Supreme Court of WA|2011-08-11|Before: Heenan J

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 2] [2011] WASC 191 (11 August 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 2] [2011] WASC 191

MATTER : Sections 8, 14 and 17(1) of the Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Dangerous sexual offenders - Review of detention order - Annual review - Time for review - Statutory interpretation - Frequency of review - Commencement date for calculation of review period - Declaratory orders - Orders nunc pro tunc - Finality principle - Directions in relation to forthcoming review hearing - Declaration as to due date for annual review

Application to vary order of 23 December 2010 refused

Attorney-General for New South Wales v Gallagher [2006] NSWSC 340

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164

Director of Public Prosecutions (WA) v McGarry [No 3] [2011] WASC 134

Director of Public Prosecutions (WA) v Teague [2010] WASC 58

Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405

Eastman v The Queen [2008] FCAFC 62

Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 233 CLR 575

Fardon v Attorney-General for the State of Queensland [2006] QSC 005

Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420

Hartley Poynton v Ali [2005] VSCA 53; (2005) 11 VR 568

Institute of Patent Agents v Lockwood [1894] AC 347, 360

Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402; (2001) 25 WAR 269

Maurice Blackburn Cashman v Brown [2011] HCA 22

Pope v WS Walker & Sons Pty Ltd [2006] VSCA 227; (2006) 14 VR 435

Stambulich v Ekamper [No 4] [2008] WASCA 189

The State of Western Australia v Alvisse [No 2] [2007] WASC 129(S)

The State of Western Australia v Alvisse [No 4] [2011] WASC 85

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

1 By application dated 18 May 2011, the Director of Public Prosecutions for Western Australia seeks an order pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) that the detention of the respondent, Alwyn Wayne Brown, under the continuing detention order made on 23 December 2010, be reviewed as soon as practicable after the end of a period of 1 year commencing when the respondent was first in custody on a day on which the person would not have been in custody had the continuing detention order not been made, the end of such period being, so the applicant contends, on 23 December 2011.

2 Three controversies arise from the application and the supporting submissions. The first is whether the order made on 23 December 2010 expressly or impliedly specified when the review of the respondent's detention order as required by s 29 and s 31 of the Act should occur. The second is to the effect that if the order of 23 December 2010 expressly or impliedly specified that the review of the respondent's detention order should occur as soon as practicable after 26 June 2011 rather than some later date, whether it is possible, and if possible, whether the court should, now vary or correct that order to specify that the review of detention order should occur on or as soon as practicable after 23 December 2011. Third, and most fundamentally, the application gives rise to the question of when a review of a continuing detention order is to be carried out under s 29 and s 31 of the Act, in circumstances where the earlier continuing detention order has been made at a date after the expiration of the sentence or sentences which the prisoner was serving and after an interim detention order has been made under s 14(2)(b) of the Act detaining the respondent in custody pending the determination of the application for the original indefinite detention order under s 7 and s 17.

3 To appreciate these issues fully it is necessary to set out some of the background. On 23 December 2010 I made an order for the detention in custody for an indefinite term for control, care or management of the respondent - Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405. The hearing of that application by the DPP had commenced on 24 June 2010, continued on 25 June 2010, and was then adjourned part-heard, at the request of the respondent, to allow possibilities for the accommodation of the respondent in the community then identified to be more fully investigated. Those investigations led to a further adjournment of the hearing of the application on 25 August 2010 and to a final hearing on 28 October 2010 before the decision was given on 23 December 2010.

4 On 25 June 2010 orders were made under s 14(2) of the Act, without opposition on behalf of the respondent, extending the respondent's release date until the determination of the application. In my reasons for decision when making the continuing detention order on 23 December 2010 the question of when that order would need to be reviewed was addressed at [126]:

Such an order will have the effect provided by s 25 and s 26 of the Act and will be subject to at least annual review in accordance with s 29. Because Mr Brown's custody has since 26 June 2010 been pursuant to orders made under the terms of this Act rather than to the sentences which had been imposed upon him and which he has served, the end of the first period of 1 year referred to in s 29(2)(a) will be 26 June 2011.

5 Consequently, as the applicant correctly submits, between 26 June 2010 and 22 December 2010 inclusive, the respondent was in custody solely due to the interim detention order made under s 14 on 25 June 2010 and later extended. Since 23 December 2010 onwards, the respondent has been in custody solely due to the continuing detention order made under s 17.

6 No formal order setting out the terms of the decision made on 23 December 2010 was extracted or sealed whether by the applicant, the respondent or at all. However, the fiat sheet of 23 December 2010 prepared, with my approval, by my then associate recorded the orders as then made as follows:

Reasons published.
Continuing detention order made.
Annual review to be heard on 26 June 2011.

7 Similarly, the warrant of commitment then issued in respect of the continuing detention order made on 23 December 2010 recorded that an indefinite detention order under s 17(1) of the Dangerous Sexual Offenders Act had been made that Alwyn Wayne Brown is a serious danger to the community and that he be detained in custody for an indefinite term for control, care and treatment. The face of the warrant recorded the date of the continuing detention order as being 23 December 2010 and the date when the continuing term of detention began as being 26 June 2010.

