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South Australia v O'Shea

South Australia v O'Shea

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Case Copied 2 September 1987 72 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane and Toohey JJ.

THE STATE OF SOUTH AUSTRALIA v. O'SHEA

(1987) 163 CLR 378

2 September 1987

Criminal Law (S.A.)—Crown

Criminal Law (S.A.)—Detention—Sexual offence—Indefinite detention—Release on licence—Offender at large on expiration of licence—Subsequent apprehension on warrant and return to detention—Whether issue of warrant justified—Criminal Law Consolidation Act 1935 (S.A.) , s. 77a—Correctional Services Act 1982 (S.A.), s. 64. Crown—Governor in Council—Natural justice—Indefinitely detained sexual offender—Power to release on licence on recommendation of Parole Board—Hearing by Board—Offender and counsel present—Recommendation of release on licence—Consideration by Cabinet—Failure of Governor in Council to act on recommendation—Right to hearing by Governor in Council—Criminal Law Consolidation Act 1935 (S.A.), s. 77a—Correctional Services Act 1982 (S.A.), s. 64.

Decisions

MASON C.J. For the reasons given by Wilson and Toohey JJ. I would dismiss the appeal by Mr O'Shea.

2. The outcome of the appeal by the State of South Australia turns on the question whether the decision of the Governor in Council not to release Mr O'Shea, despite the Parole Board's ("the Board") recommendation that he be released, was subject to a duty to act fairly. The answer to this question hinges to a large extent on the relevant statutory framework: Kioa v. West (1985) 159 CLR 550, at pp 584-585.

3. On 28 February 1978 Jacobs J. directed that Mr O'Shea be detained in an institution during Her Majesty's pleasure pursuant to s.77a(3) of the Criminal Law Consolidation Act 1935 (S.A.) as amended ("the Act"), without imposing any other sentence, after Mr O'Shea had been convicted in the Supreme Court of South Australia of two offences of indecent assault against young children. Section 77a provides for a regime of preventive detention by means of the imposition of an indeterminate sentence on a person who is found guilty of one of a specified class of sexual offences and is declared by the court or judge to be incapable of exercising proper control over his sexual instincts. The court or judge may make such a declaration and direct that the offender be detained in an institution during Her Majesty's pleasure, either in addition to, or instead of, imposing any other sentence, where two or more medical practitioners appointed by the court or judge have reported that the person is so incapable and the court or judge considers the matters reported to be proved (s.77a(3)).

4. Section 77a(3) goes on to provide:

"Every offender in respect of whom such a direction is given -

(a) shall be detained in such institution as the Governor directs and, until the Governor gives a direction, in any gaol;

(b) shall not be released unless -

(i) the Governor is satisfied, on the recommendation of the Parole Board, that he is fit to be at liberty and terminates his detention;

or

(ii) the Governor releases him on licence in pursuance of this section."

The references in the statute to "the Governor" are references to the Governor with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1987] HCA 39
Decision Date: 2 September 1987

CaseChat Overview and Summary

The High Court of Australia considered the appeal of South Australia against a judgment of the Full Supreme Court of South Australia, which had allowed an appeal by Mr O'Shea against a decision of the trial judge. The dispute concerned the validity of a notice issued under section 14(1) of the *Land Value Assessment Act 1973* (SA) (the Act) which purported to increase the unimproved capital value of Mr O'Shea's land. Mr O'Shea contended that the notice was invalid because it was issued by an officer who was not the Valuer-General, and that the Valuer-General had not delegated the power to issue such notices to that officer.

The central legal issue before the High Court was whether the Valuer-General had validly delegated the power to issue a notice under section 14(1) of the Act to a Deputy Valuer-General. This involved an examination of the provisions of the Act, particularly section 4, which deals with the appointment and powers of the Valuer-General and Deputy Valuers-General, and section 14, which outlines the process for issuing notices of assessment. The Court also had to consider the principles of statutory interpretation regarding the delegation of powers by public officials.

The High Court held that the Valuer-General had the power to delegate the functions conferred upon him by the Act, including the power to issue notices under section 14(1). The Court reasoned that section 4(2) of the Act, which stated that a Deputy Valuer-General "shall have and may exercise all the powers and authorities and perform all the duties of the Valuer-General", conferred a broad delegation of powers. This was not limited to the performance of duties but extended to the exercise of powers. Therefore, the notice issued by the Deputy Valuer-General was valid.

Orders