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Hore v The Queen; Wichen v The Queen [ 2022] HCATrans 18  (21 February 2022)

Last Updated: 22 February 2022

[2022] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A22 of 2021

B e t w e e n -

DARRYL MARTIN HORE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A23 of 2021

B e t w e e n -

JACOB ARTHUR WICHEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE AND BRISBANE

ON MONDAY, 21 FEBRUARY 2022, AT 9.30 AM

Copyright in the High Court of Australia

____________________

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR G.P.G. MEAD, SC appears with MR S.A. McDONALD, SC for the applicant in each application. (instructed by Legal Services Commission (SA))

MS L.M. BOORD, SC appears with MS Z.E.M.H. SMITH for the respondent in each application. (instructed by Office of the Director of Public Prosecutions (SA))

GAGELER J: Ms Boord, we would be assisted by hearing from you first.

MS BOORD: May it please the Court. This is a challenge to the statutory test for release and at the heart of the challenge – that challenge – is the definition of the word “willing” – so, special leave questions 1 and 2, ground 1 of the appeal – and whether the statute contemplates a step‑down approach being included into a consideration of that definition – so, special leave question 3, ground 2.

It is the respondent’s position that neither of those challenges identifies a point of principle that requires the intervention of this Court. Save for the harsh nature of that regime, there is nothing in the applicant’s argument that is controversial. The point is not novel. There is no difference or dispute in the way in which our Supreme Court have been dealing with this issue. In the three cases in which the definition has required interpretation, there have now been six Supreme Court judges who have all concluded that the word “willing” is the converse of “unwilling”.

The respondent accepts from the outset that the result of this statutory test is that many offenders will find themselves, to quote our Chief Justice, “trapped in a paradox”. The result of this legislation has not been lost on the six judges who have heard and determined that the word “willing” must have been intended to mean the converse of the word “unwilling”.

EDELMAN J: Ms Boord, do you accept the assumption that seems to have been made in a number of these decisions that the legislative definition of “unwilling” is not the same as the ordinary meaning of the word?

MS BOORD: I do.

EDELMAN J: Why is that so?

MS BOORD: Of “unwilling”, because it is defined under the Act ‑ ‑ ‑

EDELMAN J: But why is that definition different from the ordinary meaning of “unwilling”?

MS BOORD: Because Parliament has given it a special meaning, with respect.

GORDON J: I am sorry to interrupt - it is only given a special meaning for the purpose of section 57. It says, “in this section” in contradistinction to 56 which says, “application of the division”.

MS BOORD: That is right, and if I can perhaps take the Court through how we say that the only way that this legislation can make sense and work in a coherent manner is if the converse is given to the word “willing”, even though it is prefaced, that is, the definition of “unwilling” is prefaced with the words “in this section”, and that is due to the respondent’s argument that not only does the word “unwilling” then carry through to sections 58 and 59 in the Act, but also, because it is inextricably intertwined with the test that is required and an assessment of the person’s risk before release can be contemplated.

If I can take the Court to what we say is the starting point of this consideration of the definition, which is that section 57(7) permits the Court to:

order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.

So, section 57(1) contains various definitions which, on their face, are given for the purpose of section 57 – including that definition which exists for the very purpose of delineating a class of person susceptible to an order under section 57.

GAGELER J: Ms Boord, at this point I appreciate that you are seeking to address the merits of the applicant’s argument. Really, in answer to Justice Edelman’s question, I think you are accepting that the argument you seek to present is not inevitable by reference to the text of the provisions. You need to guide us towards a contextual meaning of the language in subsequent sections. If we are of the view that the applicant’s argument is at least arguable, why should not special leave be granted?

MS BOORD: Because this legislation only pertains to a regime that exists in South Australia. It does not have general importance for the rest of the country.

