The 1989 amendment did not, therefore, affect her by reason of the terms of s 16 (1) (b) of the Acts Interpretation Act 1915.
The second reason is grounded on the practice by which legislation is amended in Australia. The practice is noted in para 1.34 of Pearce and Geddes, Statutory Interpretation In Australia, (5th edition). Australian jurisdictions adopt the textual style of amendment with the consequence that when the principal Act is amended by inserting new words, the inserted words are not to be treated as if they had always been included in the principal Act: see Smith v Calder & Anor [1941] SASR 263 and Pullos v Gifford Enterprises Pty Ltd [1990] 2 Qd R 251 at 258 per Ambrose J.
Thus, the 1989 amendment to s 28 (4) did not have a retrospective operation. There will, of course, be instances where the terms of the amendment make it clear it is to have a retrospective operation. One example is McKenzie v Secretary, Department of Social Security (1989) 18 ALD 1.
I note that, when the 1989 amendment came into force on 1 October 1989, Ms Weisser was not released on licence. Her licence had been revoked. I do not believe that alters the effect of these reasons because the operation of the régime established by s 293a had already been invoked and it is apparent that the intention was to continue to invoke it. That intention can be gathered from the fact that Ms Weisser had already been released on 16 October 1986 with the subsequent revocation of her licence. She was again released on licence on 22 December 1988.
For all of those reasons Ms Weisser is not subject to the régime established by the 1989 amendment to s 28 (4) of the Prisoners (Interstate Transfer) Act.
The New Section 293a
In 1992 s 293a of the Criminal Law Consolidation Act was repealed by the Criminal Law Consolidation (Detention of Insane Offenders) Amendment Act 1992 (“the amending Act”) and a new s 293a substituted. I turn to note the powers now vested in the court under s 293a so far as they apply to Ms Weisser. For present purposes it is necessary to note sub-ss (6) to (20) of s 293a.
“(6)Subject to this section, a person will not be released from detention until the court that made the detention order discharges the order on application by the Crown or the person.
(7)The court that made a detention order in relation to a person may, on application by the Crown or the person –
(a)   release the person on licence subject to such conditions as the court thinks fit and specifies in the licence;
or
(b)   vary the conditions of such a licence.
(8)The Crown and the person to whom the application relates are parties to an application under this section.
(9)The Crown must, for the purpose of assisting the court in determining an application under this section, furnish the court with particulars of the views of the following persons as to the impact it would have on them should the application be dismissed or granted:
(a)the next of kin of the person to whom the application relates;
and
(b)   the victims (if any) of the offence with which the person was charged.
(10)The validity of the court’s determination on an application under this section is not affected by non-compliance or insufficient compliance with subsection (9).
(11)The court cannot release a person on licence, vary the conditions of a licence or discharge a detention order under this section unless –
(a)   it has first obtained and considered the report of at least three legally qualified medical practitioners each of whom has separately examined the person and, in the case of a proposed release on licence or discharge, at least two of whom are psychiatrists with experience in forensic psychiatry (one not being employed in the part of the institution in which the person is being detained);
and
(b)   it is satisfied that the person’s next of kin and the victims (if any) of the offence with which the person was charged have been given reasonable notice of the application.
(12)Notice is not required to be given under subsection (11) (b) to a person whose whereabouts cannot, after reasonable enquiries, be ascertained.
(13)In determining an application for the release of a person on licence or for variation of the conditions of his or her licence, the court –
(a)   must seek to make a determination that is the least restrictive of the person’s freedom and personal autonomy as is consistent with the safety of the community;
and
(b)   to that end, must have regard to –
(i)whether the person is suffering from a mental illness or has an intellectual impairment;
(ii)whether, if the person were to be released, his or her behaviour (whether or not arising from a mental illness or intellectual impairment) would be likely to constitute a danger to another person, or to other persons generally;
(iii)whether there would be adequate resources available to the person in the community for his or her treatment and support;
(iv)whether the person would be likely to comply with the conditions of his or her licence;
and
(v)such other matters as the court thinks relevant.
(14)In fixing or varying the conditions of a licence, the court must also have regard to the interests (so far as they are known to the court) of the person’s next of kin and of the victims (if any) of the offence with which the person was charged.
(15)The court that released a person on licence under this section may, on application by the Crown, cancel the release if satisfied that the person has contravened, or is likely to contravene, a condition of the licence.
(16)Where a person who has been released on licence under this section 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 and the detention order is suspended while the person is in prison serving the term of imprisonment.
(17)Where the circumstances of a person released on licence pursuant to this section have not been reviewed by the court for a period of three years (either pursuant to an application under this subsection or an application for discharge of the detention order), the Minister must apply to the court that released the person on licence for a review of the detention order.
(18)On completion of a review, the court may discharge the detention order unless it is satisfied that, in the interests of the safety of another person, or of other persons generally, the order should remain in force.
(19)Where the court refuses a person’s application for his or her release on licence, for variation of the conditions of his or her licence or for his or her detention order to be discharged, the person cannot further apply for release, variation or discharge, as the case may be, for a period of six months or such greater or lesser period as the court may have directed on refusing the application.
