Hore v The Queen; Wichen v The Queen [2022] HCATrans 87 (11 May 2022)

Last Updated: 11 May 2022

[2022] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A5 of 2022

B e t w e e n -

DARRYL MARTIN HORE

Appellant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A6 of 2022

B e t w e e n -

JACOB ARTHUR WICHEN

Appellant

and

THE QUEEN

Respondent

KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 11 MAY 2022, AT 9.45 AM

Copyright in the High Court of Australia

____________________

MR S.A. McDONALD, SC: May it please the Court, I appear for the appellants in each matter with MR G.P.G. MEAD, SC. (instructed by Legal Services Commission (SA))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear for the respondent in both matters with MS L.M. BOORD, SC. (instructed by Office of the Director of Public Prosecutions (SA))

KEANE J: Yes, Mr McDonald.

MR McDONALD: Thank you, your Honour, and thank you for accommodating my situation. These two appeals concern the construction of a regime for the indefinite detention of certain convicted sex offenders. The two grounds of appeal raise two questions of construction, both relating to the threshold that is found in section 59(1a)(a) of the Sentencing Act 2017 (SA). The second ground arises only as an alternative to the first, and so I propose to address the two grounds in that order.

Your Honours will have seen that the written submissions filed in the matter of Hore for both parties really just adopt the written submissions in the Wichen matter, so if I refer to the written submissions it will be a reference to the Wichen written submissions in each case. Can I also just check that the Court has received an additional bundle of materials from the appellant that we sent through yesterday?

KEANE J: Yes. we have.

MR McDONALD: Thank you, your Honour. So what I propose to do, if the Court pleases, is to take your Honours to the relevant provisions of the Sentencing Act first. The Sentencing Act is in item 3 in volume 1 of the joint book of authorities and the relevant provisions, being the provisions of Division 5 of Part 3, can be found starting at page 53 of that book. In the course of taking your Honours to the provisions, I propose to address the propositions in paragraph 2 of our oral outline and then I will after that take your Honours to the Court of Appeal and identify what we respectfully submit are errors in the approach of that court.

The provision that we are most concerned with is section 59 and, in particular, paragraph (a) of section 59(1a). That is found on page 57. But what I would propose to do is to take your Honours first to section 57, because that is where the detention regime begins. So, the structure of section 57 is that, first, subsection (1) provides a series of defined terms which are introduced by the opening words of section 57(1), namely “In this section”. I will come back to those definitions shortly and, in particular, the word ‘unwilling’ which is near the top of page 54.

But the three ways in which the Supreme Court can come to exercise the power under section 57 appear from the definition of “person to whom this section applies” in section 57(1). Your Honours will see that on page 53. Then each of those depends in part at least on the person having been convicted of a relevant offence. We have noted in passing that a “relevant offence” is defined very broadly and, although all sexual offences are obviously very serious, the concept of a relevant offence includes offences that are the low end of the scale of seriousness for offences of that kind, and we have pointed out the lowest of those at paragraph 11 of our written submissions.

The actual power conferred on the Supreme Court to make the initial order for indefinite detention, that is, detention in custody until further order, your Honours will find in section 57(7). You see that it picks up the defined expression “person to whom this section applies” from section 57(1). We would ask your Honours to note that textually the only express precondition identified in section 57(7) itself is found in the words “if satisfied that the order is appropriate”.

Subsection 57(6) is an important provision that bears on the questions of construction that arise. That provision requires the Supreme Court, before determining to make an order that a person be detained in custody until further order, to direct that at least two medical practitioners inquire into the mental condition of the person and report to the court on whether the person is incapable of controlling or unwilling to control the person’s sexual instincts. That is where the definition, the word “unwilling” – which is found in section 57(1) – is engaged.

Indeed, the only place where the actual word “unwilling” appears in sections 57 through to 59 is in section 57(6), section 58(2) and section 59(2) and those latter two provisions, also like section 57(6), require the court to direct the provision of reports by a medical practitioner. Those latter two provisions, 58(2) and 59(2), are in terms that are substantially the same as section 57(6).

So, when one comes to the definition of “unwilling” in section 57(1), the only place that that feeds in, according to its terms, is section 57(7). I say “according to its terms” there because obviously the opening words of section 57(1) appear to restrict its operation to in this section, that is section 57 itself.

GLEESON J: Mr McDonald, would it be a better characterisation of the provision concerning “unwilling” to describe it as a deeming provision, rather than a definition?

MR McDONALD: Your Honour, yes. In form, I agree, it does take the form of a deeming provision, then I suppose that then immediately invites the question, what is the extent and purpose of that legislative deeming? There is obviously a well‑accepted principle that a deeming provision should be strictly construed and not extended beyond its evident purpose, and so ‑ ‑ ‑

GLEESON J: Perhaps the answer to that is that the concept of “unwilling” is about the offender’s state of mind, but, of course, it is very difficult to know what the offender’s state of mind is, even by reference to what the offender claims about their state of mind.

MR McDONALD: No doubt that was probably what informed the use of a different expression – a different sense than the normal sense of “unwilling”, but what it – in my submission, identifying that it is potentially treated as a deeming provision really only indicates that – a strange deeming provision, in that the place where it feeds in, where the word “unwilling” appears in the statutory scheme, is in the content of the reports of the medical practitioners. So, the immediate effect of the deeming provision is not to attach some particular consequence to a finding of the court, but to tell the doctors what it is that they need to report on.

EDELMAN J: Mr McDonald, even without that definition of “unwilling”, the doctors would still need to know where on a scale of willingness they stop. I mean, anyone who has attempted a diet will know that there is willingness at one end of the scale, which may not be successful, and willingness at another end of the scale, which may be extremely likely to be successful. The definition seems to set the degree of willingness that is required as a degree by which there is no longer a significant risk that the person would fail to exercise appropriate control.

MR McDONALD: Well, I think I accept the first part of what your Honour said, but in terms of – if the suggestion is that this is sort of just identifying a particular form of the concept of “unwilling” that is within the ordinary meanings of “unwilling”, we would respectfully submit that “unwilling” necessarily denotes a subjective state of mind. Your Honour is right, obviously, that you could be willing, but when the situation presents, it does not necessarily guarantee that you will give effect to that will in the moment, or in the circumstances that arise.

We accept that, but to the extent that there is a suggestion in that question that this really is a way of assessing whether the person is unwilling or not, it really replaces the subjective inquiry which, we would submit, is the ordinary meaning of “unwilling”, with an objective inquiry which is really in the nature of a prediction about the probability of an event occurring or particular conduct being engaged in.

So, in one sense, no doubt, that is – the definition of “unwilling” does feed into what the medical reports have to say, and therefore informs what the doctors will say, I accept that, but if it is a question of - in our submission, if it is a question of changing the normal meaning of “unwilling” to something that is quite different ‑ ‑ ‑

EDELMAN J: Mr McDonald, the normal meaning of “unwilling” by itself cannot work in any of the provisions of this Act because it immediately invites the question of how unwilling? You could be a little bit unwilling or you could be extremely unwilling. Where, on that very, very wide spectrum do you select the point of assessment? It seems to me at the moment that the definition is doing no more than telling you where on the point of that spectrum you fix in order to find the degree of unwillingness.

MR McDONALD: In our submission, it is really replacing the subjective concept of “unwilling” with an objective assessment. What we would say though is that this – well, ultimately we are here to construe section 59(1a)(a) and the word “willing”. So, the question ‑ ‑ ‑

STEWARD J: Mr McDonald, can I ask you a question about the definition before you move on. Having regard to the juxtaposition in 57(6) of the phrase “incapable of controlling” versus “unwilling to control”, does that mean you need to read the definition of “unwilling” where it refers to a failure or a failure to exercise control, that it must be a failure for a reason other than incapacity?

MR McDONALD: I think that is probably implicit in it, your Honour, yes. We have attempted at paragraphs 26 and 27 of our written submissions to tease out what the difference is between a person being incapable and a person being willing or unwilling. So, in a sense the law obviously takes a compatibilist view of the mind and assumes that people can act with free will and that there may be situations where even though they are capable they may act in a way that is ‑ ‑ ‑

STEWARD J: Is that how the experts have been viewing what they have to do?

