DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WILLIAMS [2007] WASCA 206 (4 October 2007)

Court of Appeal (WA)|2007-10-04|Before: Martin CJ

1 MARTIN CJ: At the conclusion of the hearing of this appeal, the Court announced that the appeal would be allowed, the decision of the trial judge quashed and the matter be remitted to the trial judge for further hearing. It was also ordered that the respondent be detained in custody until that hearing. These are the reasons for that decision.

2 This is an appeal from a decision of a judge of this court dismissing an application by the Director of Public Prosecutions (the DPP) for an order for the continuing detention or supervision of the respondent, Dexter Charles Williams (Mr Williams), on the basis that he is a serious danger to the community. The application was brought under the Dangerous Sexual Offenders Act 2006 (WA) (the Act). This is the first appeal to the Court of Appeal under that Act.

Before the court dealing with an application under this 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.

4 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community and that the court has to be satisfied:

(a) by acceptable and cogent evidence; and

(b) to a high degree of probability.

Those provisions are consistent with s 40 of the Act which provides that proceedings under the Act, or on an appeal under the Act, are to be taken to be criminal proceedings for all purposes. The effect of that provision is of course to require the application of the criminal standard of proof; that is, proof beyond reasonable doubt.

5 Section 7(3) specifies 10 matters to which the court is required to have regard to in deciding whether to find that a person is a serious danger to the community. It is not necessary to enunciate those matters in this appeal.

6 Section 8 of the Act provides that the DPP may file an application for orders under s 14 and s 17(1) of the Act in relation to a person who is under sentence of imprisonment wholly or in part for a serious sexual offence. The expression "serious sexual offence" is defined (by s 3 of the Act) to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (the Evidence Act). In general and somewhat imprecise terms, the term defined in the Evidence Act includes the sexual offences specified in Pt B of Sch 7 of the Evidence Act for which the maximum penalty that may be imposed is seven years or more imprisonment.

7 Section 14 of the Act provides that if the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a serious danger to the community, the court must fix a date for the hearing of the application and must order that the offender undergo examinations by two psychiatrists named by the court.

8 Section 17 is found in Div 2 of Pt 2 of the Act. Orders that may be made pursuant to s 17 are defined by s 3 of the Act to be "Division 2 order". Section 17 is in the following terms:

Division 2 orders

(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.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

9 An order made pursuant to s 17(1)(a) of the Act is described by the Act as a continuing detention order, whereas an order made under s 17(1)(b) of the Act is described by the Act as a supervision order.

10 Section 3 of the Act provides that "'serious danger to the community' has the meaning given to the term in section 7". However, s 7 does not define the expression, but provides a prerequisite to a finding that a person is a "serious danger to the community", in that it must first be found that there is an unacceptable risk that, if a person is not made subject to a continuing detention order or a supervision order, the person would commit an offence defined as a serious sexual offence.

11 By using two different expressions; namely, "serious danger to the community" and "unacceptable risk" and specifying that a finding of the latter is a prerequisite to a finding of the former, the legislature appears to be connoting that the two expressions have a different ambit. This in turn tends to the conclusion that it is at least theoretically possible that somebody could pose "an unacceptable risk" but not be "a serious danger to the community". One theoretical possibility is that the legislature intended the reference to "the community" to connote a danger to a broad class or group, thus excluding cases in which the unacceptable risk was posed only to an identifiable individual.

12 However, in this case, the trial judge found that Mr Williams was both "a serious danger to the community" and that there was unacceptable risk that if Mr Williams was not subject to some form of order he would commit a serious sexual offence. It is not clear from his reasons whether he regarded these as separate issues and if so, what meaning he took to be connoted by those expressions. But there has been no issue taken in relation to those findings in this case, nor was any considered argument presented on the question of whether the expression "serious danger to the community" had a different meaning and ambit to "unacceptable risk" and if so, what. Accordingly, those are questions best left to another day.

13 Section 18 of the Act sets out certain mandatory requirements of a supervision order, and later provisions of the Act regulate the amendment of conditions attached to a supervision order.