8 The position of the applicant had been that the timing for the review of the continuing detention order is set by s 29 and s 31 of the Act and so required no further order or declaration by the court. In view of this approach, the respondent appears to have assumed that the observations which I made in [126] of the reasons for decision of 23 December 2010 were only obiter or advisory and, not being recorded in any order made by the court, had no other status or binding effect. Nevertheless, in view of some uncertainty about the position and because the respondent's counsel and solicitors were contending that the review must commence on or as soon as practicable after 26 June 2011, the Director made the application dated 18 May 2011 in effect seeking an order or declaration that the review of the continuing detention order of 23 December 2010 should occur on or as soon as practicable after 23 December 2011. That application came before McKechnie J on 14 June 2011. In oral reasons then given McKechnie J expressed the view that he had no power to deal with the matter because the order made on 23 December 2010 expressly directed that the review should occur on or as soon as practicable after 26 June 2011 notwithstanding that the order was never extracted. As a result, McKechnie J dismissed the application before him but gave liberty to the applicant to apply for further directions before me at a later date. That is how this application came before me on 21 June 2011. It also explains the urgency for a decision in the event that it were to be determined or confirmed that the review hearing should be held on or as soon as practicable after 26 June 2011.

9 The position adopted by the respondent is that the orders pronounced on 23 December 2010 did include a determination or declaration that the review of the respondent's detention order should be conducted on or as soon as practicable after 26 June 2011 and that this should take effect. An associated submission was that the order made was the result of a deliberative determination and could not, or at least should not, be revised, altered or amended under the slip rule (RSC O 21 r 10) or any other power, otherwise than on an appeal, and that insofar as the question of the date for the determination and the time for the review to occur was concerned, my role in the proceedings had ended by the order pronounced and that, at least in this respect, I was functus officio. Further, the respondent submitted that, if despite his counsel's submissions to the contrary, the proper interpretation of s 29 and s 31 called for the review to occur 12 months after the making of the final detention order, notwithstanding that there had, until then, been an interim detention order, then the order and declaration for the review to be carried out on or before 26 June 2011 should be treated as a determination by the court for its order to take effect from a prior date, namely 26 June 2010 notwithstanding that it was pronounced on 23 December 2010.

10 After hearing the submissions of counsel on 21 June 2011, I confirmed that my decision of the preceding December included, as a deliberative component, an order or declaration that the review should be conducted on or as soon as practicable after 26 June 2011 and that this was not a determination covered by the slip rule or capable of variation other than upon a successful appeal by the applicant. In doing so, I confirmed my earlier conclusion that the 12-month period contemplated by s 29 and s 31 commenced on the expiration of the sentence or sentences originally served by the respondent and included any period or periods in which his detention continued because of an interim order made under s 14. My reasons for these conclusions are set out more fully later.

11 In that situation, I invited and accepted an application by the DPP to be made there and then, and formalised later upon an undertaking to that effect by counsel, to commence the review application and for directions to be made in conventional terms for the conduct and future hearing of that review. The parties were agreed upon the directions which should be made and, after conferring, produced a minute of agreed directions to that effect which I later adopted and ordered. Those directions are set out in full at the end of these reasons. As a consequence, the application for review has been commenced and was heard on 8 August 2011, that being the soonest occasion possible after 26 June 2011. The Director is to be commended for seeking the directions of the court in relation to the situation which had arisen and in cooperating in the procedure which allowed, even if somewhat belatedly, the review application to be commenced and pursued with despatch.

12 The applicant submitted, and I accept, that the continuing detention order made on 23 December 2010 was an order made under s 17(1)(b) and was thus a 'Division 2 continuing detention order' which is a species of 'continuing detention order' both terms being defined in s 3. The applicant submitted that such a continuing detention order 'has effect in accordance with its terms from the time the order is made until rescinded by further order of the Supreme Court', s 25. It was further submitted that the language of s 25, and the absence of any express provision for 'backdating' (such as in s 87(d) Sentencing Act 1995 (WA)) suggests that it is not possible for continuing detention orders to be given retrospective effect.

13 The next, and key, submission for the applicant was that unlike the continuing detention order, the earlier order for detention made on 25 June 2010, and later extended, was made under s 14(2)(b) of the Act, which is a provision appearing in Div 1 of the Act. Counsel submitted that while such orders are generally referred to as 'interim detention orders' that language does not originate in the Act. The Director submitted that a s 14(2)(b) order is not a 'continuing detention order', the definition of which is limited to detention orders made under Div 2 or Div 4 - see s 3. Accordingly, the Director submitted that because s 29 applies only to a 'continuing detention order', s 29(1), it does not apply to a so-called 'interim detention order'.

14 Counsel for the Director then referred to s 29(2) which provides that reviews have to be carried out -

(a) as soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made.

15 Consequently, the Director's submissions went on to advance the proposition that the Act does not include any provision for a review to be brought under s 29(2)(a) before the end of the period there specified - contrast s 30. These provisions, so it was submitted, reflect an underlying parliamentary intention that continuing detention orders should not be reviewed in the first year of their operation (other than upon appeal).

16 Counsel for the Director submits that this approach to the interpretation of the Act is also suggested by the inclusion of different words in s 29 to those used in equivalent provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) which has been recognised as the prototype upon which the Western Australian legislation has been substantially modelled - see The State of Western Australia v O'Rourke [2010] WASCA 141 [22] and the second reading speech by which the Bill for this Act was introduced into the state parliament - Western Australia, Parliamentary Hansard, Legislative Assembly, 9 November 2005, 7006 (The Hon JA McGinty, Attorney General).

