Dangerous Sexual Offenders Act 2006 (WA), s 21, s 22

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Sparks v Belotti [1981] WAR 65

State of Western Australia v Alvisse [2007] WASC 129

1 MURRAY J: The respondent has been declared to be a dangerous sexual offender within the meaning of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), s 7. On 11 February 2009, I made a supervision order under s 17(1)(b) of the Act, for a period of 5 years. The current terms of that order are of no moment and I do not propose to identify the judgment which I then published, so that the privacy of those involved in the sexual offences committed by the respondent may be preserved.

2 On 10 February 2010, the respondent was brought before the court by video-link. He had been arrested on a warrant which purported to be issued under s 21(2)(b) of the Act. The warrant had been issued by a magistrate on 9 February 2010, commanding the police officers to whom it was directed to arrest the respondent and bring him before the court on the ground that he was 'contravening a condition/s of a supervision order'. The warrant had been executed by the arrest of the respondent on 9 February and his conveyance to appear before the court.

3 It is necessary to set out the terms of s 21:

1. Summons or warrant because of contravention

(1) 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 order may apply to a magistrate for the issue of a summons or warrant under subsection (2).

(2) If the magistrate is satisfied that there are reasonable grounds for the suspicion described in subsection (1), the magistrate has to issue, in the form approved by the chief executive officer -

(a) a summons requiring the person who is subject to the supervision order to appear before the Supreme Court for it to consider the suspected or anticipated contravention; or

(b) a warrant directed to all members of the police force for the person who is subject to the supervision order to be arrested and brought before the Supreme Court for it to consider the suspected or anticipated contravention.

(3) The summons or warrant may state the suspected or anticipated contravention in general terms.

(4) A magistrate cannot issue a warrant under subsection (2) unless -

(a) the application is supported by evidence on oath; and

(b) the magistrate is satisfied that the person against whom it is issued would not appear in answer to a summons.

(5) Even if subsection (4) does not prevent a warrant from being issued, a magistrate may refuse to issue a warrant if the magistrate considers that it would be unjust to issue it.

4 The DPP provided the court with some information about the process which had been employed to obtain the issue of the warrant. It appears that there was an oral application by a community corrections officer who, with colleagues, attended upon the magistrate in chambers. It appears that her Honour was told that the respondent was homeless and unable to obtain accommodation. He had not reoffended, but he was said to have been drinking heavily. He had lost his employment, so the magistrate was told. The respondent was said to have failed to keep an appointment for psychological counselling which had been ordered by the community corrections officer.

5 Reliance was principally placed upon breach of paragraphs of the supervision order which required the respondent to reside in approved accommodation. Without such accommodation, her Honour was told that the risk posed by the respondent to the community could not be managed. I was told that reliance was not placed upon the proposition that the respondent might present a 'flight risk'.

6 There would appear to be no difficulty in supposing that her Honour the magistrate was satisfied that there were reasonable grounds to suppose that the respondent was contravening the supervision order. The issue of a summons requiring the respondent to appear before this court, under s 21(2)(a), was clearly justified. But in my opinion, on the basis of the information provided to me, it could not be said that the validity of the warrant was established.

7 I note that s 21(3) was not satisfied by the form of warrant. I have set out above what the warrant said about the suspected contravention of the order. It does not refer to the nature of the contravention in general terms, in particular terms, or at all. It simply states that reliance was placed upon a contravention of the supervision order.

8 More importantly, it does not appear that the application was supported by evidence on oath, as required by s 21(4)(a). Nor is there any indication that the magistrate was satisfied that the respondent would not appear in answer to a summons. Indeed, as I have said, I was informed that the applicant community corrections officer placed no reliance upon such a contention.

9 Finally, there is no indication that the magistrate turned her mind to the question whether her Honour should refuse to issue a warrant because it would be 'unjust' to do so. The Act provides no guidance as to what that inquiry by the magistrate may involve. But it is clear that if the ground for the issue of a warrant is laid by the applicant, the magistrate is obliged to consider whether it would be just, in all the circumstances of the case, to cause the respondent to be arrested on warrant so that he may be brought before this court in relation to a past contravention, one which was continuing, or one which the magistrate was satisfied was likely to occur at some time in the future. It is unnecessary for the purpose of these reasons that I should determine what the exercise of that discretionary judgment might involve.