MR McDONALD: Well, it is not always necessarily clear, but the experts in both these cases considered that the people were – well, at least in Mr Wichen’s case I am confident that the position was that Mr Wichen was capable of controlling his sexual instincts, but not willing in the sense that there was a risk that if given the opportunity to commit an offence, he may fail to exercise appropriate control, obviously picking up the definition.

GORDON J: So that is a distinction between capacity and volition?

MR McDONALD: Yes.

GLEESON J: Mr McDonald, it could not be the task for the medical practitioner just to test the credibility of the offender’s assertion that he is willing to control his instincts. Is that what you are suggesting? What are you suggesting is the test for the medical practitioner?

MR McDONALD: What the medical practitioner needs to do is to make a risk assessment – or a probability assessment, really - the word “risk” in this context seems to really mean chance or probability – of how likely it is that if a person is placed in a particular position, that they will act in a particular way. So, it becomes a wholly – we would say – objective inquiry in the sense that it is predicting behaviour.

Now, obviously, the subjective state of mind of the person will clearly feed into that objective assessment, so in that sense, it might be said it is a mix of objective and subjective, but that, in our submission, is different from what would be the ordinary meaning of “willing”, which would suggest – you would look at whether the person wants to not offend, whether they are prepared to commit to not offending. That is really the sense in which we would submit the ordinary meaning of “willing” ‑ ‑ ‑

GLEESON J: Do you agree that the point, the evident point of having a medical practitioner to opine on something like that, could not just be to test the bona fides of the offender, but also necessarily to do some form of risk assessment?

MR McDONALD: Well, I accept that, your Honour, yes. Of course – I mean, the question ultimately is when it operates as a precondition for release under section 59(1a)(a) it is the court that has to be satisfied of a particular matter.

GLEESON J: But it is the same test in all three sections, is it not - 57, 58 and 59?

MR McDONALD: Not the same test, your Honour, in the sense that the word that is defined in section 57(1) and defined for the purpose of 57(1) according to its terms, is “unwilling”, whereas the expression that is actually used in section 59(1a)(a) is to satisfy the court that the person is willing, which in our submission ‑ ‑ ‑

GLEESON J: I was referring to 59(2).

MR McDONALD: Yes, your Honour, I accept that it is the same expression in 59(2) and 58(2) and in each case – and this is part of the argument that we make – it is sensible for a medical practitioner to provide a risk assessment. I am sorry, your Honour, I fully accept that the medical practitioners are going to be providing a risk assessment which will then inform the court’s exercise of discretion, in our submission, and it makes perfect sense for the court to be provided with, in effect, an updated version of the same risk assessment that was initially conducted under section 57 when it comes to exercise the power to either release on licence or discharge the order.

EDELMAN J: It would be curious, though, would it not, Mr McDonald, if the experts were providing a report that was answering a question that did not really have any bearing upon the question that the Supreme Court itself was going to answer.

MR McDONALD: Your Honour, in our submission it does have a bearing in that 59(1a)(a) is one of the alternative preconditions to the enlivening of the discretion that the court has to release on licence, but then once that condition is met, the court has a discretion that is at large and in the exercise of the discretion it is clear that the risk to the community will be a paramount consideration. In fact, that is expressly provided for in section 59(3), in effect.

So, when exercising the discretion and deciding whether or not to actually release someone, those medical reports assessing an objective risk will be highly relevant. The question is whether it follows that the precondition itself necessarily has to reflect the content of the report and our submission is that, firstly, the provision that - subsection 59(1a) was inserted into the Act after subsection (2) was already there. So subsection (2) was already there, requiring a report from the medical practitioners before 1(a) was released. So that shows that there is an obvious relevance of the report to be exercised of the discretion.

What 59(1a) has done is to insert a precondition that has to be satisfied before the exercise of that discretion and, in our submission, it used language that is different from the defined term that is not within section 57, which is what the defined term is particularly directed to.

EDELMAN J: Do you accept that in the Supreme Court making an assessment of willingness under section 59(1a)(a) that the Supreme Court is going to need to decide the point at which the person is sufficiently willing - in other words, that a very small degree of willingness might not be sufficient while a very, very high degree of willingness will be sufficient.

MR McDONALD: Your Honour, there will obviously be some kind of line‑drawing exercise, if you like, implicit in the making of a finding that a person is sufficiently willing to control their ‑ ‑ ‑

EDELMAN J: Why then should not that line be drawn at a point at which willingness amounts to a sufficient willingness to ensure that the person is no longer – or there is no longer a significant risk that the person will commit the offence?

MR McDONALD: Well, in our submission, essentially because that means drawing in the substituted objective concept from the definition in 57(1) and inserting it, in effect, into – or the converse of it into section 59(1a). There has not been any great difficulty in the Supreme Court being able to identify that it is satisfied that a person is subjectively willing or is not. It seems perhaps surprising, but there are people detained under schemes like this that will.....positively admit that, if released, they will take the opportunity and they do not have any intent of exercising control over their sexual instincts.

But there is also, obviously, a question of whether the court accepts evidence from a person who says that, and your Honours will have seen in the judgment of the Chief Justice at first instance in the Wichen matter there is an express finding at paragraph 122, core appeal book page 53:

that if the relevant condition for release on licence was whether Mr Wichen was willing to control his sexual instincts, in the ordinary meaning of that word, I would find that he is.

That followed a finding expressed at paragraph 119, page 52 of the Wichen core appeal book, to the effect that:

Mr Wichen is determined to change.

So, while I accept that there are questions of degree, your Honour, the questions of degree, in our submission, have to relate to the subjective strength of the intention or the will. So it might be a question of whether a person – whether merely being open to something is sufficient, or whether one has to be, for example, eager or, as was found in Mr Wichen’s case, determined to control their sexual instincts in a situation where the circumstance arises.

But once one switches to a concept of assessing the risk of an event occurring, in my submission one is moved outside of the concept of the ordinary meaning of “willing”, which is a focus on subjective state of mind, and looking instead at what ‑ ‑ ‑

KEANE J: Mr McDonald, I wonder whether the debate is not being confused by this reference to subjective state of mind. Is it not tolerably clear that what one is concerned with is the actual real state of mind, that is to say, is there a willingness to exercise the ability to control, as opposed to wishful thinking or feigned willingness? The purpose for obtaining the medical reports is to provide the court with material from which it can come to a view as to the real state of mind, whether the person is truly willing to exercise their ability to control their sexual instincts. You do not suggest that because the person says I really want to reform that that concludes the question, do you?

MR McDONALD: No, no, it is certainly ‑ ‑ ‑

KEANE J: No. I just wonder whether the constant reference back to a subjective question is not unhelpful. It is what one can see, what the court can find, as a matter of fact, is the real state of mind, the real state of willingness or lack thereof in relation to the individual that the medical reports are concerned with and that the court has to be concerned with.

MR McDONALD: Your Honour, I totally accept that it is a question of the court finding the real state of mind but, in my submission, when one says, “the real state of mind”, that means the real subjective state of mind, so certainly the situation where ‑ ‑ ‑

KEANE J: The state of mind of that individual.

MR McDONALD: Yes, but again there has not been any difficulty in finding that Mr Wichen genuinely holds a state of mind of being willing to control his sexual instincts in the ordinary meaning of the word.

GORDON J: Mr McDonald, that is only part of the inquiry, and that is made clear by subsection (4). It tells us that the court must take into account a number of things. One of them is the medical reports, one of them is any relevant evidence or representations that the person might want to put forward including his or her view of their incapacity or willingness, and then reports from the Parole Board or the other boards that are relevant. So just so I understand the propositions, you accept that “unwilling” has the same meaning in 57, 58 and 59?

MR McDONALD: Yes.

GORDON J: You accept, as I think I understand it, that one is looking at the converse between the satisfaction in (1a) being the – asking the medical staff to look at the converse of it in preparing its reports in (2).

MR McDONALD: That is what the respondent and the Court of Appeal have said, that “willing” in (1a)(a) means the converse of the defined expression.

GORDON J: If it is not, then what is the point of the experts’ reports, because they are directed at a different question than the court is asking itself, are they not?

MR McDONALD: They are directed at a different question than the court has to ask itself under (1a)(a) – that is just the threshold. They are directed at a consideration ‑ ‑ ‑

GORDON J: Well, just put the threshold aside for one moment. Assume that there is no threshold and one looks at (1), (1a) and (2), (3) and (4) as a composite set of provisions. It would be an odd thing, would it not, if you had experts providing a report on whether or not a particular person was unwilling to control their sexual instincts if it was directed at a different question to that that the court was being asked to look at, for example, under (1a)(a), or ask a different question, why would you have it?