17 Counsel for the Director observed that the comparable provisions for annual review of a detention order contained in the Queensland Act, as they existed at the time of the passage of the Bill before the WA parliament, are conveniently set out in Fardon v Attorney-General for the State of Queensland [2006] QSC 005 [11] - [12]. Counsel pointed out that differences between the WA statute and the Queensland Act include the choice of different language in s 29 of the WA Act. Counsel submits that it is of significance, in considering the intent of the Western Australia parliament, that parliament chose not to use the words 'at the end of' as was used in the equivalent s 27 of the Queensland Act but rather the words 'as soon as practicable after'. The Director submitted that the use of the different words in that context supports the construction advanced for the applicant. Counsel for the applicant then submitted that the only power for the court to conduct annual reviews is to be found in s 29 or s 30 of the Act.

18 Counsel for the Director acknowledged that there is no decision of the Court of Appeal relating to the proper interpretation of s 29 of the Act in relation to the issues which have now arisen. However, counsel referred to a number of decisions of single judges of this court in which it was submitted that contrary views about the interpretation of s 29(2)(a) have been expressed. In The State of Western Australia v Alvisse [No 4] [2011] WASC 85 Murray J observed at [27]:

I repeat the interpretation, which I have previously expressed, that that section [s 29] is concerned to provide the frequency within which such a review must take place. There is, in my opinion, no impediment to the DPP applying to the court for the detention to be reviewed earlier than after a year, when it is thought to be appropriate to do so. (original emphasis)

19 Counsel submitted, however, that in Alvisse [No 4] a s 30 exceptional review would have been possible because the first annual review had already occurred (see Murray J [28]). The researches of counsel were not able to locate earlier judgments in which Murray J previously expressed the view contained in the above extract in Alvisse [No 4] but it is evident that his Honour had such references in mind. Counsel for the Director submitted that there are, however, other earlier judgments in which a contrary view appears.

20 The State of Western Australia v Hart [2008] WASC 43 was a case in which the factual circumstances were similar to this present case in that there was a period of detention under s 14(2)(b) before the Div 2 hearing. In declining an application by the respondent to adjourn the Div 2 hearing further, because to do so, it was held, would delay the annual review in the event of a continuing detention order, Murray J observed:

[6] ... If, at the end of the substantive proceedings, the Court is obliged to make a continuing detention order, it has effect, under s 25, in accordance with its terms, 'from the time the order is made until rescinded by a further order of the Supreme Court'. There is no provision for such an order to be backdated to the time when the respondent commenced to be in custody solely by reason of the application under the Act after service of the sentence was concluded.

[7] Under s 29, the Director of Public Prosecutions must apply to the Supreme Court for the detention under a continuing detention order to be reviewed. They are annual reviews. Section 29(2)(a) says the first of them is to be carried out:

as soon as practicable after the end of the period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made.

The effect of that, therefore, is that although the DPP's application may be made earlier, the review cannot be carried out until the continuing detention order has been in operation for a year. Again, there is no capacity to have the review earlier.

[8] Under s 30, the offender may seek the leave of the Court to apply for that person's detention under the continuing detention order to be reviewed. Leave may only be granted if there are 'exceptional circumstances': s 30(2), but no doubt effective progress with treatment which may make available a good argument that the adequate protection of the community against the risk of reoffending no longer requires the person's continuing detention, might be regarded as an exceptional circumstance. However, the detained offender cannot apply for a review under any circumstances until after the detention has been first reviewed on the application of the DPP under s 29(2)(a) and therefore the offender can, under no circumstances, bring an application during the first year, to be heard upon the expiry of that period: s 30(3).

21 In The State of Western Australia v Alvisse [No 2] [2007] WASC 129(S) at [19] - [20] Murray J also held that the time for the review would not occur until the expiration of one year from the making of the continuing detention order notwithstanding that there had been, in that case, an earlier period of detention under a power then implied, with consent, for detention under the contravention provisions of pt 2 div 4. His Honour observed that 'the period of custody must be that provided for by the making of a continuing detention order', an observation with which his Honour's later decision in Hart is consistent.

22 By contrast, in Director of Public Prosecutions (WA) v Teague [ 2010] WASC 58 [25] - [27] McKechnie J observed that a continuing detention order could be backdated. Counsel for the Director submitted that the reasons for decision of McKechnie J in Teague support a view that it is open in any event for the DPP to bring an early review to be held prior to the expiry of the one-year period from the making of the order. According to the submissions of counsel for the Director, in Teague's case the DPP brought an application for annual review before the earlier of the two dates contended for in order that the issue as to a date for such reviews to be conducted might be squarely argued. However, as it developed, it was not possible or necessary to determine that issue and the review was conducted on a date more than one year from the date of the continuing detention order.

23 The question of when the date for review of a dangerous sexual offender subject to a continuing detention order accrued was dealt with by McKechnie J in Director of Public Prosecutions (WA) v McGarry [No 3] [2011] WASC 134 on the basis that 12 months had expired from the final day of the sentence of imprisonment to the date when he contended the review was due. However, the resolution of that case depended upon whether or not intervening periods of custody or imprisonment served by McGarry were due solely to the continuing detention order. It is evident that they were not, McGarry having been arrested, held without bail and then sentenced to imprisonment for other offences in the interim. It followed that significant periods of a term which McGarry said was accruing towards his review under s 29 were due to custody or imprisonment for other reasons and therefore did not count. The issue which arose in the present case was not dealt with in McGarry [No 3] and the resolution of that case does not determine the outcome of the present question.

24 Very properly, counsel for the Director submitted that the observations relied upon in each of the authorities so far discussed must be regarded as obiter dicta and none of these expressions of judicial view was made after full contested argument between the parties about the proper interpretation of s 29. Accordingly, counsel submits that this case is the first occasion on which the issue has been squarely raised and that the judgments cited are no more than persuasive authority for the determination of that question.

