Yates v The Queen

[2013] HCA 8

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, BELL AND GAGELER JJ

GREGORY JOHN YATES  APPLICANT

AND

THE QUEEN  RESPONDENT

Yates v The Queen

[2013] HCA 8

14 March 2013

P21/2012

ORDER

1.Dispense with compliance with the time limit for filing the application for special leave to appeal and grant the application, treat the appeal as instituted and heard instanter and allowed.

2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of Western Australia declining to interfere with the order made by Wallace J under s 662 of the Criminal Code (WA) and in lieu thereof quash that order.

On appeal from the Supreme Court of Western Australia

Representation

K J Farley for the applicant (instructed by Legal Aid WA)

B Fiannaca SC with S H Linton for the respondent (instructed by Director of Public Prosecutions (WA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Yates v The Queen

Criminal law – Sentence – Detention during Governor's pleasure on expiration of sentence under s 662 of Criminal Code (WA) – Whether evidence capable of supporting conclusion that applicant a constant danger to community – Whether order demonstrably necessary to protect society from physical harm.

Criminal Code (WA), s 662.

1. FRENCH CJ, HAYNE, CRENNAN AND BELL JJ. The applicant is an intellectually disabled man. He has been in continuous custody since 8 August 1986 when he was charged with two related offences arising out of the aggravated sexual assault of a seven year old child. He was convicted on 12 February 1987 and sentenced on 13 March 1987 for these offences in the Supreme Court of Western Australia (Wallace J). The term of the sentences expired in June 1993. His custody since that time has been authorised by an order made by Wallace J pursuant to s 662 of the Criminal Code (WA) ("the Code") directing his indefinite detention at the Governor's pleasure.

2. Wallace J imposed concurrent sentences of seven years' imprisonment for each of the offences[1].  The applicant appealed against the severity of the sentences and against the making of the s 662 order to the Court of Criminal Appeal of the Supreme Court of Western Australia (Burt CJ, Brinsden and Smith JJ).  On 29 July 1987, the Court of Criminal Appeal allowed the appeal against the severity of the sentences and reduced each by nine months to give the applicant credit for a period of pre-sentence custody[2].  The majority (Brinsden and Smith JJ) declined to interfere with the s 662 order. 

   [1]The applicant was convicted of one count of "deprivation of liberty" contrary to s 333 of the the Code and one count of "aggravated sexual assault" contrary to s 324E of the Code – the circumstances of aggravation were that bodily harm was done to the complainant and that the complainant was under the age of 16 years.

   [2]The applicant had been in custody for seven…