In this case, the appellant had been indefinitely detained since 1982 pursuant to s 18(1)(a) Criminal Law Amendment Act 1945 (CLAA). In 2018, the Governor-in-Council dismissed his application to be released pursuant to s 18(5)(b) CLAA. That section provides that the person may be released if the Governor in Council is satisfied on the report of two medical practitioners that it is ‘expedient’ to do so. The court found that the medical reports relied upon did not answer the proper question as to whether the appellant was incapable of exercising proper control of his sexual instincts and instead considered whether the appellant posed an unacceptable risk to others. Further, the court held the reasons of the decision maker revealed the statutory criterion had not been considered. The court allowed the appeal and remitted the matter to the Governor in Council.
Sofronoff P and Morrison JA and Jackson J
27 August 2018
The appellant, Mr Butler, had been detained at The Park Centre for Mental Health since 1982. He had been indefinitely detained under s 18 of the Criminal Law Amendment Act 1945 (“CLAA”). Mr Butler applied, under s 18(5)(b) of the CLAA, to be released; the Governor in Council decided he not be released and, after unsuccessfully seeking a statutory review of that decision Mr Butler appealed. –.
It was uncontroversial why Mr Butler had been detained. Between 1962 and 1970, Mr Butler was convicted of six sexual offences, each described as ‘aggravated assault on a male child under the age of 14’. While detained, Mr Butler has been subject to a very high degree of supervision and control and there was no evidence of inappropriate sexual behaviour despite having unsupervised access to the community for a number of years, but for only short periods of time. It was noted that Mr Butler had become institutionalised and he was suffering from a number of medical conditions. –.
Section 18(1)(a) of the CLAA provides that an offender may be indefinitely detained if found guilty of a sexual offence and two medical practitioners report that the offender is incapable of exercising proper control over the offender’s sexual instincts. . Section 18(5) provides that an offender ‘shall not be released until the Governor in Council is satisfied on the report of 2 medical practitioners that it is expedient to release the offender’. . The court noted that ‘release’ there meant unconditional release and not release under Part 3A of the CLAA, which relates to parole orders. .
In considering the decision of the Governor in Council, the court highlighted that the Statement of Reasons included that Mr Butler had demonstrated a capacity to control his sexual impulses and that he had not reoffended, but that it was recommended he not have unsupervised access to children. –. The court also set out the reasons for the decision in full. . Those reasons relied upon medical reports produced pursuant to s 18(5)(b) of the CLAA, as well as others produced as a condition of Mr Butler’s detention.
The grounds of appeal on which the appeal was based were that there had been three errors of law because: 1) s 18(5)(b) of the CLAA had been misconstrued; 2) irrelevant considerations had been taken into account; and 3) relevant considerations had not been taken into account. .
The court considered the statutory framework in more detail and noted that in regards to s 18(1)(a), which calls for medical reports on whether an offender’s mental condition means he is incapable of exercising proper control of his sexual instincts, there are dangers in asking about the risk of reoffending as that imports different words into the legislation  and that provision ought not be conflated. .
An application under s 18(5)(b) authorises release of an offender where the Governor in Council is satisfied on the reports of two medical practitioners that it be ‘expedient to release’ and, the court said, those reports must be directed to whether an offender remains a person incapable of exercising proper control of sexual instincts. . The Executive must establish the offender’s continued incapacity to justify further indefinite detention. .
Ultimately, the court found the medical reports furnished in relation to Mr Butler considered whether Mr Butler represented an unacceptable risk to others . Neither report expressed the opinion that Mr Butler satisfied the statutory criterion to justify his continued incarceration . Further, the reasons of the Governor in Council did not show an appreciation of the statutory test and looked instead at the risk were Mr Butler released. . The court found that the decision was made in excess of jurisdiction and void . The appeal was allowed and the decision was remitted to the Governor in Council .