10 However that may be, when the matter came before me the warrant had been executed, and the respondent was in the custody of the court. Section 22 of the Act is in the following terms:

(1) If a person appears before the Supreme Court under a summons or warrant issued under section 21, the DPP may apply to the court for an order under section 23.

(2) The application must state the order sought.

11 In my view, the section is oddly worded in that it permits the application to be made only if the person appears under the compulsion of a summons or warrant. In this case, very naturally, there was no application before the court. It seems clear, that in the short time available, the DPP had not had the opportunity to assess what evidence was available, and what, if any, application should be made for an order under s 23, which authorises the court to amend or add to the conditions of a supervision order or, if the proper conclusion is that the supervision order should not continue, to make an order that the respondent be detained in custody for an indefinite term. Finally, as I read s 23, the court may decline to make either form of order.

12 By s 40, proceedings under the Act are to be taken to be criminal proceedings. Section 42 contains provisions which govern an application under s 23. The court is authorised to hear admissible evidence called by the DPP and any evidence given or called by the respondent, at his election. Generally speaking, the ordinary rules of evidence apply. It is clear that there needs to be some preparation, and it would be almost inconceivable that, upon the appearance of an offender before the court, in answer to a summons or under warrant issued under s 21, the DPP and the respondent would immediately be in a position to proceed to make and support an application by evidence, and to oppose it.

13 However, the Act is virtually silent as to the court's procedural powers. Section 43 provides that:

The court may, on its own initiative or on the application of a party, give directions in relation to the conduct of a proceeding under this Act.

In my opinion, that would certainly authorise the court to adjourn the proceeding to enable the parties to prepare for a substantive hearing. But what then is to be done with the respondent? The court is given no express power to commit the respondent to prison, and ultimately to have him brought up to appear in answer to the application. Nor is the court given any express power to issue a summons to the respondent requiring him to appear on a specified date. Further, s 5 of the Act expressly provides that if the respondent might be detained, the provisions of the Bail Act 1982 (WA) do not apply, and so he could not be remanded and admitted to bail.

14 In this case, I adjourned the proceeding to 24 February, and issued a summons requiring the respondent to appear before the court by video-link from the country town where he was located, on the date fixed for the continuation of the hearing. As it happened, by then the respondent had been arrested, so I was informed, for a quite separate matter which, however, was of a kind which ought to be dealt with before the question of any breaches of the supervision order might be heard and determined. On the return of the summons, I adjourned the proceeding under the DSO Act sine die.

15 I consider that although there is no express statutory power for the issue of the summons which I directed should issue, this court, having regard to the circumstances to which I have referred above and the need to make appropriate orders to secure the attendance of the respondent at the substantive hearing of the proceeding, has inherent power to make necessary procedural orders.

16 This is a view which I have previously expressed: State of Western Australia v Alvisse [2007] WASC 129. Although I there expressed some discomfort about the existence of an implicit power in proceedings, such as those before the court, to make orders either for the issue of a summons or, in a proper case, a warrant of commitment to hold the respondent, pending a substantive hearing, I did issue a warrant in that case. At [22] - [23] I said:

There appears to be a statutory hiatus in relation to proceedings such as the application now before the court. As has been seen s 21 provides for an arrest warrant pursuant to which the respondent is to be brought before the court, whereupon under s 22 the DPP may apply for an order amending the conditions of the supervision order or, as in this case, for the indefinite detention in custody of the respondent. Clearly, as in this case, it will rarely be open to the court to instantly reach the decision required of it by s 23 as to whether there are grounds for an order to be made under that section. But there is no express power, upon the adjournment of the hearing of the application by the DPP, as in this case was necessary and as I was asked to do by both parties, for the court to order that the respondent be detained in custody in the meantime.

I took the view, although I was uncomfortable with the proposition, that it was necessarily implicit in the provisions of s 22 and s 23 that the court had a power to adjourn the application so that the parties could be in a position to adduce evidence, as they were entitled to do under s 42, and for the court to hear the application in accordance with any directions that might be necessary under s 43. Taking that view, I considered it to be also necessarily implicit in the statutory provisions that the court would have a power, like that expressly conferred elsewhere in the Act, to order that the respondent be detained in custody and to again be brought before the court and I so ordered, leading to the issue of a warrant of commitment under s 45 of the Act.

17 It will be noticed that in that case I held that there was an implied power in the Act, upon the adjournment of proceedings such as those now before the court, not only to summons the respondent to appear on their resumption, but also to order that, pending their resumption, the respondent be detained in custody; choices like those presented to a magistrate on an application under s 21, but utilising the additional power, not only to issue a warrant for the arrest of the respondent so that he might be brought before the court, but also a warrant of commitment.