14 Part 3 of the Act provides for the annual review of a continuing detention order.

15 Part 4 of the Act deals with appeals. Section 34 provides that either the DPP or a person in relation to whom the court makes a decision under the Act may appeal to the Court of Appeal against the decision. Section 36 of the Act provides that an appeal is to be by way of re‑hearing and further provides that the Court of Appeal has all the powers and duties of the court making the decision against which the appeal is made and may draw inferences of fact, not inconsistent with the findings of the court making the decision against which the appeal is made. Section 36 also empowers the Court of Appeal to receive further evidence as to questions of fact, on special grounds.

16 That power was exercised in this case, in order to receive into evidence two affidavits pertaining to events which have occurred since the decision under appeal, and a certificate showing orders which were imposed by the Armadale Magistrates Court since the decision under appeal. It is neither necessary, nor appropriate to attempt to categorically define the circumstances that will constitute "special grounds" for the reception of new or fresh evidence, but plainly that expression is broad enough to encompass evidence with respect to material events that have occurred since delivery of the decision under appeal. It is entirely consistent with those provisions of s 36 which provide that the appeal is to be by way of re‑hearing and that the Court of Appeal is to have all the powers and duties of the court making the decision under appeal, to construe the expression "special grounds" as encompassing events which have occurred since the decision under appeal and which would be relevant to the exercise of the powers conferred upon the Court of Appeal. In this case, those events are relevant to the question whether, in the event the appeal was successful, the Court should itself dispose of the case or alternatively, remit it to the trial Judge for further hearing.

17 There is no doubt that Mr Williams was a person to whom the Act potentially applied, being a person who was under sentence of imprisonment for a serious sexual offence at the time the application under the Act was brought. The offences giving rise to jurisdiction under the Act were offences of sexual penetration of a child under the age of 13 years in approximately September 1997 and another offence of sexual penetration of a child under the age of 13 years in December 1998. On 13 March 2000 Mr Williams was sentenced in the District Court to a total of 11 years imprisonment in respect of those offences, which sentence was specified to commence from 11 March 1999. There was an order that Mr Williams be eligible for parole.

18 The trial judge reviewed in detail the evidence which had been adduced at trial in his reasons for decision. Because no party to the appeal challenges the findings of fact made by the trial judge, it is unnecessary to elaborate upon that review in these reasons. Based on the evidence adduced and for the reasons which he gave, the trial judge found "that the respondent is a serious danger to the community and that there is an unacceptable risk that if he is not subject to some form of order he will commit a serious sexual offence" [43].

19 The trial judge went on to review the evidence that had been given in relation to the prospect of a supervision order; that is to say, an order pursuant to s 17(1)(b) and by which Mr Williams would not be detained in custody, but would be subject to conditions while living in the community. After reviewing the evidence the trial judge concluded that the evidence was:

not sufficiently persuasive for me to find that an order that the offender be detained in custody for an indefinite term for controlled care or treatment is the only order that can be made to ensure the adequate protection of the community. If there was evidence that no supervision order could adequately protect the community, detention may be the only possible order. However, the evidence neither establishes that a supervision program is appropriate nor that a supervision program is inappropriate ...

The lamentable fact is that for whatever reason, and the lack of funding must be one strong reason, the Government, represented by the Department of Corrective Services, has made no worthwhile effort at all to investigate the possibility of a supervision order within the community. [54] ‑ [55].

20 The trial judge then considered the possibility of a supervision order of a kind proposed by Dr Dear, a witness called on behalf of Mr Williams. He concluded that a supervision order in those terms was not adequate to protect the community.

21 Before commencing his review of the evidence, the trial judge expressed disagreement with the view expressed by Murray J in The State of Western Australia v Latimer [2006] WASC 235, in which his Honour had observed:

I turn then to the decision whether I should make a continuing detention order or a supervision order. I do so against the background of my view that, as the Act is to be properly construed, I should choose the option which is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community [49].

After citing this passage, the trial judge went on:

I would put it rather differently. Conformably with my view that these are adversarial criminal proceedings, it is not a question of choice for the Judge but a question of the applicant discharging its burden of proof of facts beyond reasonable doubt as to an appropriate order.

