BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WILLIAMS [No 7] [2011] WASC 128

Criminal law - Dangerous sexual offender - Supervision order - Whether court has the power to review supervision order of its own motion during its currency

Attorney-General v Van Dessel [2006] QCA 285; [2007] 2 Qd R 1

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85

Director of Public Prosecutions for Western Australia v Williams [No 3] [2007] WASC 286

Director of Public Prosecutions for Western Australia v Williams [No 4] [2008] WASC 307

Director of Public Prosecutions for Western Australia v Williams [No 5] [2010] WASC 8

Director of Public Prosecutions for Western Australia v Williams [No 7] [2011] WASC 128

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529

Smolarek v Liwszyc [2006] WASCA 50(S); (2006) 32 WAR 129

The State of Western Australia v O'Rourke [2010] WASCA 141

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

1 McLURE P: I agree with the orders proposed by Pullin JA. These are my reasons for doing so. The appellant challenges the validity of conditions of a supervision order imposed by the primary judge under s 18(2) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act).

2 This appeal concerns the proper construction of the Act. In particular, the issues for determination are whether the court has the power:

(1) to order that a supervision order be subject to periodic court review;

(2) at the review, to amend the conditions of the supervision order, including by extending or shortening the term of the order;

(3) for the purpose of the review, to direct the preparation of reports by a community corrections officer (CCO), a police officer involved in the supervision of the order and a psychiatrist; and

(4) to order that s 37 - s 39 of the Act apply to the psychiatric report(s) prepared for the review.

3 The purpose of the Act is to enable the post-sentence preventive detention or supervision of a person who has been convicted of, and is under sentence for, a serious sexual offence if they are found to pose a serious danger to the community. A person is a serious danger to the community if there is an unacceptable risk that the person would commit a serious sexual offence. Such a person can be detained in custody for an indefinite term or be subject to a supervision order not for what they have done, the penalty for which having been served, but for what they may do in the future. As the Act authorises a very serious incursion into the rights and immunities of the citizens of this State it provides for a closely regulated, integrated scheme.

4 The Act expressly confers powers on the Supreme Court. The only relevant powers expressly conferred on the Supreme Court are:

(i) to conduct a preliminary hearing at which it may order the person to undergo examination by two psychiatrists (s 14);

(ii) to make a continuing detention order or a supervision order (s 17). If a court makes a supervision order, it must impose specified conditions and has a discretion to impose additional conditions (s 18);

(iii) to amend the conditions of a supervision order (s 20);

(iv) if satisfied that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, to amend the conditions of the supervision order, make any other order or make a continuing detention order (s 23); and

(v) to review a person's detention under a continuing detention order (s 33). If the court does not find that the person remains a serious danger to the community, it must rescind the continuing detention order. If it finds that the person remains a serious danger to the community, the court may expressly decline to rescind the continuing detention order or rescind that order and make a supervision order. By virtue of the definition of 'supervision order', the provisions of s 19 - s 24 of the Act apply to a supervision order made under s 33 of the Act.

5 All the powers expressly conferred on the court are only enlivened if an application has been made by a person nominated by the Act. With the exception of an application to amend the conditions of a supervision order, the Director of Public Prosecutions (DPP) (or his alternative, the Attorney-General) (s 6) has standing to apply for orders in all of the above categories. The Chief Executive Officer of the relevant department of the Public Service, with the consent of the DPP, has standing to apply for an amendment to the conditions of a supervision order. In addition, the person the subject of the order may apply to amend the conditions of the supervision order or apply for a review under s 33 of the Act. None of the powers expressly conferred on the court can be exercised by it on its own motion.

6 The Act also makes express provision for obtaining psychiatric reports for the purpose of informing the exercise by the court of its expressly conferred powers: s 14(2)(a), s 23A and s 32. On this subject, the court's powers are restricted to ordering the offender to undergo examinations by psychiatrists: s 14(2)(a) and s 23A(1). Sections 37 - 39 of the Act specify the powers and duties in relation to the preparation and content of psychiatric reports required under other express provisions of the Act.

