The applicant sought judicial review of the decision of the Governor in Council refusing his application for unconditional release under s 18(5)(b) Criminal Law Amendment Act 1945. The applicant contended that the Governor in Council had failed to make the decision according to law because the two psychiatric reports he relied upon did not address the statutory question being whether the applicant was presently incapable of exercising proper control over his sexual instincts. Bowskill J clarified that it is not an express requirement under s 18(5)(b) that the medical practitioners articulate an opinion about incapacity as opposed to dealing with matters directed to that issue. There was no error because the Governor in Council asked himself the right question, namely, whether he was satisfied on the reports of the two doctors (which were directed to the risk of the applicant reoffending) that it was expedient to release the applicant. Accordingly, Bowskill J dismissed the application.
15 August 2019
In 1984 the applicant was convicted of having committed serious sexual offences against children and was sentenced to indefinite detention pursuant to s 18(3) Criminal Law Amendment Act 1945 (“CLA Act”). –. Having previously been unsuccessful in obtaining parole, the applicant applied for unconditional release under s 18(5)(b) CLA Act, which required the Governor in Council to be satisfied, on the report of two medical practitioners, that it was expedient to release the applicant. –. In February 2018, the Governor in Council determined that the applicant should not be released from detention. .
The applicant sought judicial review of the decision on the basis that the Governor in Council had failed to address or answer the relevant question of “whether the applicant was presently incapable of exercising proper control over his sexual instincts”. , . The applicant’s core contention was that psychiatric reports relied upon in making the decision did not adequately address the applicant’s present capacity to control his instincts, and that as such, the Governor in Council erred by making a decision on the basis of reports that did not address the relevant statutory question. .
The correct statutory test under s 18(5)(b) CLA Act
Bowskill J found that there was no discernible error of law in the circumstances. , . The phrase “it is expedient to release” in s 18(5)(b) CLA Act referred to unconditional release, and was to be understood in that context and in light of the provisions of the CLA Act which authorised indeterminate detention and provided for conditional release. . Her Honour identified that the risk of reoffending was a central concern, both in making a declaration of indefinite detention under s 18(1) and 18(3) CLA Act, and in exercising the power of release under s 18(5)(b) CLA Act. –.
Although Pollentine v Bleijie (2014) 253 CLR 629 had identified that medical reports considered under s 18(5)(b) CLA Act must be directed to, or deal with, an offender’s capacity to control their sexual instincts, Bowskill J noted that there was no statutory requirement for an express opinion to that end. –. Her Honour explained that in dealing with the question of any risk of the applicant reoffending on unconditional release, the reports relied upon by the Governor in Council had canvassed the relevant concern, despite one of those reports not having articulated an express opinion about the applicant’s capacity to control his instincts. –. It was similarly apparent that the Governor in Council was cognisant of the correct central question. .
Bowskill J further clarified that the decision of the Court of Appeal in Butler v Attorney-General  QCA 243 also did not support the applicant’s argument. –. Reading that decision in light of Pollentine v Bleijie, it did not support contentions that the Governor in Council was to be concerned strictly with the applicant’s present capacity to properly control sexual instincts, or that the medical reports founding the decision must expressly address that question. –.
In the result, Bowskill J dismissed the application. .