MR McDONALD: Why would you have (1a)(a)?

GORDON J: No, why would you have experts directed at asking themselves the question – the statutory question in (2), if it is not the same question, or the converse of the question that the court is asking itself?

MR McDONALD: Because the function of the question the court asks itself in the scheme is to get over a threshold question that then enlivens a discretion and the exercise of the discretion will necessarily take into account what we would call a risk assessment or a probability of particular conduct, that is, the risk to the community. That is very clear from paragraph 3. But it does not necessarily follow that the first question the court has to ask itself to even get to the point of considering the discretion necessarily reflects the content of the medical reports. The medical reports were required before there was any (1a). Subsection (1a) has come into an existing scheme by imposing a new threshold that has to be met before the exercise of discretion. But the function of ‑ ‑ ‑

EDELMAN J: Mr McDonald, what really is the extent of the discretion? I mean, if the Supreme Court finds that a person is both capable of controlling and willing to control their sexual instincts, and also finds that the person no longer presents an appreciable risk of the safety of the community, is there any circumstance where the Supreme Court would not exercise the discretion?

MR McDONALD: Your Honour, I think that might be based on a misreading of subparagraphs (a) and (b) of subsection (1a). Those are two alternative situations in which the court can release. One of the points we make is that the apparently subjective language of paragraph (a) is in contrast to what is clearly a risk assessment language in subsection (b).

EDELMAN J: I was thinking more about the circumstances in (1a)(a) and subsection (3), which is concerned with the safety of the community as a paramount consideration. Once those two factors are satisfied by the court, would there be any room left for the exercise of a discretion not to release on licence?

MR McDONALD: Well, to say that something is a “paramount consideration” in my submission means that it is to be weighed together with other considerations but is to be given the most weight, and so there are matters of degree in that. So, (3) governs the way that the – well, the way that the discretion would be exercised and the weight to be given to competing factors in the exercise of that discretion.

Subsection (4)(a) is another example of a provision that effectively takes away what would otherwise be a relevant consideration in the exercise of the discretion. So, in my submission, the court will weigh up the degree of risk, the extent to which that can be alleviated by conditions, the extent to which – and the right – that is probably not the right word, but the liberty of the person applying for release on licence. Those are provisions that go to weighting the discretion in particular ways, rather than (3) operating itself as a kind of objective risk threshold.

STEWARD J: Mr McDonald, can I just test your proposition in a different way? Is your objection – rather than it being about objective versus subjective, is your objection that you would need to test willingness to control based upon a person having an opportunity to commit a crime or the relevant offence? Is that what you object to? In other words, you took us to the finding of the trial judge that there was a willingness to control it as at the date of the trial, but the definition of “unwilling” involves a prediction about something that might happen in the future and asks the question about that prediction: is there a significant risk that if there is an opportunity to offend, you would not be able to control? Is that what you object to, that kind of predictive test?

MR McDONALD: In a sense, your Honour, yes, in that, we would submit that a predictive text about what will happen or how big a risk there is of something happening in the future is informed by, but not necessarily the same as the subjective state of mind. I am sorry to use the word “subjective” again, but the willingness is concerned with the person’s attitude, if you like.

STEWARD J: But when you say, “the subjective state of mind”, that manifests itself, one assumes, when the doctors interview the individual in question and assess the answers they give in that interview, and the definition of “unwilling” in no way excludes such evidence in determining the risk of a failure to exercise control. Is that not right?

MR McDONALD: I agree that is excluded. It is just it takes into account other evidence as well, obviously ‑ ‑ ‑

STEWARD J: Yes, of course.

MR McDONALD: Such as the fact that they have committed offences before, the experiences that they had in their childhood, what supports they might have – all of those things which will bear on the objective likelihood of the event occurring or an offence being committed which, we would say, would not normally come within the ordinary meaning of the concept of whether someone is willing. It would come within the concept of a prediction about their future behaviour. I, of course, accept that whether they are willing or not and the strength of their will, will bear on that. But it is not the same question. It is only part of the question and that is why we ‑ ‑ ‑

GLEESON J: Mr McDonald, in section 59(1a)(a) the question of whether the person is capable of controlling their sexual instincts is a question about their ongoing capacity, is it not? It is not about their capacity at a moment in time?

MR McDONALD: I agree that is probably likely, yes.

GLEESON J: It would make sense that the question of their willingness is also not about a moment in time but about their continuing willingness to control their sexual instincts?

MR McDONALD: I accept that in the sense that obviously, if you say, “Well, I am willing while I am sitting here in the interview but as soon as I get out into the community, I will not be willing”, that is correct. So it is obviously looking at the present state of mind but on a continuing basis so the person who was only transitorily willing would not be willing in the relevant sense but a person who had a fixed intention that, “I will not re‑offend, I am going to make sure I control myself when I am released” would, on our construction, satisfy the requirement.

GLEESON J: One way of testing their true ongoing willingness would be to look at past behaviour. Is that fair?

MR McDONALD: Certainly any assessment of a person’s actual state of mind will need to take into account past behaviour, agreed.

KEANE J: It would also involve looking at the possibility of future behaviour having regard to conditions on which release might be effected. That is really raising your second ground that you should not always beware of Greeks bearing gifts, Mr McDonald.

MR McDONALD: I am grateful, your Honour.

GORDON J: Mr McDonald, I must say, you might like this gift, because it seems to me that your complaint, when I read your submissions on your outline of argument, is really what you describe as the paradox to which Chief Justice Kourakis referred. If you are right about ground 2, then those injustices that you have described, or the practical paradoxes and all the other language that you complain about, fall away regardless of the view that you take, or your argument in relation to ground 1. In other words, if you are right about the stepped‑down approach, then reading “willing” and “unwilling” as the converse of each other does not detract from ground 2, and ground 2 meets your injustice arguments.

EDELMAN J: In fact, it might even support reading “willing” and “unwilling” as being the converse of each other.

MR McDONALD: I understand what your Honours are putting to me, and they are true alternatives, our two constructions, and obviously the second one does proceed on the basis that “willing” is to be given the meaning that means the converse of “unwilling” ‑ ‑ ‑

GORDON J: I think I am putting it more directly than that, Mr McDonald. It seems to me that if you do read “willing” and “unwilling”, or, to pick up Justice Edelman’s way he put it to you, it seems that if the step‑down approach is right, then it actually compels the need to read “willing” as the converse of “unwilling”.

MR McDONALD: Yes, it is based on that. So, in a sense, it ‑ ‑ ‑

GORDON J: It may not be. We are talking about a choice, here, a constructional choice about how you read “willing” and “unwilling” as a matter of statutory construction, given the way in which the section is intended to operate. We have a scheme, we have 57, 58 and 59, as you point out in your submissions,

MR McDONALD: Yes. I understand the point your Honour is putting to me. I mean, accept, I think, that if you adopt what has been referred to as the step‑down approach, then that would support the view that “willing” is given a meaning which is the converse of the defined “unwilling”, I accept that. I wanted to – your Honour has pointed out the paradox that the Chief Justice referred to. I am not sure that our ground 2 necessarily completely resolves that paradox, but it does certainly lessen the impact of it in a case where there are conditions that can be imposed that would themselves reduce the level of risk down to less than a significant risk. The one – sorry, your Honour.

GLEESON J: I was just wanting to ask, the report as to probable circumstances if released on licence, does that – would you expect that to include the likely conditions as a subset of probable circumstances?

MR McDONALD: Yes. In our submission, that is ‑ ‑ ‑

STEWARD J: That leads to a different question. Who gets what report first? Do the experts get a report from the Parole Board about the likely conditions on release, and then assess risk, or does the Parole Board get the expert’s report and then work out what conditions might occur on release?

MR McDONALD: Your Honour, I think the structure of the section would suggest that before anything happens that could be considered part of determining the question, the medical reports would be obtained. What happens in practice is I think the medical reports are obtained and then the Parole Board reports are obtained and then often another round of medical reports and/or oral evidence from the two medical practitioners where their reports are tested and alternative hypotheses, including potentially what would happen if certain submissions were ‑ ‑ ‑

STEWARD J: So, in practice, evidence is led from the two experts about the probability of incapacity to control and unwillingness to control, having regard to the probable circumstances - or probable conditions on release?