7 Further, on the proper construction of s 17(1)(b) of the Act, the term or period stated in the supervision order is separate and distinct from the conditions that must or may be imposed under s 18 of the Act. Accordingly, the term of the supervision order is not capable of amendment under s 20 of the Act. The same conclusion was reached by the Queensland Court of Appeal in Attorney-General v Van Dessel [2006] QCA 285; [2007] 2 Qd R 1 in construing similar provisions in the corresponding Queensland legislation (Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)). However, the court has power under s 23(1)(a) to 'make any other order' which would permit the court to vary the term of the supervision order. That power only arises if the court is satisfied that the person is likely to contravene, is contravening, or has contravened a condition of the supervision order.

8 The effect of the express provisions of the Act is that if the term of the supervision order expires, the person subject to it is released from the operation of the Act. The legislative intention is that the supervision order should only expire if the person has complied or substantially complied with its conditions. Satisfactory compliance with the conditions is to be inferred from the absence of an application for, or making of, an order under s 23 of the Act.

9 As this outline of the scheme of the Act discloses, the Act does not expressly confer on the court a power to:

(2) amend a supervision order other than pursuant to the express powers in s 19 - s 24 which are only enlivened on an application by a person with standing;

(3) extend the term of a supervision order other than pursuant to the express power in s 23(1);

(4) impose obligations on third parties (a CCO, police officer or psychiatrist) in relation to the provision of reports.

10 Section 18(2) cannot be the source of the power to impose the challenged conditions. It is a discretionary power to impose conditions on persons the subject of the order and on no-one else. More significantly, the court's power to impose conditions is self-evidently not a power to add to or vary the nature or extent of the powers conferred on the court under the Act: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [50].

11 There is no room to imply the necessary power. The structure of the statutory scheme compels the conclusion that the express provisions

relating to the court's power on the matters the subject of the challenged conditions are intended to be exhaustive. See The State of Western Australia v O'Rourke [2010] WASCA 141 [35] and R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529, 550 (Dixon J). Moreover, the challenged conditions are positively inconsistent with the coherence of the statutory scheme. A supervision order is less draconian than a continuing detention order; it is for a fixed term which can only be extended by the court (or replaced by a continuing detention order) for cause and on an application by the DPP. A continuing detention order is for an indefinite term but is subject to annual review. The legislative intention is that, at the expiration of the term of a supervision order, the person the subject of the order is released from the operation of the Act unless the person commits another serious sexual offence for which that person is sentenced to imprisonment. In that event, there can be another application enlivening the court's power under s 14 and s 17 of the Act.

12 For these reasons, the challenged conditions imposed by the primary judge are invalid, being beyond the power of the court.

13 PULLIN JA: This is an appeal by the Director of Public Prosecutions against a decision of EM Heenan J made on 7 April 2011 whereby he imposed certain conditions on a supervision order made under the Dangerous Sexual Offenders Act 2006 (WA) (Act). The appellant contends that the primary judge did not have the power to impose the impugned conditions. The appeal raises a question about the proper construction of the Act. The right of appeal is conferred by s 34 of the Act.

(a) on 17 March 2000 the respondent was sentenced to a total sentence of 11 years' imprisonment in the District Court. The respondent was made eligible for parole. The sentence imposed related to two offences of sexually penetrating a child under the age of 13 years, one offence of abducting a child and one offence of assault occasioning bodily harm;

(b) the respondent was not granted parole and he became eligible for unsupervised release on 10 July 2006. The appellant applied for a continuing detention order pursuant to s 17(1)(a) of the Act;

(c) on 11 July 2006, Blaxell J made an interim detention order until the conclusion of the final hearing of the application for the continuing detention order;

(d) on 26 April 2007, McKechnie J dismissed the application on the basis that while his Honour was satisfied the respondent was a serious danger to the community, he was not satisfied that a detention order should be made in light of the lack of evidence that a supervision order would not be a better order to adequately protect the community;

(e) the appellant appealed the dismissal of the application. The Court of Appeal allowed the appeal, quashed the decision of McKechnie J and remitted the matter for redetermination. The court ordered that the respondent be detained in custody until the further hearing of the matter before McKechnie J;

(f) on 5 October 2007, McKechnie J made a continuing detention order: Director of Public Prosecutions for Western Australia v Williams [No 3] [2007] WASC 286;

(g) on 16 December 2008, upon the appellant's application for the review of the continuing detention order, Hasluck J expressly declined to rescind the continuing detention order: Director of Public Prosecutions for Western Australia v Williams [No 4] [2008] WASC 307;

(h) on 15 January 2010, following a further review of the detention order, Hall J declined to rescind the continuing detention order: Director of Public Prosecutions for Western Australia v Williams [No 5] [2010] WASC 8;

(i) on 19 January 2011, the third annual review of the continuing detention order came before the court. EM Heenan J ordered the hearing be adjourned to allow the preparation of further reports;

(j) On 7 April 2011, EM Heenan J made a supervision order.