The applicant must establish that the adequate protection of the community, which is the paramount consideration, will be achieved by an order for detention or an order for supervision [5] ‑ [7].

22 This approach to the construction of the Act was pursued by the trial judge in his conclusions, which he expressed in the following terms (Director of Public Prosecutions (WA) v Williams [2007] WASC 95):

The applicant has satisfied me that the respondent is a serious danger to the community but has failed to satisfy me that a detention order should be made in the light of the lack of evidence that a supervision order - a less restrictive option - would be a better order to adequately protect the community. Dr Dear's evidence, which is a reasonable possibility, is that some form of supervision order may ultimately provide for the safety of the community better than a detention order.

No real work at all has been done to explore whether a supervision order is feasible and would adequately protect the community and, on the evidence before me, I cannot be satisfied that a supervision order is appropriate.

On these applications, the Court is not exercising a discretion analogous to that exercised by the Prisoners' Review Board.

Rather, the Court exercises jurisdiction to determine a matter in controversy between parties on the basis of evidence proved to a particular standard of proof. The applicant carries the obligation to prove its case that a respondent is a serious danger to the community and that to ensure the protection of the community a particular order should be made.

While the applicant has discharged its obligation and established that the respondent is a serious danger to the community, the evidence falls well short of establishing what order should be made in consequence to ensure the protection of the community.

The result must be that the application is dismissed [62 ‑ 67].

23 In essence therefore, the trial judge concluded that because the DPP had failed to prove that no form of supervision order could adequately protect the community, it had failed to prove the facts necessary to justify the making of a continuing detention order.

24 The additional material received by the Court pursuant to the powers conferred by s 36 of the Act establishes that Mr Williams was released from custody on the afternoon of 26 April 2007, which was the day on which the decision under appeal was delivered. Prior to his release, Mr Williams was advised of his obligation to report under the Community Protection (Offender Reporting) Act 2004 (WA) (the CP(OR) Act). However, he apparently failed to comply with the obligation to report and was later arrested and charged with failing to comply. On 25 May 2007 he pleaded guilty to that charge and was fined $200 and released.

25 On 7 June 2007, an application was made to the District Court for an interim child protection order relating to Mr Williams under the provisions of s 92 of the CP(OR) Act. An interim order was granted by Chief Judge Kennedy, the terms of which were apparently breached by Mr Williams on 11 June 2007. He was then arrested and remanded in custody to appear at the Armadale Magistrates Court on charges of breaching the interim order. Those charges were heard on 16 August 2007. Mr Williams was convicted of three counts of breaching the order and was sentenced to a community based order for a period of 6 months. Supervision and programme requirements were attached to the community based order. The precise circumstances of each of these breaches and their significance to the question of whether Mr Williams was an appropriate candidate for a supervision order, were not established by the limited evidence before us.

26 The DPP argues that having found that the respondent was a serious danger to the community on the proper construction of s 17 of the Act, the trial judge was legally obliged to make one or other of the orders for which s 17 makes provision; namely, either a continuing detention order or a supervision order. It was argued that the structure of the section compels the conclusion that despite the use of the word "may" in relation to the making of such an order; a word which is ordinarily construed as connoting the existence of a power or discretion, rather than a duty or obligation, the word should be construed as if it were the word "shall", so that the court was obliged to make either a continuing detention order or a supervision order. Reliance was placed on a line of authorities said to support that proposition.

27 Some of those authorities relate to the construction of statutory provisions in a very different context. For example, in Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 12; (1971) 127 CLR 106, the word "may" was construed in a context in which the Commissioner for Taxation was empowered to provide a rebate in the assessment of tax in the event that he was satisfied of certain matters. In that particular context, the High Court held that if the Commissioner was satisfied of the matters specified, he was obliged to allow the rebate.