MR McDONALD: That certainly was the case in these cases. Obviously if the court held – well, given that the Court of Appeal has held that the step‑down approach cannot be taken, it might now be objected if an attempt was made to obtain that sort of evidence that that is irrelevant.

STEWARD J: So on the Court of Appeal’s test, that would be ruled as irrelevant, would it?

MR McDONALD: It would.....I do not want to say that a person representing someone applying for release would not try to obtain that sort of evidence from the medical practitioners, but it would seem on the Court of Appeal’s approach that you look at the situation completely disregarding the effect of any conditions, the fact of effective potential conditions that would be imposed. So to ask the medical practitioners, “Well, wouldn’t the risk be reduced to less than significant if this person, for example, was on home detention with monitoring?”, would seem irrelevant on the Court of Appeal’s test. We obviously would say ‑ ‑ ‑

STEWARD J: All right, thank you, Mr McDonald.

MR McDONALD: I was going to go through the Court of Appeal’s reasoning at some length. I will perhaps skip over that to some extent, but what I do want to say about that in relation to ground 1 is that the Court of Appeal accepted that the principle of legality did have a role to play here and that irresistible clearness was required and that the conclusion that it reached had to be a necessary one and what their Honours relied upon substantially for that was the proposition that the regime could only be coherent in the sense of operational coherence if the threshold in 59(1a)(a) was the converse of the concept of “unwilling”.

I understand some of the questions your Honours have put to me perhaps suggest that but, in our submission, when one looks at the practical and real operation of the scheme it is not at all incoherent for the threshold test enlivening the discretion to release to be different and at a lower bar than the threshold test applicable to detention in the first instance.

That is essentially because both exercises of power involve the exercise of a discretion or evaluative judgment. So the mere fact that a person is in the sense defined and that is there is a significant risk of them acting in a particular way, does not require the court to make the initial detention order and likewise the mere fact that the condition in 59(1a)(a) is met would not require the court to make an order for release.

So, once it is recognised that there is a discretion at both ends, it is not a question of detained under one test, released under a different test, it is a matter of, in both cases, the court having to exercise its discretion, decide whether detention is appropriate and, in our submission, there is nothing incoherent about that.

It is, I think, suggested against us that the Court of Appeal’s regime is not incoherent. Our point is that the Court of Appeal set itself the task of demonstrating that departure from what it regarded as the ordinary meaning of the words was necessary, and appeared with irresistible clearness, and it did that by saying, in effect, our construction is incoherent, and in our submission it is not.

Can I say something briefly about the principle of legality? I am coming, really, to the point in outline paragraph 5, now. We have discussed this in our written submissions at paragraphs 31 to 35, and I think it is fair to say the principle of legality would be relevant to both ground 1 and ground 2, in construction.

The first thing we would say about the principle of legality is that the way that the question of construction arises in this case is perhaps somewhat different to what one typically sees in principle of legality cases. A common situation is where general words are used, and the question is whether a limitation on, or a carve‑out from those general words, should effectively be read in.

In contrast, in our submission, the plain meaning of the words used is one that impacts less adversely on the person at liberty in the sense that our construction of section 59(1a) produces a threshold for consideration that is easier for the prisoner to satisfy. So, it is not a question of us calling in aid the principle of legality to read down the ordinary meaning of words.....it is really a situation where there is an attempt to extend or give an artificial meaning or the defined meaning from 57(1) and to insert that into a provision where, on its own terms, it is not – section 57(1) does not say it is.....

So, contrary to a literal construction, and so, in our submission, it is not a situation where the principle of legality has already done all of its work, because the Parliament has addressed this situation. In the text of the law, the Parliament has actually been – has not addressed this situation. In fact, your Honours are being asked to, effectively, imply it from the context only.

So, we have set out the competing two views about the principle of legality which have arisen in this Court as to whether it has a role to play not only in relation to the threshold, but also in relation to degrees of interference with, or impact on, fundamental rights, and we would respectfully submit that there is a majority of the Court in the North Australian Aboriginal Justice Agency Case that would appear to support the approach that the question of principle of legality is relevant to construction choices about the degree or extent of impact on fundamental rights, as well as the threshold question of whether the legislation is intended to interfere with fundamental rights at all.

Obviously, in this case, the whole scheme is about interfering with the right to liberty, and the question is to what extent, in our submission, the principle of legality would favour a construction that involves a lesser interference, that is a greater prospect of release. As I say, that is relevant to both ground 1 and ground 2.

I will say, coming to point 6 of our oral outline, we have referred to the proposition that parliamentary debates should not be used to substitute for the words that are actually used. I have heard what has fallen from the Court about the way that one should construe the words actually used, but to the extent - we submit that the ordinary meaning of the words used denotes the construction that we have identified.

We have referred to Re Bolton; Ex Parte Beane and also Saeed v Minister for Immigration. I will not take your Honours to those passages. I think they are fairly well known. But ultimately, in our submission, one has to construe the actual text used and there is a textual difficulty with giving effect to the Court of Appeal’s construction, both because 57(1) defines “unwilling”, or has a deeming effect.....that up in relation to “unwilling”, whereas the word actually used in 59(1a)(a) is “willing”; and, secondly, 57(1) is expressed in its terms to only apply for the purpose of section 57.

Your Honours, we have also included in our additional book of materials an extract from the new Legislation Interpretation Act (SA), really to draw that to your Honours’ attention because it is a new provision for South Australia which deals with the use of extrinsic materials. I do not really want to say any more about it, but I think it reflects the Commonwealth provision substantially, but.....somewhat limited use that can be used to extrinsic material.

Could I perhaps come to ground 2? So, as I have said, this ground proceeds on the assumption that we have been unsuccessful in our first ground. So the assumption is that “willing” in section 59(1a)(a) is to be treated as meaning the converse of the definition of “unwilling” in 57(1) so that it requires inquiry into likelihood of a person failing to control their sexual instincts.

The effect of the construction that was adopted by the Court of Appeal is most clearly stated in the judgment of Justice Hughes, in first instance in Hore. Your Honours will find that at page 57 of the Hore core appeal book and, in particular, if I can invite your Honours to take up Justice Hughes’ judgment at page 57. Firstly, her Honour identified the DPP submission at paragraph 98 and then, really, the description of what that involves is at page 58, paragraph 99. Her Honour says:

On the approach advocated for by the Director, a risk that may be mitigated in a manner that is considered by the medical experts and the Court to be likely to be highly effective in reducing the risk posed by the applicant is nonetheless to be disregarded when determining whether the applicant is willing to control his sexual instincts . . .The imposition of conditions is only considered after the applicant establishes that he is willing and capable of controlling his sexual instincts. The effect of this construction is to place a significant – and in some cases it will be an impossible – burden on an offender.

That is perhaps another way of referring to the paradox the Chief Justice referred to. Then a sentence further on, her Honour says:

The task facing an applicant for release on discharge is to establish that they have, whilst detained, sufficiently reduced the risk that they pose notwithstanding the limited scope for effecting such change that the prison environment offers.

It is also, just to be clear about exactly what this entails, useful to look to paragraph 107 as well, which is on page 59, and her Honour says in the second sentence of that paragraph:

That question –

that is, the question of whether there is a significant risk:

is to be determined by reference to him without consideration of the effect of any conditions that may be placed upon his release.

So, in our submission, given that the purpose of this ‑ ‑ ‑

GORDON J: Is it not also – I mean, I had understood that if you – the other tension is that identified in paragraph 100. So it is not only without conditions, but it is because it therefore imposes a requirement, Justice Hughes suggests that:

the applicant must demonstrate a level of risk below that ‑ ‑ ‑

MR McDONALD: That is, below a significant level of risk?

GORDON J: Yes, and:

below that which can reasonably be expected to be controlled with conditions ‑ ‑ ‑

MR McDONALD: Yes. I must confess, I am not entirely sure exactly what her Honour means by that,

GORDON J: The way I had understood it, what her Honour was saying is not only do you look at it without conditions, but, in effect, it is a higher standard, because one must actually satisfy what has been described as this threshold which is a risk which itself must be achieved ‑ ‑ ‑

MR McDONALD: Without the helpful conditions?

