The State of Western Australia v Smith [No 2] - [2024] WASC 420

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SMITH [No 2] [2024] WASC 420
CORAM:   QUINLAN CJ
HEARD:   13 NOVEMBER 2024
DELIVERED          :   13 NOVEMBER 2024
PUBLISHED           :   13 NOVEMBER 2024
FILE NO:   INS 271 of 1993
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

SMITH
Respondent

Catchwords:

Criminal law – Accused acquitted of charges on the grounds of insanity subject to custody order – Limiting term of custody order expired – Transitional provisions – Adjournment – Purpose of adjournment

Legislation:

Criminal Code (WA), s 653
Criminal Law (Mental Impairment) Act 2023 (WA), s 264, s 265(7), s 265(8)
Criminal Procedure Act 2004 (WA)

Result:

Proceedings adjourned

Category: B

Representation:

Counsel:

Applicant	:	A J Finn
Respondent	:	K Gorski

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

Case referred to in decision:

The State of Western Australia v Smith [2024] WASC 361

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

On 28 January 1994, Mr Smith was found not guilty of six offences by reason of insanity and ordered to be kept in strict custody subject to the Governor's pleasure pursuant to s 653 of the Criminal Code (WA). That custody order continued under both the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act).
As a consequence, Mr Smith has now been in custody for 30 years, 9 months and 16 days.
On 2 October 2024, in accordance with s 264 of the CLMI Act, I set the limiting term for Mr Smith's existing custody order as 10 years and 6 months.[1]
[1] The State of Western Australia v Smith [2024] WASC 361.
Mr Smith's limiting term therefore expired over 20 years ago. Subject to the jurisdiction of this Court to make an extended custody order under pt 7 div 5 of the CLMI Act, Mr Smith has a prima facie entitlement to be released from custody.
In accordance with s 265(7) of the CLMI Act, I adjourned these proceedings to today to enable the Minister to either apply to the court for an extended custody order or inform the court that such an application will not be made.
The parties sought a further adjournment of the proceedings today, on the basis that the Minister has not made a decision whether to apply for an extended custody order. In that context, the State provided a copy of a record of outcome prepared by the Mental Impairment Review Tribunal (Tribunal). The report detailed various steps that had recently been taken in relation to the management of Mr Smith and concluded:
Based on the information provided above, the Tribunal determines to adjourn consideration of whether an extended custody order should be made for Mr Smith, until further information can be obtained which detail the supports available to Mr Smith in the community.
Mr Smith's case will be reviewed again on 22 November 2024 for a periodic review or earlier upon advice from the Minister, treating psychiatrist, legal counsel or supervising officer.
In light of the fact that the Minister has not applied to the court for an extended custody order or informed the court that such an application will not be made, I will adjourn the proceedings on this occasion.
Nevertheless, in doing so, it is necessary that I address the circumstances in which the matter came before me today, as they appear to reflect a misapprehension of the requirements of the CLMI Act and the purpose of the adjournment required by s 265(7) of the CLMI Act.
The purpose of the adjournment required by s 265(7) of the CLMI Act is for the Minister to determine whether to bring an application under pt 7 div 5 of the CLMI Act. That is a decision that must be made by the Minister. While, pursuant to s 265(8) of the CLMI Act, the Minister may request a report from the Tribunal under s 103 in relation to the person subject to the existing custody order, the Minister is not obliged to do so. In any event, the decision to bring an application under pt 7 div 5 of the CLMI Act is that of the Minister and not the Tribunal.
Importantly, the only basis upon which the court can make an extended custody order is if the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that, to ensure the adequate protection of the community against an unacceptable risk that the supervised person will commit a serious offence, it is necessary to make an extended custody order in respect of the supervised person.[2]
[2] CLMI Act, s 110(3).
Similarly, on the proper construction of pt 7 div 5 of the CLMI Act, the only basis upon which the Minister could bring an application for an extended custody order is if the Minister considers that it is necessary that an extended custody order be made in respect of the supervised person so as to ensure the adequate protection of the community against an unacceptable risk that the person will commit a serious offence. That criteria is, for example, the only criteria that may form the basis of a recommendation by the Tribunal to bring an application.[3]
[3] CLMI Act, s 103(4).
The adjournment required by s 265(7) of the CLMI Act is therefore only for the purpose of the Minister considering that issue. It is not, for example, an open‑ended period of time during which the person is able to be managed and monitored as if the custody order were of indefinite duration. Nor is it concerned with the availability of community supports, save to the extent that those matters are relevant to the decision whether to apply to the court to ensure the adequate protection of the community against an unacceptable risk that the person will commit a serious offence. To reiterate, the purpose of the adjournment is not for ongoing management, including efforts to provide further support for the person subject to the custody order. No matter how admirable and well‑intentioned those efforts may be (and I accept that they are well‑intentioned in Mr Smith's case), it is important not to lose sight of the statutory purpose of the adjournment, particularly in light of the fact that, absent an application under pt 7 div 5 of the CLMI Act, Mr Smith is entitled to be released.
I appreciate that these statutory requirements are new, that the processes under the CLMI Act are in their infancy, and that they will have placed a substantial new burden on the officers of the Executive government (including the Minister and the Tribunal) to exercise their powers in a timely manner. No doubt that is why there was an implementation period of approximately 17 months between the CLMI Act receiving Royal Assent and its substantive commencement date. Notwithstanding those challenges, however, those powers must be exercised in accordance with the purposes for which they have been conferred.
In that regard, it is to be expected that the Minister will be in a position to make a determination, either way, as to whether to apply for an extended custody order prior to the next adjourned date.
I make an order that the parties have liberty to apply to bring the matter back before the next adjourned date in the event that the Minister determines not to bring an application under pt 7 div 5 of the CLMI Act.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Principal Associate to the Hon Chief Justice Quinlan
13 NOVEMBER 2024