UPON the application by the Applicant for an annual review of detention pursuant to sections 29 and 31 of the Dangerous Sexual Offenders Act 2006, and upon the part hearing of that application on 19 January 2011, and the adjournment of that application to further hearing on 7 April 2011, and upon hearing Mr Mactaggert and Mr Yovich as counsel for the Applicant, and Ms Veltman as counsel for the Respondent, the Court, being satisfied to the requisite standard that the Respondent is a serious danger to the community in the absence of a supervision order pursuant to Division 2 of the Dangerous Sexual Offenders Act 2006, and being satisfied that the adequate protection of the community can be ensured by the release of the Respondent subject to the conditions stated in this order, ORDERS THAT the Respondent is subject to a supervision order for a period of five (5) years, pursuant to sections 17(1)(b) and 33(2)(b) of the Dangerous Sexual Offenders Act 2006, on the following conditions:

16 There then followed 37 conditions which dealt with, inter alia, place of residence, reporting obligations, provision for attendance at programmes and receiving treatment, conditions relating to disclosure and exchange of information between persons and agencies involved in the implementation and supervision of the order, conditions imposing restrictions on contact with victims, conditions obliging the respondent not to commit any sexual offence, conditions imposing a curfew and conditions directed to the prevention of 'high risk situations'.

17 After the 37 conditions, the order of the court read:

(a) this order shall be subject to periodic review by the Court, the first to take place as soon as possible after this order has been in force for 12 months, and subsequent reviews to take place at a time ordered by the Court;

(b) on any review of this order, the Court may amend the conditions of the order in accordance with section 20 of the Dangerous Sexual Offenders Act 2006, including by extending or shortening the term of the order;

(c) for the purpose of the first such review, reports shall be prepared by the CCO supervising this order, by a police officer involved in the supervision of this order, if any and by a psychiatrist, and shall be provided to the Court, the Applicant and the Respondent;

(d) the terms of sections 37 to 39 inclusive of the Dangerous Sexual Offenders Act 2006 shall apply, with any necessary modifications, to any psychiatrist's report prepared for the purposes of the first review of this order, and to any other report that the Court orders for any subsequent review of this order;

(e) Not later than 28 days from the date of this order, the Respondent shall bring before the District Court the Child Protection Prohibition Order to which he is subject under the Community Protection (Offender Reporting) Act 2004 to allow that Court to determine the scope and operation of that order.

18 Condition 37, which preceded those orders, related to them. It read:

Co-operate with any assessment required for the purposes of reviewing this order as directed by a CCO, including taking part in any interview with a psychiatrist for the purpose of such an assessment.

19 The appellant appealed. The grounds of appeal read:

1. The learned Judge erred in law in making an order, name1y order (a), that the supervision order imposed upon the respondent on 7 April 2011 be subject to periodic review, as there is no authority to make such an order under the Dangerous Sexual Offenders Act 2006 (WA) or any other law.
2. The learned Judge erred in law in making an order, namely order (b), that upon any review of the supervision order the Court may amend the conditions of the order in accordance with section 20 of the Dangerous Sexual Offenders Act 2006 (WA), including by extending or shortening the term of the order, as there is no authority to make such an order under the Dangerous Sexual Offenders Act 2006 (WA) or any other law.
3. The learned Judge erred in law in making an order, namely order (c), directing the preparation of reports by the CCO supervising the supervision order, a police officer involved in the supervision of the supervision order and a psychiatrist for the purpose of the first review of the supervision order, and for the dissemination of those reports to the Court, the Applicant and the Respondent, as there is no authority under the Dangerous Sexual Offenders Act 2006 (WA) or any other law to make such an order for the specified purpose.
4. The learned Judge erred in law by making an order, namely order (d), that sections 37 - 39 of the Dangerous Sexual Offenders Act 2006 (WA) apply to the psychiatric reports ordered pursuant to order (c), as there is no authority under the Dangerous Sexual Offenders Act 2006 (WA) or any other law to order the application of sections 37 - 39 of the Act to the learned Judge's orders (a) and (c).