GORDON J: Yes. In other words, it is a higher burden. The conditions, in a sense, then become not only not even taken into account, but largely irrelevant.

MR McDONALD: Yes. They have to be ignored. You almost have to assume the person is free in the community without any kind of constraints on them, even though constraints can in fact be applied, and would in fact be applied.

KEANE J: On that view, given section 58, which contemplates discharge of the order under 57, it would seem that section 59 is, practically speaking, a dead letter.

MR McDONALD: Well, the suggestion, I think, seems to be, if a person can choose to apply under 58 or 59, and that they might increase their chances of release if they can already satisfy the threshold test without regard to conditions, in that 59 can then deal with any residual risk that is less than a significant risk. That is, I think, the understanding of the Court of Appeal about how 59 would operate, but your Honour is right, in my submission, because it would mean that there is no real distinction between 58 and 59.

Both of them would have – I mean, they both have, verbally, the same test, but we would say that the difference between them is that one is providing for conditions on release, the other one is discharge without any conditions. So it makes sense – I mean, in the end, this is a practical and real exercise about risk to the community. It makes perfect sense for the effect of conditions to be taken into account.

GLEESON J: One wonders what the point of the conditions are if the applicant has demonstrated that the risk does not require mitigation by conditions.

MR McDONALD: Yes. My understanding of what the Court of Appeal accepted about that was that a person might not pose a significant risk but still might post a risk, and that the conditions were to be directed only at mitigating that very slight residual risk that is less than significant risk. I should say ‑ ‑ ‑

KEANE J: But if the person did not pose a significant risk, on what basis would the discretion in section 58 be exercised against this charge?

MR McDONALD: Well, I agree, your Honour. Perhaps the only basis is that the person could have applied under 59, in which case there would have been a chance to impose further conditions. But that – yes. I mean, in essence, I agree with your Honour’s observation that, really, there is not much point in having 58 and 59, one of which has conditions attached and one of which does not, unless they have some differential operation and, in particular, unless 59 can apply to a class of persons that 58 might not have resulted in release of – yes.

Our construction, we would submit, is also reinforced by the terms of section 59(4)(c)(ii), which have been referred to already. But that is the provision that requires the court, in considering release, to have regard to a parole board report as to the probable circumstances and we would say that that necessarily would have to take into account not only the fact that conditions would be enclosed, but the actual practical likely effect of them.

The other point to make is that our construction does not result in a sort of opening of floodgates where people are released even if the conditions would not be effective. The court, in deciding the threshold question and the exercise of the discretion, will take into account not only what the proposed conditions require, but also what mechanisms there are to enforce them or ensure that they will be complied with, what the likelihood of compliance and degree is and, of course, what the possible outcomes would be if there.....conditions. All of that is properly taken into account in the discretion.

I mean, there are practical examples. For example, Mr Wichen’s case, there is a positive finding that he would be a much greater risk if he was affected by alcohol and so a condition that would prohibit the consumption of alcohol, as well as the court’s findings as to the prospects that Mr Wichen would comply with that sort of condition and whatever other conditions might be put in place to monitor compliance with it, they
should be directly relevant to a realistic assessment of the.....release and, on the Court of Appeal’s approach, they would be simply disregarded.

The other thing that is never really made entirely clear by Justice Hughes or by the Court of Appeal or, in our submission, by the respondent, is what exactly the situation is that has to be posited. Obviously, one has to assume in.....terms of 57(1) the hypothetical situation where the person does have an opportunity to commit a relevant offence.

But I guess the question is at what level of abstraction is that question asked? So, if you take the example of Mr Wichen: if he is lying with a woman and they have both been drinking, that is a very different situation than Mr Wichen in circumstances where he is subject to a home detention order and a prohibition of alcohol, which the court finds he would comply with. If you then posit a situation where he has an opportunity to commit an offence, the risk assessment that has to be carried out is obviously going to be much different from doing that in an entirely abstract way divorced from the actual circumstances..... So, if the Court pleases, those are my submissions on ground 2.

KEANE J: Thanks, Mr McDonald. Mr McDonald, you have frozen – can you hear us?

MR McDONALD: I can your Honour, sorry, I am just adjusting my computer so that I can sit down and still see the ‑ ‑ ‑

KEANE J: Okay, thanks, Mr McDonald. Yes, Mr Wait.

MR WAIT: Thank you, your Honour. Section 59(1a) falls to be construed in the context of the legislative scheme provided for by Division 5, Part 3 of the Sentencing Act and ground 1 concerns whether the Court of Appeal was correct to hold that the word “willing” in section 59(1a) bears a converse meaning of the term “unwilling” as defined in section 57 or whether, contrary to that holding, “willing” should be given its plain meaning.

Although the starting point for analysis, in our submission, is that although “willing” is not a defined term in the Sentencing Act, that Parliament, by the adoption of the antonym of the word “unwilling” within the same scheme, by the selection of that word, has indicated its intention that that word should bear the converse meaning to the defined term.

Now, the appellant submits that the Court of Appeal’s construction is a strained one and it cannot be regarded as falling within the range of ordinary meanings of the word “willing”. In response, South Australia says that the appellant overstates any inconsistency or tension between the converse defined meaning and the ordinary meaning.

South Australia accepts that the test of willingness looks to subjective preparedness and we do not accept the dichotomy proposed by the appellant between the plain meaning being a subjective test, and the converse defined meaning being an objective test. However, South Australia says that the plain meaning of “willing” is silent about the circumstances in which a person’s willingness is to be assessed, but the adoption of the converse meaning does not incorporate any extraneous or alien considerations but rather simply narrows the focus of the assessment to provide guidance to those administering the Act and in a way that is perfectly consistent with the purpose of the scheme as well.

In that way South Australia says that the word “willing”, so construed, operates in effect as an instruction to those administering the Act about the way to test the person’s state of mind whilst in custody, but in giving consideration to that person’s state of mind in the circumstances where an opportunity to offend is presented.

EDELMAN J: It is an instruction as to how willing you need to be.

MR WAIT: Yes, your Honour. The instruction goes to, we would say, probably at least two features of significance, one of which is setting the standard of significant risk, and we would embrace some of the observations of your Honour Justice Edelman that in the absence of such a test the practicalities are that it is a difficult test at large to be applied of willingness, but it also focuses the attention on the time at which an opportunity might be given. Now, that is not outside the plain meaning of “willingness”. It is simply a more targeted and focused analysis or assessment of the meaning of “willingness”.

Although the term “unwilling” is defined on its terms for the purposes of section 57, that term then is used, as your Honours have been taken to, throughout the division, and it is used consistently in sections 57, 58, 59 and 62, and it is not suggested by the appellants, with respect, correctly, and South Australia says it could not sensibly be suggested that the word “unwilling” as it appears in sections 58, 59 and 62 takes a different meaning to its defined meaning in section 57.

GORDON J: I think Mr McDonald accepted it had the same meaning throughout. There may have been debate on the way through, but I am pretty sure that that position is now resolved.

MR WAIT: Your Honour, that is correct, and I am not seeking to cavil with Mr McDonald on that issue. I am simply noting that the fact that – we cannot place too much weight therefore in this scheme on the fact that the defined term of “unwilling” in section 57 is said to be in this section “unwilling” as defined in circumstances where that very word “unwilling” is then used throughout the division in the same way, despite the absence of an express definition.

So it follows, therefore, that to construe “willing” in section 58 and 59(1a) as a converse ensures that the inquiry that is undertaken by the two medical practitioners will marry up, will coincide, with the threshold test required of subsection (1a) and sections 58 and 59, and in that way, we submit that the Court of Appeal was correct in suggesting that their construction of “willing” added to coherence of the scheme.

Now, the appellant attempts to mitigate the force of this submission by suggesting that the medical practitioners’ reports are directed to the exercise of the remaining discretion, to some sort of residual discretion, yet we submit that that is unpersuasive, because it would leave the court without expert assistance on the express threshold test that the court is to consider.

The appellant also seeks to undermine the contextual reliance on coherence by the Court of Appeal, on the absence of an express threshold requirement in section 57, and the appellant is quite correct to note that section 57 does not, on its face, require as a prerequisite to the making of an order for detention that there will be a finding of unwillingness or incapacity. But it has long been held in South Australia that that is an implied threshold requirement, and the authorities that we have collected in paragraph 44 of our written submissions demonstrate that that is a long‑held position by the South Australian Supreme Court, that a finding of unwillingness or incapable is an implied prerequisite.