28 In R v Mesiti [1984] WAR 21, the construction of s 746A of the Criminal Code (as it then was) arose for consideration. That section provided that if a person bound by a recognisance to attend trial failed to attend, the court "may order" that the recognisance be estreated and that any surety bound by the recognisance shall forthwith pay to the Attorney General the sum by which they would be bound. Kennedy J held that upon the occurrence of the events giving rise to the power to order forfeiture of the recognisance, the court was obliged to order forfeiture and had no discretion to decline to make such an order. That view of s 746A was followed in Ryder v The State of Western Australia (Unreported; WASCA, Library No 5770, 28 March 1985).

29 In Director General of Community Services v McCann (Unreported, WASC, Library No 6234, 3 April 1986), Pidgeon J held that under s 30 of the Child Welfare Act 1947 (WA), once the court had made a declaration that a child was in need of care and protection, the court was obliged to exercise one or other of the options given to it, notwithstanding that the powers were conferred upon the court by the use of the word "may". Pidgeon J arrived at that conclusion by reference to the process specified by the Act, including in particular the making of a declaration which, in his Honour's view, would be pointless unless it was followed by an obligation to exercise one or other of the powers conferred by the Act. His Honour also took into account the evident policy of the Act.

30 In Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575, the High Court considered the constitutional validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). That legislation dealt with the same subject matter as the Act in question in this case, and in not dissimilar terms. Section 13 of the Queensland Act provided:

13(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order ('a serious danger to the community'). ...

(5) If the court is satisfied as required under subsection (1) the court may order -

(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment [continuing detention order]; or

(b) that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order [supervision order].

31 The issue before the High Court was whether the legislation as a whole was so incompatible with the functions of a state court as a potential repository of federal judicial power as to contravene the limitations upon state legislative power implied into the Commonwealth Constitution enunciated in the decision of the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. Accordingly, the question of the proper construction and effect of the Queensland Act was not central to the issues involved and it seems unlikely that a great deal of attention would have been directed to the precise effect of the provisions of s 13 to which I have referred.

32 However, reference is made to the structure of the legislation and the powers of the court in a number of judgments. Gleeson CJ observed that the Act "confers a substantial discretion as to whether an order should be made, and if so, the type of order" [19]. Similarly, McHugh J was of the view that if the court found that the Attorney‑General had satisfied the court that the person concerned was a serious danger to the community, the court had a discretion as to whether it should make an order under the Act, and if so, what kind of order (see [34] and [44]). Conversely, Gummow J observed:

13(5) states that if the Supreme Court attains the necessary satisfaction it 'may order' what is a 'continuing detention order' or the lesser option of conditional release under a 'supervision order'. It will be assumed that 'may' is used here in a sense that requires one or the other outcome, without the possibility of declining to make either order [109].

33 Although the matter was not expressly dealt with in the joint judgment of Callinan and Heydon JJ, the terms of their decision appear more consistent with an assumption that the discretion to be exercised was limited to a discretion as to the form of order to be, not as to whether any order would be made at all. For example, they observed:

Even if the Court concludes under s 13(1) of the Act that the prisoner is a serious danger to the community, it still has a discretion under s 13(5) as to the way in which the application should be disposed of. It may, for example, order that the prisoner be released from custody subject to conditions [227].

34 Different views have been expressed by the judges of this court as to whether s 17 of the Act confers a discretion to make no order, notwithstanding that the court has found that the person concerned is a serious danger to the community. The trial judge in this case and Hasluck J in Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71 at [183] ‑ [184] have held that there is a discretion to make no order, notwithstanding that the court has found that the person concerned is a serious danger to the community. However, Murray J has held otherwise in The State of Western Australia v Latimer at [19] ‑ [22] and The State of Western Australia v AA [2006] WASC 279 at [7].

35 In Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 the High Court held that a provision which specified that the Director‑General of the Department of Health "may suspend or cancel a licence or authority" on certain grounds including, in the case of a licence to supply methadone, that the supply of methadone was causing disruption to the amenity of the area in which the premises from which it was being supplied were situated, conferred a discretion to cancel the licence and did not impose a duty to cancel it, even if the Director‑General was satisfied that the supply of methadone was causing disruption to the amenity of the relevant area.