25 Again, consistent with his obligations to the court, counsel for the Director acknowledged that at the time of the delivery of the judgment in this case on 23 December 2010, counsel for the DPP did not then take issue with the 'view' expressed in [126] of my reasons for decision nor did he demur to the pronouncement of an order or a declaration to the effect that the review should be conducted on or as soon as practicable after 26 June 2011. Counsel raised this point in case it might be thought that there had been some concession or waiver or failure to take the point by counsel at the time the decision was given and the orders made. I quickly dispelled any such possibility and acknowledged that, although counsel did not address this point when the decision was being given or the orders pronounced, there was really no occasion or opportunity for counsel then appearing to do so. By then the deliberative decision had been made and was being announced. The orders pronounced were no more than those appropriate to give effect to that adjudication. It was not an occasion for any further submissions or determination of the issues the subject of the decision.

26 With regard to the means by which the court might now order or declare that the review order in this case should not occur until on or after 23 December 2011, the submission was that it was open to the court to 'clarify' when the review should occur or, even if it had been determined that it should occur on or after 26 June 2011, it would be open to the court to vary that determination by way of correction as no order to that effect had been formally extracted or sealed and, accordingly, it was still open to the court, if satisfied that an error had been made, for it to be corrected.

27 Counsel for the respondent submitted that the continuing detention order made on 23 December 2010 was in effect backdated to take effect on 26 June 2010, and that it was open for the court to make an order to operate nunc pro tunc from 26 June 2010 thus rendering any review due on, or as soon as practicable after, 26 June 2011. In further support of this submission, counsel for the respondent contends that a continuing detention order commencing nunc pro tunc from 26 June 2010 operates necessarily to vacate any interim orders made in accordance with s 14(2)(b) of the Act because those orders are predicated on the application for the continuing detention order not being 'finally decided' (s 14(2)(b)(i)). According to those submissions, it can therefore be said that in accordance with s 29(2)(a) of the Act, on and after 26 June 2010 the respondent 'would not have been in custody had the order not been made'.

[a] continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the Supreme Court.

29 According to the submissions of counsel for the respondent, that provision does not contain any restriction or modification of the inherent power of the court to make orders nunc pro tunc - as to which see Hartley Poynton v Ali [2005] VSCA 53; (2005) 11 VR 568 [63], [76] and [80] and Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 [96]. The inherent power of this court to backdate its orders nunc pro tunc was recognised by the Full Court in Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402; (2001) 25 WAR 269 [36].

30 In Hartley Poynton v Ali Ormiston JA observed at [76]:

[T]he power of the courts to antedate orders and judgments, which comprehends from its terms the making of orders nunc pro tunc, is derived from the court's inherent jurisdiction or, as expressed in the courts of common law, was a power derived from the common law ...

31 It is true that this court has, subject to any relevant statutory provision, a general inherent power to make any orders that the interests of justice require. Nevertheless, the power to make an order nunc pro tunc having the effect of antedating an order will not be exercised if to do so would have the effect of altering the substantive rights of the parties as distinct from overcoming procedural irregularities and difficulties. No doubt this is because it would not be in the interests of justice to disturb such rights.

32 In applying the doctrine described in Hartley Poynton in Booth v Ward [2007] VSC 364; (2007) 17 VR 195, Cavanough J observed at [73], with reference to legislative provisions that appeared not to countenance the making of such an order:

[T]here is no sufficient reason to exclude from consideration 'the power of the courts to antedate orders and judgments, which comprehends from its terms making orders nunc pro tunc'. Such orders are not granted to alter the substantive rights of parties but only to overcome procedural irregularities and difficulties. On the other hand, the power 'is an inherent power of common law courts to remedy a situation by dating an order in a way which could give effect to the justice of the case. It is a broad power and thus capable of adaptation to suit the circumstances arising in any particular case.'

33 Although in the Alvisse cases Murray J appears to have treated s 25 of the Act as compelling a conclusion that a continuing detention order must operate prospectively for a period of one year from the date when that order was made, such a conclusion was not an essential element in the resolution of any of the issues which had to be decided in those cases, nor was it a matter of controversy which was directly addressed or which attracted competing submissions by the parties. Accordingly, I consider, with respect, that those observations must truly be regarded as obiter dicta as counsel for the Director has submitted. Section 25 itself directs that a continuing detention order has effect in accordance with its terms and, accordingly, if any one of the terms of the order provides that it shall take effect as from a particular date (not necessarily the date upon which it was made) or that the 12-month period of the order will expire on some other date, thus triggering the obligation for a review to be conducted then or as soon as practicably afterwards, consistently with s 25, the continuing detention order will take effect in accordance with that and its other terms. Counsel for the respondent also relied upon the observations of McKechnie J in DPP (WA) v Teague [2010] WASC 58 in support of the proposition, already noted, that there has already been judicial recognition of the potential to backdate a continuing detention order.

34 Further, by his counsel, the respondent has submitted that the 'backdating' of this continuing detention order did not have the effect of altering any of the substantive rights of the parties as distinct from overcoming the procedural and logistical difficulties set up by the Act in relation to the timing and determination of the initial application. In this regard, s 8(3) of the Act stipulates that an application by the Director for relevant orders 'cannot be filed unless there is a possibility that the person might be released from custody within the period of six months after the application is made'. There must then be a preliminary hearing within 14 days (s 11) at which time the application may be fixed for hearing at a later date and in the interim the offender must be assessed by two psychiatrists (s 14). A full hearing will follow and, as this case exemplifies, that itself may involve adjournments while additional evidence is sought or investigations conducted.