Once that implied prerequisite is understood as being a feature of the operation of the scheme, it can be seen that the operational symmetry that the Court of Appeal refers to is more obvious, because in both section 57, therefore, we have a threshold requirement of a finding of unwillingness or incapability, incapable, in addition to a discretion, and in sections 58 and 59, then, we have in express terms a threshold requirement in the inserted subsection (1a) coupled, again, with a discretion. So, there is a symmetry to that scheme.

The appellant seeks to diminish the significance of that coherence in the scheme by, in our submission, focusing on the discretionary features of section 57 on the one hand, and then sections 58 and 59 on the other. We would embrace some of the observations in argument from Justice Edelman and my friend where it is suggested that – sorry, in our submission, we would say that whilst there is a discretion in sections 57, 58 and 59, they are relatively constrained, and it will be a very rare case where either under section 57, if we have a finding of unwillingness or incapability, that there will not be an order for detention and likewise, it will be a rare case, in sections 58 and 59, if there is a finding of willingness or capability, that there will then not be an order for discharge or release. So, we do not shy away from the existence of those discretions, but we do say that they should not be overstated in the operation of the scheme overall.

We turn then to purposive indicators. The purpose of the scheme is plain from the terms of sections 57(8), 58(3) and 59(3) which identify the paramount consideration of the protection of the community. In our submission, the targeted nature of the test of “willing” that emerges if that term is understood to be the converse of “unwilling” more closely aligned with the statutory purpose because a test – whether a person would be willing at the very moment when the harm that they might present to the community is imminent – that is in the face of an opportunity to re‑offend.

Justice Hughes at first instance in the decision of Hore at paragraph 91, which is at page 56 – I do not need to take the Court to it – in the core appeal book – said that:

The applicant’s willingness is of concern to the community at the point of opportunity, rather than at the point at which the applicant is detained and contemplating release.

If I turn then to the principle of legality ‑ ‑ ‑

STEWARD J: Just before you do that, can I ask you a question? You may wish to answer it a bit later on, Mr Solicitor – and that is, in circumstances where the court is obliged under section 59(4)(c)(ii) to have regard to a parole board report as to the probable circumstances of the person if the person is released on licence, why one would then, for the purposes of considering – or the experts considering the issues of capacity and unwillingness – that expert report would be limited to an inquiry into that capacity and that unwillingness if they are released unconditionally?

MR WAIT: Your Honour, I certainly will come to answer your Honour’s question. That goes more directly to the submissions I seek to make on ground 2.

STEWARD J: Answer it then, do not ‑ ‑ ‑

MR WAIT: The very short answer, your Honour, is we do say that the consideration of willingness or capability in the threshold test in section 59(1a) is required to be undertaken in the absence of conditions, but I will seek to elaborate on that.

STEWARD J: Thank you.

MR WAIT: Thank you, your Honour. So, as to the principle of legality, this is not a case where the respondent submits that the principle of legality is simply to be put to one side because there is some high‑level purpose that can be discerned. For example, section 3 of the Sentencing Act refers to the purposes of the Sentencing Act being to protect the community. Now that is a statement of purpose at a very high level and we do not seek to rely certainly only on a broadly stated purpose as a way of defeating the operation of the principle of legality in this case.

Rather, we say that the principle of legality in this case is fulfilled because a closer and more regularised consideration of text, context, purpose makes plain that Parliament in this instance has directed its attention to the effect that the amendments will have on the liberty of the subject.

EDELMAN J: That does run into some degree of conflict then with your submissions on the second ground.

MR WAIT: Your Honour, I accept, as my friend did, that there is a tension between ground 1 and ground 2. As my friend did, I also resist both grounds and certainly submit that the tension is not an irresolvable one and that in fact they can logically be sustained together.

EDELMAN J: Well, on the principle of legality issues, once you accept that the intensity of the application of that principle increases as one is dealing with greater infringements of liberty or more important rights, as this Court said on a number of occasions, then your submissions on ground 2 become deeply problematic because then you have a circumstance where an offender is having a very significant deprivation of liberty by reference to circumstances that one knows will not exist.

MR WAIT: Your Honour, I cannot disagree with what your Honour said in the sense that if the Court was to find in our favour on ground 1 and against us on ground 2 then the construction of ground 2 would be a release valve, if you like, for the operation of the principle of legality with respect to ground 1. So I do not shy away from that, but I also do not of course make any concession on ground 2, and we do have submissions that I certainly will advance shortly on ground 2 that we maintain.

Just coming back then to the manner in which we say that the Parliament can be seen to have directed its attention to the fact that the scheme requires consideration not only of the subjective state of mind at the time that the assessment is taking place and in the context of confinement, but also refers to the subjective state of mind in the context of an opportunity to offend.

We have a discussion which I do not need to take the Court to, but there is a build‑up in the cases of Schuster which is in the joint book of authorities at page 605 which then flows through to a third consideration in the judgment of Humphrys in the Court of Criminal Appeal. We then see yet a further consideration of the paradox that Chief Justice Kourakis refers to in the Wichen judgment itself.

Your Honours, what is noteworthy is probably the factual circumstances that presented themselves in the case of Humphrys, and again I do not really need to take your Honours to the passages.

GORDON J: This is the single justice matter of Justice Kelly?

MR WAIT: Yes, your Honour. Yes, that is at JBA – the judgment is at JBA 560, but there are some findings there that are pertinent. So at page 566 of the joint book of authorities, paragraph 31, there is a finding by Justice Kelly that whilst in prison Mr Humphrys was motivated to cease his sexual offending.

GORDON J: Did you say paragraph 31?

MR WAIT: Yes.

GORDON J: Yes, I see.

MR WAIT: Let me just make sure I have the correct reference.

KEANE J: There are a number of Humphrys decisions. I do not think that is the decision of Justice Kelly, is it?

MR WAIT: I am sorry, your Honour. There is a decision in the joint book of authorities of Justice Kelly. It commences at page 559.

GORDON J: It is at tab 12, the one I have, [2018] SASC 39.

MR WAIT: Yes. Thank you, your Honour. Now, it is at paragraph 31 that I was referring to, which is over at page 566, and the evidence there of the expert was that Mr Humphrys was:

motivated to cease sexual offending –

“presently” motivated to do so. Then, over at paragraph 37, page 568, we see a finding, however, despite the fact that he was presently motivated to cease offending, the experts agreed that he would reoffend if he had an opportunity to do so, and that he was therefore “unwilling” for the purposes of the scheme.

Then third, we get the statement at paragraph 50, which is appeal book 571, which really is going to the paradox, and that is at paragraph 50 where the psychiatrists are expressing caution that the applicant would not be given the same – sorry, if he was not given the opportunity now to demonstrate his willingness, then it is unlikely that he ever would be in a better position. Therefore, that feeds into the exercise of the discretion at paragraph 57, that Justice Kelly exercised the discretion favourably to Mr Humphrys, despite the fact that he was unwilling in accordance with the statutory term.

Now, it was that case that was the impetus then for the amendments to sections 58 and 59, and that is apparent from the second reading speech. If I might take the Court to the second reading speech, it is at page 669 of the joint book, and we can see, halfway down the page:

That this bill be now read a second time.

We can see the words of the Attorney‑General, Ms Chapman:

I introduce this bill, which amends the Sentencing Act 2017, to strengthen the provisions relating to the release of convicted sex offenders who are incapable of controlling, or who are unwilling to control, their sexual instincts. Members will appreciate that amendments have been required as a result of the application for release on licence granted by the Supreme Court on 27 March –

So that is a reference to Justice Kelly’s decision. If we turn over the page and we go to the penultimate paragraph on page 670, we can see a statement by the Attorney‑General:

This is a bill that is designed to fix up a piece of legislation that the opposition, then government, had introduced into this state. It was inadequate. It needed fixing -

because, it is, of course, this is the Bill that introduces a threshold requirement. Parliament has determined here that it was inadequate under the scheme for somebody to be assessed as “unwilling” and yet nonetheless for there to be a decision to release. So, then, we have an insertion of the threshold. If we go over to the top of page 671, we see:

The amendments posed in the bill will ensure that those who have been and will be granted an order for indefinite detention to be released . . . will have to reassure the court and relevant experts that they are suitable to be released.