(20)In this section –
‘detention order’ means an order for detention made under section 292 or 293:
‘next of kin’ of a person means a person’s spouse (or putative spouse), parents and children:
‘psychiatrist’ means a person registered under the Medical Practitioners Act 1983 as a specialist in psychiatry:
‘victim’, in relation to an offence, means a person who suffered mental or physical injury or nervous shock as a result of the offence.”
The effect of s27 of the Prisoners (Interstate Transfer) Act was that Ms Weisser was deemed to have been sentenced under the law of South Australia. The relevant law was s 292 of the Criminal Law Consolidation Act as it then existed. Ms Weisser was, therefore, subject to a detention order as defined in s 293a (20).
Section 6 (2) of the amending Act provided:
“A person who is, immediately prior to the commencement of this Act, subject to a licence pursuant to s 293a of the principal Act will, on that commencement, be taken to have been released by the court on licence pursuant to the principal Act as amended by this Act.”
The amending Act came into force on 6 July 1992. On 25 June 1992 Ms Weisser had been released on licence. Section 6 (2) not only subjects Ms Weisser to the régime established by the amending Act but also establishes her status under that Act. As Ms Weisser had been released on licence before the new Act came into operation, she was by virtue of s 6 (2) deemed to be a person released on licence pursuant to sub-s (7).
Although not expressly stated in the Act, a person released on licence remains subject to a detention order. That intention is apparent from the examination of sub-s (17), if not also sub-ss (15) and (16) of s 293a. Thus, the application made by the Director of Public Prosecutions is an application made pursuant to sub-s (17) on behalf of the Minister. The application made by Ms Weisser for a discharge of the detention order is an application pursuant to sub-s (6).
Should the Detention Order be Discharged?
Ms Weisser seeks more than to be released on licence. As I have said, she applies for an order discharging the detention order. The medical evidence indicates that the time has not yet arrived when the sentence should be discharged. It is neither necessary nor appropriate to review that evidence at length. It is sufficient to note that Ms Weisser’s psychiatric symptoms respond to the medication which she has been prescribed. Her condition is stable while she takes her prescribed medication and it appears that she takes it in the prescribed dosages. It must, however, be noted that Ms Weisser still has hallucinations of hearing a male voice. Although her condition continues to improve, she has not made a complete recovery and it would be inappropriate to discharge the sentence until she has made a complete recovery and no longer requires medication. The application for discharge of the detention order is, therefore, dismissed. Instead, Ms Weisser will continue to be released on licence.
The same considerations apply mutatis mutandis to the application by the Minister for a review of the terms of the release on licence.

The next question is what conditions should be imposed on the licence. The medical evidence to which I have referred indicates that it is desirable that Ms Weisser continue to be subject to the same terms and conditions that were ordered by Perry J albeit slightly amended. The new terms will be:
1.That the licensee reside at 3 Pope Street, Adelaide, SA, 5000 with liberty to reside at other addresses within the metropolitan area of Adelaide on condition that she first notify Dr Nicholas Adams, her general practitioner, in writing of such new place or intended residence.
2.That the licensee may travel interstate and overseas for short periods and for the latter purpose the licensee may apply for and hold an Australian passport on condition that she first notify Dr Adams of her intended travel arrangements and comply with his directions in regard to medical treatment before, during, and after such periods of travel.
3.The licensee comply with the directions of Dr Adams in relation to her psychiatric rehabilitation and medical treatment but not including treatments which require the specific consent by the Guardianship Board under the Mental Health Act.
These are not onerous conditions and it is Ms Weisser’s intention to comply with them. They are conditions which are necessary and important for her psychiatric rehabilitation. I do not believe, nor is it suggested, that these conditions unfairly restrict her reasonable movements. They are a means of ensuring that her mental condition remains stable and they provide the necessary sanction to ensure compliance with the medical régime. While I understand Ms Weisser’s natural desire to be released unconditionally, such conditions are necessary and in the public interest. Given that Ms Weisser still experiences hallucinations, her mental condition must be controlled by medication. This Court must act in a cautious way to safeguard the public interest.
Ms Weisser will, therefore, be released on the above terms and conditions.
Law Reform
The issues arising in Ms Weisser’s application have disclosed that an inappropriate régime may exist in respect of prisoners transferred from interstate who are subject to an indeterminate sentence by reason of the fact that they have been found not guilty of an offence by reason of insanity. As noted earlier in these reasons, a person who was transferred after the 1989 amendments to the Prisoners (Interstate Transfer) Act will be subject to the régime applicable to habitual prisoners and persons who are unable to restrain their sexual instincts. These prisoners would not be subject either to the régime under s 293a of the Criminal Law Consolidation Act or Part 8A of that Act as it now exists by reason of the fact that the expression “indeterminate sentence” is defined in s 5 of the Prisoners (Interstate Transfer) Act in a way which precludes the operation of either régime. The matter is one which deserves reconsideration by the Parliament.