35 Accordingly, it is obvious, from this case and others, that an offender will often remain in custody beyond the expiry date of his or her sentence as a result of orders made under s 14(2) pending the final determination of the application commenced by the Director. Consequently, the respondent submits that the court should not impute to the legislature an intent that an offender should not get the benefit of time spent in custody pending the outcome of the application made under the Act.

36 A continuing detention order made under s 17, taking effect as prescribed by s 25, is, of course, of indefinite duration and does not expire at the end of 12 months or any other period. It continues 'until rescinded by a further order of the Supreme Court' - s 25. It is the review under s 29 which must be carried out as soon as practicable after the end of the period of one year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made and, thereafter, as soon as practicable after the end of each one year period after its most recent review under s 30.

37 In these circumstances, it seems that very little turns upon whether or not a court exercises an inherent power to backdate a continuing detention order to operate nunc pro tunc, as the respondent submits was done in this case, or whether, by the terms of the order itself the court directs, expressly or by implication, that although the order is made on some subsequent date the period for the annual review will date from an earlier date such as, as happened in this case, the date from which the respondent was kept in custody solely by reason of the interim order made under s 14(2) pending the final hearing and determination of the Director's application.

38 In the present case, I am not conscious of having been asked to make or of having made pursuant to the inherent power the continuing detention order on a nunc pro tunc basis. The order was made and recorded on 23 December 2010 without any suggestion or recognition that it should be otherwise. By its terms, and deliberately after full consideration, it did contain a provision to the effect that the first review should be conducted on or as soon as practicable after 26 June 2011 in recognition of the fact that the respondent had first been in custody from a year earlier than that date pursuant only to orders made under s 14. That is an order which, consistently with s 25 of the Act, is capable of taking effect according to its terms.

39 Counsel for the respondent submitted that the Director's application to recall and 'clarify' or vary the orders or declarations made on 23 December 2010 insofar as they dealt with the date for the first review under s 29(2)(a) of the Act simply could not be entertained because those orders and declarations were final. Notwithstanding that the formal order of the court had not been extracted and sealed, these orders were nevertheless entered and recorded on the court record and resulted in the warrant which then issued for the continuing confinement of the respondent. In this respect, counsel invoked a well-known and long-established doctrine. This 'finality principle' has been expressed on many occasions, but one compendious example is contained in the joint judgment of Spender, Gray and Logan JJ in the Full Court of the Federal Court of Australia in Eastman v The Queen [2008] FCAFC 62 [22] where their Honours said:

... [t]he final and binding effect of a judicial determination forms the basis of a number of principles. A judgment of a superior court of record is binding on the parties to the proceeding in which it is given. It cannot be ignored, or treated as a nullity, whatever defects there might be in it. Even if the judgment is beyond the jurisdiction of the court giving it, this does not deprive it of its binding effect, and it must be obeyed unless and until properly set aside, eg on appeal: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590 per Rich J, 598 per McTiernan J and 607 per Williams J, and Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at [20] and [53] per Gaudron J, [148] per McHugh J, [216] per Gummow J, [255] per Kirby J and [334] - [344] per Hayne and Callinan JJ. The use of the word 'nullity' by Watkins LJ giving the judgment of the Court of Appeal in Iqbal Begum v R (1985) 93 Cr App R 96 at 100, to describe a plea, trial, conviction and sentence in a criminal case in the Crown Court that had miscarried because the interpreter provided spoke a different language from the first language of the accused, was clearly erroneous, if it was intended to mean that the trial could be treated as if it had not occurred. At least in relation to a judgment of a superior court of record in Australia, no such description could be applied, if it had such a meaning.

40 Explanations of the principle of finality are also to be found in other cases, including Stambulich v Ekamper [No 4] [2008] WASCA 189 [18] - [21] (Pullin JA); Leslie v GE Commercial Corporation (Australia) Pty Ltd [No 2] [2009] WASCA 28 [7] (Steytler P); and Matta v The Queen [2011] WASCA 2 [13] (Buss JA) where his Honour said, with the agreement of McLure P and Mazza JA:

Thirdly, this court does not have any express or implied general power under the Supreme Court Act 1935 (WA), the Criminal Appeals Act, the Rules of Court or any other statute to which we were referred by counsel for the appellant, or any general inherent power, to re-open and re-consider formal perfected criminal orders made by the Court of Criminal Appeal; in particular, the formal perfected orders made by that court in Matta [No 2]. See Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218; The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116.

41 In the present case, I am satisfied that my orders and declarations of 23 December 2012 were final orders and that, as far as was necessary, they have been entered in the records of the court and acted upon. It follows that there is no power now to recall them or to vary them otherwise than by a successful appeal and then only by the Court of Appeal. This is not a case where the orders or declarations were made inadvertently or contained some slip or mistake which was unintended and which could be corrected before the judgment was formally perfected. It is unnecessary here to examine the circumstances in which such a correction might occur.

42 These considerations lead to the conclusion that the kernel of the controversy is the proper statutory interpretation of the provisions in s 29(2):

(a) as soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made; ...

43 and with particular reference to what is comprehended by the term 'order' in that section of the Act. Does the term include or embrace an interim detention order made under s 14 under which the offender has been kept in custody notwithstanding that his sentence or sentences had expired or, as the applicant submits, is the meaning of the term confined to the final continuing detention order made at the completion of the proceedings as a result of the definition of the term 'continuing detention order' in s 3? There is some linguistic support for the submission that a 'continuing detention order' so defined does not include an interim detention order made under s 14 because of the terms of that definition, but questions remain as to whether such an inference or conclusion is correct or as to the proper characterisation and status of an interim detention order made under s 14. In other words, what is the proper statutory interpretation of these provisions or, at least, what is the preferred statutory interpretation having regard to their context and to the Act as a whole?