EDELMAN J: But, Ms Boord, as to the question of general importance, what we are talking about in this regime – the central question – is the meaning of the word “willing” and your submission is that a criminal statute has defined the meaning of the word “willing” in a way which suggests that there is a capacity or lack of free will which seems to be something that runs against almost the entire tenor of the criminal law. That seems to be a question of some significance.

MS BOORD: We say not in the context of the statutory regime in South Australia, your Honour.

EDELMAN J: In other words, your submission is that there can be – a person can have complete free will and complete desire to do something, but there will remain a significant risk that despite that free will, the person will still offend.

MS BOORD: Because of the statutory definition of “unwilling”, yes, your Honour.

EDELMAN J: The statutory definition of “willing”, on your approach, is binary, then, that a person either has will or they do not - there are no degrees of will.

MS BOORD: No, because the statutory definition of “unwilling” is inextricably linked to a risk assessment - I will not take the Court through what that risk assessment is, it clearly knows what it is - but because it is inextricably linked to an assessment that is undertaken, the word “willing” then naturally must mean or must be interpreted as the opposite of the defined “unwilling” under the statutory regime. So, it has taken on a special meaning or interpretation of its own, as opposed to the ordinary use of the word, or dictionary definition of “willing”.

That can only be so when one goes through the rest of the statute and sees that the clear intent of.....must have been that the word “unwilling”, as it is defined in section 57(1) is naturally the yin and yang to the word “willing”.

EDELMAN J: Could you perhaps just give me an example or a circumstance where, under the ordinary definition of the word “willing”, its dictionary meaning, a person might be willing to control sexual instincts and yet there will remain a significant risk that the person will not control their sexual instincts, despite the will to do so. How does that work, on the ordinary meaning, on your approach?

MS BOORD: Sorry, can your Honour ask that question again?

EDELMAN J: Your submission is that the statutory definition of “unwilling” is different from the ordinary meaning of the word “unwilling”. What I would like to know is how, on the ordinary meaning of the word “unwilling”, a person might be unwilling to control their sexual instincts and yet there not be a significant risk that the person would have the opportunity – or with the opportunity commit a relevant offence. In other words, what is the difference between the ordinary meaning and the statutory meaning?

MS BOORD: Between “unwilling” – or both the words “unwilling” and “willing”?

EDELMAN J: Let me just put it in slightly different terms. If the statutory definition is different from the ordinary meaning, that must mean that a person could be willing to control their sexual instincts and yet there would remain a significant risk that the person, given an opportunity, would fail to exercise appropriate control. In other words, under the ordinary meaning, the person is willing and yet the statutory definition of “unwilling” would be satisfied.

MS BOORD: Yes.

EDELMAN J: Now, in what circumstance could it arise that a person has the will to do something and yet there is still a significant risk that the person would, given an opportunity to commit the relevant offence, fail to exercise appropriate control? Is that because despite their will there is some part of their will that will not operate?

MS BOORD: Because when the statutory definition is applied – and this assessment of whether or not there is a significant risk, if presented with an opportunity to offend, they would offend – in my respectful submission, that is the test and that is the risk assessment that attaches to “unwilling”. It is not the test that the ordinary meaning of “unwilling” applies, because – yes, with respect, that is the purpose of the two psychiatric reports – to make an assessment about, putting aside whether they say they are willing, that ultimately once that risk assessment is applied, they are not willing, as per the definition – pursuant to section 57(1).

GORDON J: Ms Boord, may I just ask you a question about ground 2?

MS BOORD: Yes.

GORDON J: It is put against you that, in a sense, 57, 58 and 59 are a stepped analysis, and it is put against you that despite the express terms of section 59(4)(c)(ii) read together with subsection (7) requiring consideration by the court of release of conditions on licence, the approach adopted by the two Full Courts was wrong. Do you accept that that is open, on the text, that is, the argument against the construction ultimately achieved?