20 During the hearing of the appeal, the appellant also applied to amend the grounds to allege similar error in relation to condition 37. Leave to amend should be granted. His Honour gave no reasons for his decision to make the order incorporating the impugned orders or condition 37, but it appears from the exchange occurring and recorded in the transcript that his Honour accepted a submission on behalf of counsel for the respondent, that the orders could be made under s 18(2) of the Act (ts 306). Section 18(2) is set out below. It provides that a supervision order may contain 'any other terms' that the 'court thinks appropriate' to 'ensure the adequate protection of the community ... or for the rehabilitation or care or treatment of the person subject to the order'.

21 The Act is the exclusive source of the substantive law relating to the imposition and amendment of orders imposed on dangerous sexual offenders: The State of Western Australia v O'Rourke [2010] WASCA 141 [35] (McLure P, Buss JA & Mazza J agreeing). There was no provision in the Act other than s 18(2) which was identified as providing any power for the making of such an order.

22 To decide whether s 18(2) conferred power on the court to make the impugned orders and conditions, it is necessary to read the section not on its own, but by reference to the language of the statute viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].

23 The long title of the Act states that it is an Act to 'provide for the detention in custody of persons of a particular class, or for their supervision, and for other purposes. Section 4 states that the objects of the Act are:

(a) to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and

(b) to provide for continuing control, care, or treatment of persons of a particular class.

24 Section 7(1) states that before the court dealing with an application under the Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. If such a finding is made, then certain orders may be made.

25 A 'continuing detention order' is defined in s 3(1) as a 'Division 2 continuing detention order or a Division 4 continuing detention order'. The same section defines a 'Division 2 continuing detention order' as meaning an order under s 17(1)(a) and a 'Division 4 continuing detention order' is defined to mean an order under s 23(b). A 'supervision order' is defined to mean an order under s 17(1)(b) or s 33(2)(b). A 'Division 2 order' is defined to mean a Division 2 continuing detention order; or a supervision order under s 17(1)(b).

26 Division 1 of pt 2 of the Act specifies that the DPP may apply for orders under s 14 and s 17(1).

27 Division 2 of pt 2 contains s 17(1) which reads:

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

28 An order under s 17(1)(a) is a 'continuing detention order'. An order under s 17(1)(b) is a 'supervision order'. Section 14 empowers the court in effect, to make an interim order detaining the offender in custody until the application for a Division 2 order is dealt with. Section 18(1) provides that if the court makes a supervision order against a person, the order must contain certain specified conditions and s 18(2) reads:

(2) The supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation or care or treatment of the person subject to the order.

29 Part 3 of the Act deals with what is to happen if a continuing detention order is made. Section 28 provides that the purpose of pt 3 is to ensure that a person's detention under a continuing detention order is regularly reviewed. Section 29 obliges the DPP to apply to the Supreme Court for a review as soon as practicable after one year and each year thereafter. Section 30 permits an offender, with the leave of the court, to apply for a review if exceptional circumstances exist. Section 32 then provides for the Chief Executive Officer of the Department of Corrective Services to arrange for the person to be examined by two psychiatrists for the purpose of preparing reports to be used on a review. Section 32 authorises each of the psychiatrists to examine the person and to report in accordance with pt 5. Part 5 contains s 37 which obliges the psychiatrists to examine the offender and to prepare a report.

(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.

(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -

(a) expressly decline to rescind the order; or

(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.

(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.

31 If an order is made under s 33(2)(b) then it is a 'supervision order' by reason of the definition in s 3 of the Act. Being a supervision order, the court then is obliged to impose the conditions referred to in s 18(1).

32 If a supervision order is made, either pursuant to s 17(1)(b) or s 33(2)(b), there are a number of occasions when the Supreme Court may have to deal with applications concerning the supervision order:

(a) pursuant to s 20(1), an application may be made to amend the conditions of the supervision order. The application may be made either by the person who is subject to the supervision order or with the DPP's consent by the Chief Executive Officer (s 19(1));

(b) pursuant to s 21, a summons or warrant may be issued by a magistrate upon the application by a member of the police force or community corrections officer who reasonably suspects that a person who is subject to a supervision order is likely to contravene, is contravening or has contravened a condition of the supervision order. The summons or warrant requires the offender to appear or to be arrested and brought before the Supreme Court (s 21(2)). The person who makes the application must advise the DPP as soon as practicable that the application has been made (see s 21(2A)). If a person appears before the Supreme Court under a summons or warrant, the DPP may apply to the court for an order under s 23 which provides that the court may make an order amending the conditions of the supervision order, make any other order or, alternatively, detain the person in custody for an indefinite term for control, care or treatment.