44 There can be no doubt that an order made by the court under s 14(2)(b)(i) of the Act for the offender to be detained in custody for a stated period is an order of the court. It is referred to as an order by the statute itself (s 14(2)(b)) and as such it constitutes the lawful justification for the State and any gaoler to continue to hold an offender in confinement after the expiration of the sentence or sentences which he or she has by then served. If this were not so, there would be no defence by the State or by any gaoler to a claim by the offender for release on the return of a writ of habeas corpus or for a claim for damages for unlawful imprisonment. Accordingly, there can be no doubt that such an order for continuing interim detention is a lawful order of the court and an order specifically mentioned by the Act.

45 Upon making an application under the Act, the proper officer of the court must fix a day for the matter to come on for a preliminary hearing within 14 days. The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community (s 11). If the court at the preliminary hearing is satisfied that there are reasonable grounds for believing that the court might, under s 7(1) find that the offender is a serious danger to the community, the proper officer of the court must fix a day for the hearing of the application for a div 2 order (s 14(1)). In that case, but not otherwise, the court must order that the offender undergo examination by two psychiatrists (s 14(2)(a)) and may make an interim detention order under s 14(2)(b)(i). The Act does not expressly mention what should happen if, at the preliminary hearing, the court is not satisfied that there are reasonable grounds for believing that the court might under s 7(1) find that the offender is a serious danger to the community, but the implication is obvious that in that eventuality there would be no occasion to fix a date for the hearing of an application for a Div 2 order or to order the psychiatric examinations contemplated by s 14(2)(a). Neither would there be any occasion to make an interim detention order under s 14(2)(b)(i) or (ii) although, somewhat oddly, it would be for the DPP to decide whether or not to discontinue an application for a Div 2 order - s 16(1) and (2).

46 There is no express mention in the Act of factors which should or should not be considered by the court in exercising the power to make an interim detention order under s 14(2)(b) in the event that the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community. Nevertheless, the language of s 14(2)(b) makes it clear that a discretion to decline to do so does exist - the contrast with s 14(2)(a) making it obligatory to order psychiatric examination leaves that beyond doubt. These provisions demonstrate that the making of an interim detention order under s 14(2)(b) in the exercise of a court's discretionary power is one of several steps which may be taken in the course of proceeding to deal with the Director's application under s 7. Obviously enough, whether or not such a step should be taken will be dictated by a consideration of the objects of the Act as a whole (which are described later) and with the adequate protection of the community as a very prominent, if not the main, objective. This being so, the basis is laid for an analogy of some general kind with an interlocutory injunction designed to preserve the status quo and so protect against a material risk of loss or damage pending a final determination of the rights of the parties - in this case, whether or not the protection of the public requires that an indefinite continuing detention order should ultimately be made.

47 The policy of the Act and its purposes are instantly recognisable and have been restated judicially on many previous occasions. Section 7 and s 17 proceed on the basis that one of two types of orders must be made if the Director establishes 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 and so be a serious danger to the community. If that is established, then the legislation requires that, for the protection of the community, either a continuing detention order or a continuing supervision order must be made.

48 The objects of the Act are specifically identified by s 4 which provides:

The objects of this 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.

49 Further guidance regarding the purpose of Pt 3 of the Act is provided by s 28, which states that '[t]he purpose of this Part is to ensure that a person's detention under a continuing detention order is regularly reviewed'.

50 As McClellan CJ at CL said in Attorney-General for New South Wales v Gallagher [2006] NSWSC 340 [21] with respect to the equivalent New South Wales legislation which is similar in respects to the Queensland legislation upon which the Western Australian statute has been modelled:

It is significant that when exercising jurisdiction under the legislation the Court must be mindful that the legislative purpose addresses both protection and rehabilitation and is not punitive. The fundamental objective of the legislature is the protection of the public which, where necessary, is intended to be achieved by supervision of an individual or where the statute provides his or her continuing detention. If an order is made the consequence may be the continuing incarceration of an individual or the imposition of serious restrictions on his or her liberty.

51 However, in Fardon v Attorney-General for the State of Queensland [2004] HCA 46 [20]; (2004) 233 CLR 575, 592 Gleeson CJ also observed that the existence of such legislation makes it difficult to maintain a strict division between punitive and preventive detention and previously [9] - [14] Gleeson CJ discussed at some length the necessities, and the accompanying difficulties, of a community need which obviously warranted the introduction of some acceptable statutory system of preventive restraint and went on to observe that legislative schemes for preventive detention of offenders who were regarded as a danger to the community have a long history. Although no occasion to address the nature, purpose or significance of interim detention orders arose for examination in Fardon, I consider that it must be accepted as clear beyond controversy that a decision to make such an interim order, and the character of such an order if made, is part of the same legislative purpose and is ancillary to the jurisdiction conferred on the court to make a final continuing detention order or the alternative continuing supervision order. Nothing in the legislation or in the nature or effects of the detention warrants any distinction being made between the legislative purpose, status or objective of the two forms of order except for the obvious difference that a s 14 order is of temporary duration whereas a s 17 order would be of indefinite duration, but subject to periodic review. That being the case, there appears to be no reason of substance to treat the latter as an order made under the Act but not the former.