36 It is difficult to extract any consensus or general principles from this review of the authorities. That is probably because the question of whether the word "may" confers a power or a duty is to be resolved as a matter of statutory construction turning upon the language of the statute, the context of the relevant provision and the general scope and objects of the legislation.

37 The differential effect usually achieved by the use of the word "may", as compared to the use of the word "shall", is reinforced by s 56 of the Interpretation Act 1984 (WA), which provides:

(1) Where in a written law the word 'may' is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.

(2) Where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.

38 The distinction between the effect of the use of the two terms is well established and well known to parliamentary draftspersons and legislators.

39 It is difficult to envisage any circumstances in which a court could properly exercise a discretion to make no order after finding that the offender is a serious danger to the community. That is because s 17(2) provides that in deciding whether to make an order under s 17(1) "the paramount consideration is to be the need to ensure adequate protection of the community". If the court finds that an offender is a serious danger to the community, having necessarily found that there is an unacceptable risk that the person would commit a serious sexual offence, unless made subject to a continuing detention order or a supervision order, it is difficult to see how a court could then decline to make either form of order consistently with the legislative direction to ensure the adequate protection of the community. However, given the infinite range and variety of circumstances that could be imagined, I am not prepared to say that such a circumstance could not ever exist.

40 The Act confers upon the court quite extraordinary powers to deprive a person of their liberty, not as punishment for an offence they have committed, but in order to protect the community from a propensity to commit further offences. In that particular context, I favour the view that when the legislature used the word "may" it intended it to carry its usual and well established meaning and thereby to confer upon the court a discretion as to whether any order will be made. However, as I have observed, the circumstances in which it would be proper to exercise that discretion will necessarily be extremely rare, if they ever exist.

41 The DPP also argues that the trial judge erred by construing the Act so as to impose upon the DPP an obligation of proving beyond reasonable doubt that no form of supervision order would provide adequate protection to the community before the court could make a continuing detention order. With respect to the trial judge, I can see nothing in the language or purpose of the Act which would give rise to that construction of its provisions. The structure of the Act is to create a threshold over which the DPP, as applicant for an order under the Act, must pass before any order can be made. That threshold is a finding to the effect that the offender is a serious danger to the community. Such a finding can only be made in accordance with the requirements of s 7, which impose standards of proof that must be met and list a range of considerations which a court must take into account before making such a finding.

42 In this case, that finding was made and Mr Williams has not contested that finding in the course of this appeal. Accordingly, under s 17 the trial judge was empowered to make either of the forms of order for which s 17 makes provision and was required, in the exercise of that power, to give effect, as a paramount consideration, to "the need to ensure adequate protection of the community".

43 In that statutory framework I am unable to see any support for the proposition that a continuing detention order can only be made if the DPP has proven, beyond reasonable doubt, that no form of supervision order would adequately protect the community. The burden of proof imposed upon the DPP under the Act, is to satisfy the court beyond a reasonable doubt (because these are criminal proceedings) and to the particular standards and in accordance with the process specified by s 7 of the Act, that the person the subject of the application is a serious danger to the community. Once that burden has been discharged, the question before the court is whether one or other of the forms of order available to the court under s 17 of the Act should be made or whether, in an extraordinary circumstance which I cannot presently contemplate, no order should be made. With respect to the trial judge, it is not correct to say that there is a burden on the DPP to prove beyond reasonable doubt that one or other particular order is the only order that will satisfy the paramount consideration as to the need to ensure adequate protection of the community.

44 The trial Judge found that the evidence did not establish whether or not a form of supervision order could adequately protect the community so that a continuing detention order was unnecessary. In that circumstance, in my opinion, the only course reasonably open to him, conformably with the obligation to give paramount consideration to the adequate protection of the community, was to adjourn the case so that evidence could be adduced which would enable that issue to be resolved. Having found that there was an unacceptable risk that Mr Williams would commit a serious sexual offence unless made the subject of either a continuing detention order or a supervision order and that Mr Williams was a serious danger to the community, in my respectful opinion, it was not consistent with the statutory obligation to give paramount consideration to the adequate protection of the community to simply dismiss the application and make no order because of a view that insufficient evidence had been adduced on the subject of which order should be made.