The bill will contribute to the increased safety of the public and provide victims and the community at large with greater security . . .

Before making such an order, the court must consider the reports of at least two legally qualified medical practitioners . . . A person is regarded as unwilling . . . if there is a significant risk that the person would, given an opportunity . . . fail to exercise appropriate control –

Then, in the next sentence – this is the sentence that we place some weight on:

In some cases, this may not be an immediate risk. However, we must be vigilant to those who will bide their time and potentially risk society in the future.

So we see, therefore, in the very discussion about the operation of the scheme, the significance not only of assessing subjective willingness at the time that an assessment is taken, but at the time that opportunity presents itself outside of incarceration in the community.

Now, I also should note for completeness that if we are reading through the second reading speech that statement does in fact fall within the discussion about section 57 discretion, but we say that nonetheless it is abundantly clear that the intent of the scheme is to safeguard against risks, not only while somebody is being assessed for the purposes of an application, but also risks that arise in the face of an opportunity.

So, your Honours, it is for that reason that we say that this is not a case where it can be said that there was some inadvertence or – that this passed the Parliament unnoticed, because the legislative amendments that we have go to insert the statutory precondition, they reiterate the safety of the community and they also insert subsection (4a) into sections 58 and 59, which provides that the court:

must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.

We say that that is a clear indication that Parliament has considered the paradox that it is difficult for somebody to demonstrate willingness from within the confines of prison, and yet it has considered that and it has answered that by saying, “Well, we understand that, but we, as a matter of legislative policy, are seeking to prioritise reducing the risk that future potential victims might be subject to further offending against the risk that this scheme might lead to people being incarcerated despite the fact that they have not committed offences”.

KEANE J: Mr Wait, can I just ask you a question? In Justice Hughes’ judgment in the Hore matter at paragraph 90, there is an excerpt from the second reading speech which is footnoted as being made in the Legislative Council on 31 May 2018. It is properly to the same effect as what you have just taken us to, but is that right? Is what appears at paragraph 90 part of the second reading speech?

MR WAIT: Your Honour, I think that we simply have a reference to what I understand is a speech in exact – precisely the same terms, but in a different chamber.

KEANE J: Right.

MR WAIT: I think the reference at paragraph 90 is contained in the joint book of authorities at pages 664 and following. There we have the second reading speech of Mr Lucas, the Treasurer ‑ ‑ ‑

KEANE J: Okay.

MR WAIT: ‑ ‑ ‑ perhaps I could not go so far as to say that the speeches are identical. In fact, I know they are not identical because there are some more interjections and discussions in the Attorney’s presentation of her second reading speech, but I do not believe they are different materially in their effect.

KEANE J: Yes. But, insofar as the speeches referred to:

the Court –

having:

expressed the view ‑

that reference to “the Court” is a reference to the decision in Humphrys that you just have taken us to?

MR WAIT: Yes. Yes, your Honour. I am confident that the focus of both second reading speeches was directly as a result of the Humphrys decision.

KEANE J: Okay. Is it fair to say that the decision in Humphrys was that, while a finding of “willingness” could not be made, the discretion to grant release on licence was exercised on the footing that the risk to the community could be sufficiently mitigated by the controls imposed by the conditions?

MR WAIT: Yes, your Honour, yes.

KEANE J: Is it not a different thing to say, there is a finding of unwillingness and necessarily therefore a risk – a significant risk – on the one hand, and on the other hand that the support of “willingness” such as would reduce the risk so that it ceases to be significant – is there not a difference between those approaches?

MR WAIT: So there is, your Honour. I think this brings me to ground 2, but I am ready to come to ground 2 in any event, because there is a tension, in our submission, really between what we say are the two stages of ‑ ‑ ‑

KEANE J: In relation to that, can I ask you, it does seem that the Court of Appeal in each of these cases – and certainly quite clearly in the judgment of Justice Hughes, perhaps more clearly than in the judgment of the Chief Justice, but it is there nonetheless – that section 59(1a) seems to have been read as if it requires almost separate consideration and separate findings, not just as a condition of the exercise of the power to release, but really as a condition of the consideration of the application at all.

MR WAIT: Your Honour, I certainly accept that the findings of the Court of Appeal, consistent with the trial judge in each matter, suggest that the analysis needs to be separated out between the meeting of the threshold and then the question ‑ ‑ ‑

KEANE J: But there is only one determination ‑ ‑ ‑

MR WAIT: Yes, your Honour.

KEANE J: ‑ ‑ ‑ that the release is either granted or not. Mr Wait, we might take the Court’s morning break now.

MR WAIT: Thank you.

KEANE J: Adjourn the Court please, for 15 minutes.

AT 11.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

KEANE J: Yes, Mr Wait.

MR WAIT: Yes, your Honour. If I can pick up then, with ground 2, ground 2, of course, concerns whether the Court of Appeal was correct to hold that the assessment of willingness is to be undertaken without regard to potential licence conditions that the Parole Board may fashion under section 59(8). Now, the respondent considers, as a – in the sense as a housekeeping issue, that the terms of ground 2 are too broad. Ground 2 is articulated on the basis that the Court of Appeal fell into error because the test was to be applied without regard to the likely circumstances of the person if released on licence, or the effect of licence conditions that might be imposed.

Now, the Court of Appeal did not, in fact, hold that the test should be applied without regard to likely circumstances. They did, however, hold that the test should be applied without regard to the licence conditions. There is an important difference there in the sense we say that the Court of Appeal was not suggesting that this – that the test of willingness ought to be conducted in an entirely abstract way. The test of willingness is to be undertaken in real‑world circumstances of opportunities to offend that might present themselves ‑ ‑ ‑

GORDON J: My problem, Mr Solicitor, is how can you have, under 59, the likely circumstances, without considering the effect of licence conditions?

MR WAIT: Your Honour, I certainly accept that there is an intersection in the way that a person released on licence will conduct themselves if they are subject to licence conditions. However, I think that there is a reason why the legislature has, in our submission, framed section 59 so as that that threshold assessment is undertaken in the absence of the licence conditions, and – I suppose ‑ ‑ ‑

GORDON J: There are really two questions. There is what Justice Keane put to you before the break - it is one determination, why do we have this threshold if it is one determination, and then second, if it is one determination, how can you consider likely circumstances without having regard to the effect of licence conditions because they will be the circumstances that this person will find themselves in.

MR WAIT: Your Honour, as to the first question, we say that although there is the single exercise of power or the single decision, that there is no barrier to that decision being subject to there being a threshold requirement that is met as a precondition to that exercise of power ‑ ‑ ‑

EDELMAN J: But the threshold requirement, on your submission, is just a nonsense. I mean, the Supreme Court is trying to determine whether a person is capable of controlling and willing to control the person’s sexual instincts in circumstances that are known not to exist.

MR WAIT: Your Honour, perhaps I can answer – or hope to answer both of your Honour’s questions by going to the mischief that we say that the amendments were intended to address because if I could take the Court to the decision of Humphrys again, but this time to the Court of Appeal decision which is at JBA 538 and just if I ask your Honours to note the date on the cover sheet of the judgment, the first date under the quorum being 23 May 2018, and the significance of that is that when I come back to the second reading speech in a moment you will see that the debate proceeded in the Parliament very shortly thereafter.

GORDON J: So, I am clear about the point being made here, the debate in the House was after the hearing but before judgment in the Full Court?

MR WAIT: Yes, that is correct, your Honour.

GORDON J: The Court of Criminal Appeal?

MR WAIT: Yes, your Honour, and so ‑ ‑ ‑

GORDON J: So what is the significance of that?

MR WAIT: Well, the submission that it put at the hearing in Humphrys is recorded at paragraph 3 of their Honours’ judgment and it is noted there were three grounds. The first ground was that:

the judge failed to have regard to the risk that Mr Humphrys would deceive or manipulate those supervising him into allowing him an opportunity to offend -

Then if I could go forward to paragraph 29 your Honours will see the report of the Parole Board. So that is page 549 of the JBA. In January 2018 the Parole Board had given a report and the second underlined passage in the longer passage set out says:

In the opinion of the Parole Board, Mr Humphrys is an intelligent man who has learned to represent himself favourably to authority. As a result of interaction with Mr Humphreys over many years, and including interviewing Mr Humphrys, we consider that he remains less than honest about his sexuality and continues to minimise and rationalise –

Then the last three lines of that passage:

In our view, the resources either through the Offenders Management Plan or Community Corrections, are insufficient to manage that level of risk.