(c) Finally, if a person subject to a supervision order contravenes a requirement of the order, a police officer (who must be an authorised officer - s 40B(3)) may charge the person with an offence which carries a maximum penalty of imprisonment for 2 years: see s 40A. The DPP must be informed of the charge (s 40A(3)). The prosecution of the charge may be commenced in the Supreme Court only if proceedings have already been commenced under pt 2 Div 4 and not concluded (s 40B(2)). Otherwise, the procedure applicable to a charge under s 40A(1) is the procedure applicable in relation to simple offences generally (s 40B(1)).

33 What is evident from this review is that if a continuing detention order is made, the DPP must apply for a review on an approximately yearly basis. The court does not have power of its own motion to bring the matter before the court.

34 If a supervision order is made, there is no provision in the Act requiring the DPP to seek a review by the court, annual or otherwise. The scheme of the Act is that it is then up to others, namely the person subject to the supervision order, a member of the police force, the Chief Executive Officer or the DPP to bring the matter back before the Supreme Court or a Magistrates Court on one or other of the applications referred to above if the occasion for such an application arises.

35 In the light of that review of the Act, the question then is whether the reviewing judge made an error of law in deciding that there should be an order for a periodic review after 12 months during the period of the supervision order without any application being made to the court by the DPP, the offender or any other person permitted to do so by the Act. The orders made, and particularly (b) contemplated that on that review the court might amend the conditions of the order, even if there were no application by the DPP or the respondent for such amendment. Order (c) required reports to be prepared by the CCO supervising the order, by a police officer involved in the supervision, if any, and by a psychiatrist. There is no provision in the Act which compels a psychiatrist to make such a report as there is in the case of continuing detention order reviews, for contravention of supervision orders or preliminary hearings pursuant to s 14. (see s 37(1)).

36 Read as a whole, it becomes apparent that the Act does not require regular reviews of a supervision order and does not authorise the court of its own motion to review supervision orders.

37 Once the decision has been made that the continuing detention order should be rescinded and a supervision order made, the court has no further involvement in the administration of a supervision order. It may become involved again, but only when its jurisdiction is invoked in one of the ways indicated above. The Act contemplates by express provision that if the conditions of the supervision order are to be amended, the amendment is to take place as a result of an application by one of the parties not by the court deciding to do so of its own motion.

38 A supervision order is a final order of the court. The jurisdiction and power of the court is spent once the supervision order is made. As a general rule, except by way of appeal, a court has no power to review, rehear, vary or set aside any judgment or order once it has been formally recorded. Once the order is sealed, and therefore 'perfected' the court's power to reconsider the matter is at an end: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [18] - [20]. The impugned orders seek to impermissibly extend the involvement of the court after a final order has been made.

39 Section 18(2) authorises the imposition of terms, compliance with which will ensure adequate protection of the community and to bring about the rehabilitation, or care, or treatment of the person while under a supervision order. An order purporting to extend the involvement of the court after a final order has been made is not such an order.

40 The appeal permitted under the Act is an appeal against a 'decision' made under the Act (s 34). The relevant decision is the decision to make the order, not the order itself: McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8]. The reviewing judge erred in his decision to make orders containing the impugned orders and condition 37. In consequence, the appeal should be allowed.

41 The supervision order made on 7 April 2011 should be set aside. The appeal having been allowed, the court under s 36(2)(a) has all the powers and duties of the court making the decision against which the appeal is made.

42 The finding that the respondent remains a serious danger to the community is not challenged and should stand. Neither party submitted that it was not appropriate to rescind the continuing detention order and to make a supervision order for the period specified by the reviewing judge and no suggestion was made that the conditions up to and including condition 36 were not appropriate. However, it is for this court to make its own decision. I would make a supervision order pursuant to s 33(2) for the reasons given by the reviewing judge in [1] - [16], [19] - [25] and

[30] - [31] of his reasons for decision in Director of Public Prosecutions v Williams [No 7] [2011] WASC 128. The orders will be:

(a) an order rescinding the continuing detention order, and

(b) a supervision order for a period of 5 years on the same conditions set out in conditions 1 to 36 of the order made on 7 April 2011.