MS BOORD: No, I do not, for this reason. We say the Court of Appeal’s approach is supported by section 57(8), section 58(3) and section 59(3), which require paramountcy to be given to the safety of the community. Community safety is not at risk at the point at which the detained person is making their application and asserts a willingness, but when presented with an opportunity to offend – but further than that, with respect to – to make that assessment by reference to the conditions that the court might impose on an offender, that is, if they were to be released on licence, creates an artificially‑controlled environment by which to asses the risk that Parliament has said needs to be assessed before they are released on a licence, and it would require the Supreme Court to then tailor their assessment of that risk, depending on the conditions that they were going to set.

GAGELER J: Ms Boord, if that is so, can I ask, what is the point of the conditions and how are appropriate conditions to be assessed, in your submission?

MS BOORD: The point of the conditions is to monitor any risk, once a person has been released. The legislation does not contemplate that there will not be any risk whatsoever, so the point of conditions, depending on each offender’s particular criminal history, is to monitor their particular risk when they are in the community, so it would be different for each particular offender, and as I said, it does not contemplate that there will be absolutely no risk whatsoever, it is just that there will not be a significant risk.

They will still be a risk in the community, and the point of those conditions, which are set by the appropriate board, pursuant to section 59(8), not by the court, is so that those conditions can be fashioned depending on the type of offender that is being released. That is the point of the conditions, which brings us to our initial concession.

We appreciate that the legislation is harsh, and the consequences are harsh. The respondent appreciates that, as does clearly our Court of Appeal, that there is an easier test, pursuant to section 57, to have someone detained, and that test is then narrow, or opportunities for release are narrow, once one applies for release pursuant to section 59 of the Act.

But, with respect, it does not make it incoherent. It is not incoherent legislation as the respondent stated initially. The definition of “willing”, in the context of this legislation, must be the yang to the yin that is the definition of “unwilling”. That was clearly Parliament’s intention when this legislation was originally amended. To have the word “willing” read – or given its ordinary meaning – would completely frustrate the purposes of these release on licences, with respect.

GAGELER J: When you assert Parliament’s clear intention, is that simply the result of the construction for which you contend or are you pointing to some extrinsic material there?

MS BOORD: No, that is the result of the construction. But if one does also go back to the second reading speech – if I can take the Court to that – it is clear that they identify the mischief that was intended to be addressed. This is at application book page 108, paragraph 12. It starts:

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 . . .

This bill amends the Sentencing Act –

and, with that amendment – I will not take the Court through the rest of that second reading speech. It was plain what then occurred from that amendment is that the Sentencing Act was amended so as to then insert, or reverse the onus, that it was now for an offender who had been detained, pursuant to section 57 or pursuant to the old section 23, to now satisfy the court that they were willing.

If “willing” is not given the converse meaning to the statutory definition of “unwilling”, the legislation, with respect – and the regime with respect to sections 57, 58 and 59 – renders it a nonsense that someone would need to be detained under one test but then, arguably, be immediately
eligible for release under another test – which would be the dictionary definition of the word “willing”.

So, whilst we concede the legislation is harsh, the consequences of the legislation are harsh, six Supreme Court judges have acknowledged as much when delivering their judgments about this particular piece of legislation – it should not be reduced to incoherence simply by judicial construction. Giving “willing” its ordinary meaning, will reduce it to incoherence, we say, and, for those reasons, the Court of Appeal’s decision is not attended by sufficient doubt to warrant a grant of special leave.

GAGELER J: Thank you very much, Ms Boord.

MS BOORD: Thank you.

GAGELER J: The Court will adjourn for a short time to consider the course it will take.

AT 9.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.52 AM:

GAGELER J: Mr McDonald, we do not need to hear from you, thank you.

There will be a grant of special leave to appeal in each of these two matters. There is a possibility of the Court being able to hear the matter, which I assume is a one‑day matter, during the May sittings. That would involve a truncation of the usual timetable, but if the parties can accommodate a hearing at that time, the Court would most likely be able to have the hearing then.

The Court will now adjourn.

AT 9.53 AM THE MATTER WAS CONCLUDED