52 When introducing the Bill for this legislation to the parliament the then Attorney General said in the second reading speech that '[a] number of important protections are contained in the Bill to ensure no person is unfairly or inappropriately incarcerated'. In that context, the then Attorney General continued:

If a continuing detention order is made, it must be fully reviewed by the Supreme Court at least every 12 months. The order can only be continued if the same test as that satisfied at the previous hearing is again satisfied; that is, that the court considers the person a serious danger to the community.

53 This appears to be at least some indication of a parliamentary intention or assumption that there would be reviews of such orders at least annually. Indeed, the heading to Pt 3 assumes that - Interpretation Act 1984 (WA) s 32(1). However, in referring to that passage of the minister's speech I realise that it still to some extent begs the question of what is meant by the reference to a 'continuing detention order' and whether or not it may be a careful use of language designed to exclude reference to an interim detention order under s 14.

54 Part 3 of the Act deals with periodic review of a person's continuing detention order. It is not insignificant that the heading of that part of the Act is 'Annual reviews of detention' and it cannot be a coincidence that this reflects the language, previously noted, used by the then Attorney General in the second reading speech. Importantly, s 28 provides:

The purpose of this Part is to ensure that a person's detention under a continuing detention order is regularly reviewed.

55 This emphasis upon regular review is obviously a temporal reference meaning or implying that reviews are due at constant intervals of 12 months or, as the following sections provide, as close to the expiration of each succeeding 12-month period as is practicable. Such an expression of legislative purpose lends no support for occasional or unpredictable extensions of any of the annual periods for review. The phrase 'as soon as practicable' expresses tolerance of minor delays due to inexorable circumstances, but no more. Furthermore, the reference to 'regular reviews' in the context of s 28 is plainly a reference to regularity of review during the whole of any continuing period of detention under a s 17 order. It is not apt to embrace the prospect that the first review may be 12 months after the original detention order, and the next, because of varying circumstances and needs for adjournment, be 18 months following and the second or third at periods of 15 or 21 months after each preceding review. It is readily apparent that a sequence of reviews at periods of longer than 12 months could, if carried far enough, produce the result that there may only have been four such reviews after completion of six years' continuing detention, a result which would be repugnant to Pt 3 of the Act.

56 Lest it be thought that such a consequence can be avoided because s 29(2)(b) expressly provides for annual review after the first review but that, by contrast, the first review under s 29(2)(a) need only be 12 months after the making of the continuing detention order under s 17, notwithstanding that that order may have been preceded by a period of detention of more than six months, as in this case, because of orders made under s 14, such a suggestion must be rejected for similar reasons. That approach would not achieve an annual review because the offender would, by then, have been in detention by orders made under the Act which had effect for longer than 12 months. There is no reason to accept an interpretation which would provide for or allow a longer period of detention before the first review than for any second or subsequent review. Such a program of review would not be regular review.

57 The purpose of the Act, the evident policy of regular annual review and of ensuring that an offender is not detained under a continuing detention order for longer than 12 months without review by a court as soon as practicable, is clearly discernible from the language of the statute. It allows adoption of an interpretation of s 29(2)(a) advanced by the respondent which is readily available. Such an interpretation is one which will treat initial detention under an interim order made under s 14(2)(b) as constituting detention under the eventual continuing detention order if made on the application which led to the s 14(2)(b) order. Such a construction appears to be harmonious with the Act as a whole and with the context of Pt 3. The only dissonance with other parts of the Act is the fact that the definition of 'continuing detention order' under s 3 does not make express reference to an interim detention order under s 14. However, that dissonance should not prevent the adoption of an interpretation of s 29(2)(a) which includes reference to an order under s 14 as being a continuing detention order or a part of a continuing detention order later made.

58 The principal feature of the applicant's submissions that the term 'order' in s 29 of the Act does not apply to an interim order made under s 14(2) is the definition of the term 'continuing detention order' in s 3 which speaks only of Div 2 or Div 4 orders as already explained. The question which now arises is whether or not that definition is to be taken to curtail the meaning of the term 'order' in s 29 so as to exclude what is obviously an order of the court made under s 14 with similar status and coercive effect but only of temporary duration.

59 In addressing this question one must adopt the approach dictated by the Interpretation Act 1984 (WA) which, by s 18, provides:

18**. Purpose or object of written law, use of in interpretation**

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.

60 I have already concluded that one of the purposes or objects of this legislation is to ensure that there are reviews of continuing detention orders at regular intervals and no less frequently than annually. This is also consistent with the then Attorney General's second reading speech, previously quoted. Is such a purpose or object inconsistent with the terms of the statute and, if so, should the supposed inconsistency in the linguistic terms employed in Pt 3 prevail?

61 There are many examples where words in a statute have not been given their literal meaning - see French CJ, Hayne, Crennan, Kiefel and Bell JJ in Maurice Blackburn Cashman v Brown [2011] HCA 22 [34] where, after acknowledging that the meaning of the phrase that best accords with its context should be adopted, their Honours qualified the linguistic meaning of s 68(4) of the Accident Compensation Act 1985 (Vic) to effect the correct construction of that provision. In doing so, their Honours cited with approval the observations of Eames JA in Pope v WS Walker & Sons Pty Ltd [2006] VSCA 227; (2006) 14 VR 435 [29] where his Honour said:

[29] The High Court has emphasised the importance of context in resolving questions of statutory interpretation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28 [69]; [1998] HCA 28; (1998) 194 CLR 355, 381. Likewise, the court endorsed an approach to interpretation which avoids producing inconvenient or anomalous results. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 Brennan CJ, Dawson, Toohey and Gummow JJ held:

'... Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous ... [I]f the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.'