43 I should add that the reviewing judge overlooked making an order to rescind the continuing detention order which had been made by McKechnie J on 5 October 2007. The parties assumed that such an order was implicit in the making of the supervision order but it was necessary to expressly make an order rescinding the continuing detention order.

44 The supervision order is to take effect from 7 April 2011. The court has the power to order that the judgment take effect at an earlier date. See O 42 r 2(2) Rules of the Supreme Court 1971 (WA) and r 5 Supreme Court (Court of Appeal) Rules 2005 (WA). There is good reason for backdating in this case: see generally Smolarek v Liwszyc [2006] WASCA 50(S); (2006) 32 WAR 129 and Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85 [58].

45 ALLANSON J: I have read a draft of the reasons for decision of Pullin JA in which his Honour sets out the background to this appeal and the provisions of the Dangerous Sexual Offenders Act 2006 (WA) relevant to it. I will not repeat that material.

46 Mr Williams had been detained pursuant to a continuing detention order under the Act since 2006. The decision of Heenan J was on an application by the Director of Public Prosecutions under s 29 of the Act for the annual review of the continuing detention order under which Mr Williams was detained.

47 Under s 33, having found that Mr Williams remains a serious danger to the community, the court could either:

(1) expressly decline to rescind the existing continuing detention order; or

(2) rescind the order and make a supervision order, that is, an order that at all times during the period stated in the order when Mr Williams is not in custody he be subject to conditions that the court considers appropriate and states in the order.

48 His Honour decided that the continuing detention order should be rescinded and a supervision order made. Section 18(1)(a) to (f) sets out six conditions which must be part of a supervision order. Section 18(2) provides:

The supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation or care or treatment of the person subject to the order.

49 It appears from the transcript of proceedings before his Honour that in making the orders challenged in this appeal he acted under s 18(2). The order is not one for Mr Williams' rehabilitation, care or treatment, so must be an order to ensure adequate protection of the community.

50 The power of the court to amend the conditions of the supervision order, including by extending or shortening its term, is a critical component of the regime created by condition 37 and orders (a) to (d) in the orders of Heenan J. Further, order (b) of those orders provides for the conditions to be amended 'in accordance with s 20'.

51 Section 20 allows the court to amend the conditions of an order. But it is a precondition for the court making an order under s 20 that the person subject to the supervision order has applied to amend the conditions of it, or the Chief Executive Officer, with the DPP's consent, has applied. Accordingly, in my opinion, order (b) purports to give the court a power which it does not have under the Act, being the power to amend conditions of the order other than on an application by either Mr Williams or the CEO. That is an error of law, and the appeal should be allowed on that basis.

52 The appellant presented several additional arguments, including that s 17(1)(b) and s 33(2)(b) of the Dangerous Sexual Offenders Act 2006, as a matter of construction, distinguish between the period of an order and the conditions to which the offender is to be subject during that period. The appellant argued that the power to amend is confined to conditions and there is no power to amend the period of a supervision order.

53 While Mr Williams was represented at the appeal, he presented no submissions and abided by the decision of the court. There was therefore no contradictor to the arguments of the appellant. The matters to which I have referred are, in my opinion, sufficient to allow the appeal and set aside his Honour's decision. I would prefer to express no wider view in the absence of full argument.

54 The question that arises is what is to be done. Under s 36:

(1) An appeal is by way of rehearing.

(2) The Court of Appeal -

(a) has all the powers and duties of the court making the decision against which the appeal is made;

(b) may draw inferences of fact, not inconsistent with the findings of the court making the decision against which the appeal is made; and

(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit, or in another way.

55 The appeal having proceeded solely on questions of law, the material before the primary judge has not been included in the material before the court.

56 I agree with Pullin JA that, for the reasons given by the primary judge, the conditions of the order save for condition 37 should remain. It is not possible from the material before the Court of Appeal to say whether Heenan J was satisfied that the period of the order should be five years (the period sought by the DPP). By his proposed order (b), his Honour sought to allow for continuing review of the suitability of that period. In my opinion, the period to be stated in the order needs to be determined by reference to the evidence, and this court is not presently in a position to do that.

57 Finally, I note that the conditions to be imposed would not include par (e) of the orders made by Heenan J, because that order has been complied with and is now redundant.