18 In that respect, I relied on the provisions of s 45 of the Act, which are as follows:

1. Warrant of commitment upon order for detention

If a court orders under this Act that a person be detained in custody, it must issue a warrant for the person's apprehension, if necessary, and detention in a prison under the Prisons Act 1981.

The respondent having been committed to prison by that means, he could again be brought before the court, upon the resumption of the proceedings, by order under s 85 of the Prisons Act 1981 (WA).

19 It is trite to observe that this court is a court of broad general jurisdiction. It is a superior court of record. But in respect of the proceedings before me, the jurisdiction of the court is that conferred by s 23 of the DSO Act. The question before me was whether I had inherent power to do that which was required to facilitate the exercise of the jurisdiction conferred upon the court. In Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, Toohey J said:

The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred': Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, 241 (136).

20 That has long been held to be the law in this court, and indeed every court has inherent power, which may be described as an implied power, to regulate its own procedure for the purpose of enabling it to exercise the jurisdiction conferred upon it. In Sparks v Belotti [1981] WAR 65, it was so held in respect of a Court of Petty Sessions exercising jurisdiction under the Justices Act 1902 (WA). At 68 - 69, Wickham J drew the distinction between adjectival law and substantive law. He said:

The jurisdiction of a court to hear and determine in respect of subject matter, parties and territorial limits, and in respect to the substantive law to be applied, is to be distinguished from the manner in which that jurisdiction may be exercised. ... In all cases the court must, of course, comply with the dictates of the statute, and whether such commands go to procedure or to the application of substantive law or to jurisdiction, the result is the same. ... Where, however, the enabling statute, or rules or regulations lawfully made thereunder, is silent as to adjectival or procedural matters - that is the manner of the exercise by the court of its duties and powers - then the court has an unexpressed power to control its procedures. The manner of exercise of that power in a particular case is discretionary ... .

21 More recently, the distinction arose in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256. There the question was the extent of the power of the NSW Supreme Court to stay civil proceedings for damages for negligence brought against a local government and the road construction authority, in respect of injuries sustained by the plaintiff, the driver of a car which had an accident on a road which the plaintiff alleged had been negligently constructed and maintained. The action was not brought until 29 years after the accident, although within the ultimate limitation period of 30 years provided by the Limitation Act 1969 (NSW).

22 In the context of that case, the majority, Gleeson CJ, Gummow, Hayne and Crennan JJ, in effect used the terms, 'inherent jurisdiction' and 'inherent power' interchangeably in respect of the discretionary power of a superior court to stay proceedings which constituted an abuse of process: 263 - 265 [5] - [8]. Callinan J, with whose judgment Heydon J agreed, rested his dissent upon the proposition that there was, even after the lengthy lapse of time, sufficient discernible strength in the appellant's case to make it inappropriate to stay his action as an abuse of process.

23 The other dissenting judge was Kirby J. His Honour acknowledged that the debate about terminology was of a somewhat technical nature, but he expressed a preference for the view that such accretions of power as were sought to be exercised in that case were better described as 'implied powers'; in other words, powers necessarily implicit as an adjunct to the effective exercise of a statutory jurisdiction. His Honour said:

... The distinction is not necessarily a trifling one. The notion of 'inherent powers', in the case of courts of constitutional or statutory origin, involves a judicial assertion of authority to enlarge the ambit of the jurisdiction and powers of the court without expressly anchoring such enlargement in the text of that law.

Given that the courts often impose coercive burdens on liberties and rights, it is arguably safer to derive the source for additional unexpressed jurisdiction and powers in the necessary implications from the written law rather than in a vague notion of inherent powers, found attractive to judges in particular cases. Because so-called 'inherent jurisdiction' and 'inherent powers' may sometimes be used to abrogate fundamental common law rights, or to suggest departure from express statutory provisions, it seems important to establish the true source of the propounded jurisdiction or power and to trace it back to the legislative source (297) [129] - [130].

24 I consider that the power to summons the respondent, which I have exercised in this case, and the alternative power to commit the respondent to custody, to be held pending the resumption of the proceedings, are not powers assumed as inherent powers to enlarge the statutory jurisdiction to deal with alleged breaches of the supervision order, but are powers necessarily implicit in the conferral of the statutory jurisdiction so that it may be effectively exercised.