[30] McHugh JA in Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404, 423, in a passage later approved in Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 20, held:

'... A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.'

62 In a similar vein, it was held by Dixon CJ and Fullagar J in Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, 426 - 427 that when interpreting a provision in legislation '[w]ords may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency'.

63 In Project Blue Sky McHugh, Gummow, Kirby and Hayne JJ had observed [69] - [70]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: see Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213, per Barwick CJ. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole': Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South-West Water Authority v Rumble's [1985] AC 609, 617 per Lord Scarman, 'in the context of the legislation read as a whole.' In Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397, Dixon CJ pointed out that 'the context, the general purpose and policy of the provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed: Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440, per Gibbs J. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will be give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions: see Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574, per Gummow J.

64 Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which is the subordinate provision, and which must give way to the other': Institute of Patent Agents v Lockwood [1894] AC 347, 360 (Lord Herschell LC). Only by determining the hierarchy of the provisions would it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme - see generally Pearce, G P and Geddes R S, Statutory Interpretation In Australia (6th ed, 2006) [4.2] and [4.3].

65 Adopting this approach, I consider that it is s 29 and s 31 of the Act which are the dominant provisions which apply in relation to the nature and frequency of reviews of continuing detention orders. It is true that the definition contained in s 3 of a 'continuing detention order' does not include an interim order made under s 14 but, in my view, it would be absurd and incongruous to treat that definition as excluding from the scope of s 29 and s 31 orders made under s 14(2)(b). To do so would not conform to the policy of regular review of detention orders contemplated by s 28 of the Act, and would leave the frequency of such reviews hostage to unforeseen and unpredictable delays in the processing and determination of the application caused by unforeseen logistical circumstances outside the scope of matters addressed by parliament when determining the frequency of such reviews by s 29 and s 31 themselves.

66 In the current situation, such a construction would have delayed review of the respondent's continuing detention order by six months, resulting in the highly undesirable situation where he would have been deprived of his liberty for that period without having been sentenced for an offence, and without receiving a proportionate reduction in the period before his next opportunity for release, conditional or otherwise, upon review of his level of risk to the community. Furthermore, any postponement of the first annual review of the respondent's incarceration resulting from such a construction would have the potentially prejudicial effect of deferring the point from which the respondent would be able to seek review of his continuing detention order on his own behalf under s 30 of the Act.

67 The issue under consideration bears on the liberty of persons confined by continuing detention orders, and the right and expectation which the statute gives to them to have such orders regularly reviewed. A construction of the Act which is more favourable to fixed and regular review, and hence to their prospects of regaining liberty or at least a less restricted liberty, should, unless excluded by context or purpose, be adopted.

68 As the respondent, Mr Brown, was due for release on completion of service of his sentence on 26 June 2010, he remained in custody from then on only because of the interim detention order made under s 14(2)(b), and later extended until the order under s 17 was finally made on 23 December 2010. He would not have been in custody between those dates unless the s 14(2)(b) order had been made. In the circumstances, I consider that the s 14(2)(b) order should be regarded as an order within the scope of s 29 and the final order made under s 17 on 23 December 2010 should be treated, as I treated it, as determining the status of the respondent and taking effect from the date when he was first constrained under the provisions of the Act, namely the date when the s 14(2)(b) order was first made. The decision to declare that the order was due for review on or as soon as practicable after 26 June 2011 follows directly from this.

69 This leads me to the conclusion that the preferable interpretation of the Act is to treat the period prescribed by s 29(2)(a) as referring to the period after the expiration of the service of the sentence or sentences which have been imposed upon the offender and which led to applications under this legislation for an extension or the renewal of his imprisonment. Accordingly, I consider that the review in this case is due on or as soon as practical after 26 June 2011.

70 The effect of these conclusions is to confirm the orders and declaration as to the due date for the review made on 23 December 2010. I am also of the view that even if I had been of a contrary opinion, it would not have been possible or appropriate for me to alter or vary the terms of the orders made on 23 December 2010 as they constituted a part of the final judgment entered on that occasion, even if not extracted. The only avenue for a review would have been by way of appeal. Be that as it may, even if I had the power to vary the terms of those orders, I would decline to do so and, consequently, the application by the Director to revise those orders and make declarations in the terms of the application of 18 May 2011 must be refused.

71 For reasons already canvassed, in those circumstances, I invited an application by the Director to be made orally, and supplemented in the ordinary way as soon as possible, for a review to be conducted on or as soon after 26 June 2011 as was practicable. Counsel agreed and such an application was made and dealt with on the basis that it would be adjourned for hearing on 8 August 2011. Following that, counsel submitted a minute of consent orders for directions to be made on that application which I approved and endorsed on 21 June 2011. Those orders and directions are:

(1) the application for an annual review of detention pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 be heard on 8 August 2011;

(2) the CEO arrange for examination and report upon the respondent by Dr Sam Febbo; such report to be provided to the Applicant on or before 19 July 2011;

(3) the psychiatrist named in order 2 shall liaise with the Department of Corrective Services as to the management plan (if appropriate) for the respondent;

(4) pursuant to s 122 of the Criminal Investigation Act 2006, the psychiatrist may be supplied with and may view any audio-visual recordings of interviews with the respondent, or transcripts of the same for the purpose of preparing the interview;

Sexual Offenders Act 2006

Prisoners (Sexual Offenders) Act 2003

Compensation Act 1985

Investigation Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 2] [2011] WASC 191 (11 August 2011)

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DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 2] [2011] WASC 191 (11 August 2011)

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