Now, if I then can go to the second reading speech, which is at page 671 of the book, and again, I will go to the House of Assembly speech, if we go to the bottom of that page, the very last ‑ ‑ ‑

GORDON J: What page of the actual assembly report is it, at the top right?

MR WAIT: Page 583.

GORDON J: Thank you.

MR WAIT: The last two lines of that page:

In the past, the court has expressed the view that, despite the risks an offender might pose to the safety of the community, it was appropriate to release the offender into the community on licence as the community could be adequately protected through a number of steps to be taken by the Department for Correctional Services and other agencies to manage those risks.

This bill amends the Sentencing Act to address concerns that have been raised about this approach. The reforms create a two‑step process.

So, in our submission, what the Parliament has done is it has said, well, we want a threshold test to be applied first about capability – willing or capable – and we want that to be done separately to considerations of conditions, because, in effect, the Parliament is sceptical that conditions will either be adhered to or enforced. There is a further element that we would place some reliance on, which is that the threshold test about capability and willingness is - it speaks somewhat generally - focused on what might be described as internal factors about a person’s likelihood of reoffending.

The imposition of conditions is often focused on external factors, and there is a tension, we say, in the appellants’ submission, because the external factors that are often said to alter the fashioning of conditions will be directed specifically to attempts to rule out an opportunity to offend. So, conditions will be imposed about not attending close to a school, not taking drugs or alcohol, and so on and so on. It is very often - in fact, normally, we would say, those conditions are focused on external factors and reducing an opportunity to offend.

Now, if conditions are tailored in a very effective way so as to effectively rule out an opportunity to offend, then assessing those at the time of assessing the threshold is in fact going to butt into the test required to be assessed at the threshold, which is, what happens when the offender is presented with an opportunity to offend? So there is a ‑ ‑ ‑

KEANE J: In terms of Humphrys, the passage you have taken us to from the decision of the Court of Appeal, there was a particular problem with him in that the passages you have taken us to suggest that he was an intelligent and manipulative person who was actually disposed to, perhaps, thwart the conditions.

MR WAIT: Indeed.

KEANE J: It is a different question to say of someone who is not that kind of person, that the question of willingness cannot reasonably and sensibly be approached on the footing that the support of conditions such as home detention, restrictions about alcohol, will thereby have that person’s willingness bolstered so as to be not a significant risk. It is different.

MR WAIT: I have to accept what your Honour puts to me, that there will be certainly a spectrum of various offenders to which this will apply.

KEANE J: This amendment was a response to Mr Humphrys at first instance, and he was a very special case.

MR WAIT: Your Honour, there are specific features about Mr Humphrys that made him a particularly risky person in terms of avoiding effective conditions.

KEANE J: Thwarting - thwarting the effective controls.

MR WAIT: I accept that, your Honour, but I probably would not accept that that was an entirely rare circumstance. But it is only a cohort of offenders to whom the scheme would relate. I certainly have to accept that.

KEANE J: There are certainly no findings to that effect in relation to either Mr Hore or Mr Wichen.

MR WAIT: I think that is correct, your Honour. I am just trying to run my mind back through all the relevant facts. But I think that is correct.

KEANE J: Well, if there had been – if there had been findings to that effect both primary judges would have come to very different views about willingness, I think.

MR WAIT: Your Honour, that may be so. There is a second limb here, though, which is expressed in both the decision of Humphrys – it was before the court in Humphrys and then is picked up in the second reading speech which is it is not only about a capacity to thwart on the part of the prisoner, there is also a capacity to enforce and to supervise. That is something that Parliament is aware - that there are real‑world limitations that apply to and which, in our submission, Parliament has sought to address by breaking this down, the first question being: would a person offend if they were given an opportunity? It is important, we say, that that test not be undermined by feeding into that test all of the things that you would do to deprive an opportunity.

STEWARD J: Mr Solicitor, this passage from the second reading speech may well support a two‑step process, but reading it, there is nothing in it that says that for the purposes of the threshold – as you call it – one would test the issue of risk on the basis of unconditional release and only unconditional release, as distinct from release on probable conditions. It does not say that.

MR WAIT: I have to – I accept that, your Honour. It does not say what we – it does not expressly tease out the construction that we advanced, certainly in – so there is a sort of process of inference that I am seeking to draw from.

EDELMAN J: Can I just understand - the effect of your construction would be, would it not, that if the Parole Board had approved release subject to conditions and reports by experts had come to the conclusion that those conditions were such that the risk of offending was negligible or almost not existent – albeit that without those conditions there would be a significant risk – the effect of your construction is that a person who had negligible or non-existent levels of risk would be detained?

MR WAIT: Your Honour, I do not think I can shy away from what your Honour puts, in the sense that that would be the extreme scenario in the case that would present itself. Our submission really – I am certainly not trying to avoid your Honour’s question, but a very real‑world example might be the circumstances of Mr Wichen’s offending, which have seemed to be generally, if not invariably, associated with the use of drugs and alcohol.

Now, a condition might be placed on Mr Wichen not to take drugs and alcohol but, in our submission, what the Parliament is doing by breaking this down into the two steps is saying, we do not necessarily trust that that condition is going to be adhered to, or is going to be enforced, and therefore we need to look at ‑ ‑ ‑

GORDON J: Where do we find that in the statute?

MR WAIT: Your Honour, the statute ‑ ‑ ‑

GORDON J: It seems to be it is the reverse, which is the point I think a number of us have been putting to you. We have an inquiry which says, are there conditions that are capable of being imposed, and what are they? Then, when I come to assess this question about whether or not the court may authorise release on licence subject to condition, I have to satisfy myself of the relevant matters set out.

GLEESON J: Including that he does not meet the condition.

GORDON J: That is right. If one goes to these ideas, it is not only the ones that are set out in (4), but also the other ones that are set out in terms of what might happen. We do not find anything there about cost. We do not find anything there about – do we?

MR WAIT: I think that there is actually a provision about cost, your Honour.

GORDON J: There is, under (4)(d):

evidence tendered to the Court of the estimated costs –

Now, one does not elevate that to a sort of second limb, as you put it, giving rise to some justification by taking one of the various factors that have been taken into account, do we?

MR WAIT: No, I do not think I could rely on that paragraph.

GORDON J: So, I come back to my question that I put to you in relation to this one. I, on my part, find it difficult to suggest that there is this two‑stage process, when there is to be one determination and we have prescribed statutory criteria and a mechanism to ensure that the court has before it, as you would have it, both independent reports from two sources directed at the same question and giving rise to the opportunity for the offender to put whatever they wish to put forward directed at the same questions.

MR WAIT: Your Honour, I see the force of what your Honour puts against me and really the force of the appellants’ argument on ground 2. I think I probably would be repeating myself if I simply refer to the structure of clause (1a) being inserted where it has been. The reference in the second reading speech to there being two steps and then to the tension between, on the one hand, a test where somebody is given an opportunity to offend and, on the other hand, having to build into that assessment all of the things that would deprive a person of having that opportunity, so, there is at least a tension, if not - we would probably not prefer to say an incongruity between those two factors.

GORDON J: Can I ask one other question and then I will be quiet? In relation to the (1a) sense, it says “a person detained in custody cannot be released on licence”. It tells you up front, does it not, that this threshold itself must take into account “on licence” unless certain things are satisfied. So, even if you took it at face value and said the onus is on this offender, the inquiry is not at large. It is “released on licence”. It is a matter of statutory language. I do not understand how you can split it up in the way that is being proposed.

MR WAIT: You are right. I think I can only say that yet again I can see the relevance of that feature. In our submission we would suggest that, that, along with some of the other matters that your Honour has raised are outweighed by the references to purpose and context that we have taken the Court too.

GORDON J: Thank you very much.

MR WAIT: Unless there any further questions, they are the submissions for South Australia.

KEANE J: Thanks, Mr Solicitor. Mr McDonald, anything in reply?

MR McDONALD: No, thank you, your Honour.

KEANE J: The Court will consider its decision in relation to this matter. The Court will now adjourn until 9.30 am tomorrow for the pronouncement of orders. Adjourn the Court, please.

AT 11.56 AM THE MATTER WAS ADJOURNED