45 The Act does not specifically empower the court to give directions with respect to the evidence that is to be adduced in proceedings under the Act, other than through the operation of s 14(2), which obliges the court to order that the offender undergo examinations by two psychiatrists named by the court for the purpose of preparing reports required by s 37 of the Act. However, the structure and subject‑matter of the legislation makes clear that the court acts under the Act as a guardian of the public interest, balancing the need to protect the community from the commission of serious sexual offences with the public interest in protecting individual liberty and freedom, only constraining those liberties and freedoms to the extent necessary to ensure the adequate protection of the community. The court has an inherent power to control its own proceedings and, in the context of this particular legislation, it seems to me to be clear that such power extends to the issuing of directions with respect to the nature of the evidence that is to be adduced in proceedings under the Act. Accordingly, in the circumstances of this case, I have no doubt that the trial judge had power to direct the DPP to adduce further evidence on topics which the trial judge could have identified and to adjourn the matter to enable that evidence to be adduced. No doubt as part of those directions the trial judge could have required prior service of the evidence to be adduced upon Mr Williams and his legal representatives, together with the opportunity to provide further evidence on those topics in response to the evidence to be adduced by the DPP.

46 Counsel for Mr Williams argues that the orders made against Mr Williams under the CP(OR) Act since delivery of the decision of the trial judge led to the conclusion that those orders now adequately protect the community, and there is no need to make a continuing detention order. However, that submission is directly contrary to the express finding made by the trial judge, to the effect that a form of supervision order proposed on behalf of Mr Williams would not provide adequate protection to the community. There is no reason to disturb that finding, which was made after a careful review of all relevant evidence. The submission also fails to recognise the possible significance of the fact that Mr Williams has now apparently breached his obligations to report and conform to prescribed standards of behaviour on a number of occasions since being released into the community.

47 For these reasons, in my opinion the trial judge erred in the approach which he took to the construction of the Act and, in particular, erred by requiring the DPP to prove beyond reasonable doubt that no form of supervision order could adequately protect the community before the court could make a continuing detention order. In my opinion, having found that there was an unacceptable risk that Mr Williams would commit a serious sexual offence unless made the subject of either a continuing detention order or a supervision order, and having found that Mr Williams was a serious danger to the community, the proper course for the trial judge to have followed was to direct that the DPP adduce evidence on topics specified by the trial judge, directed to the question of whether a supervision order could be made which would provide adequate protection to the community. In my opinion, the trial judge should have issued those directions and adjourned the case to enable that evidence to be adduced, and should also have made appropriate directions to provide procedural fairness to Mr Williams.

48 The question arises as to the course which should be followed in light of that conclusion. Given that the trial judge has had the benefit of hearing the evidence adduced to date, and seen the witnesses from whom that evidence was called, there are obvious advantages in returning the

matter to him in order that he might follow the course which I consider he should have followed. In light of the events which have apparently occurred since delivery of his judgment, that course will have the added advantage that evidence can be led in relation to those matters so that the facts pertaining to them can be fully established and consideration given to the extent to which those events bear upon the appropriateness of a supervision order.

49 Having regard to the findings made by the trial judge, it is appropriate for Mr Williams to be detained in custody until the matter can be further heard. The question of Mr Williams' continuing detention should then be remitted to the control of the trial judge. Under s 14(2) of the Act, once the court has found that there are reasonable grounds for believing that an offender might be found to be a serious danger to the community, the court is empowered to order the detention of the offender for a period, pending determination of the application under the Act. Such a finding has been made in this case and, by virtue of s 36 of the Act, the Court of Appeal is given all the powers of the court of first instance. Accordingly, at the conclusion of the appeal hearing, after announcing the decision of the Court, that power was exercised to direct that Mr Williams be detained in custody until 25 September 2007, which is the date upon which the matter will be returned before the trial judge for further directions. As I have mentioned, the question of Mr Williams' continuing detention after that date will be a matter for the trial judge.

50 It was for these reasons that I joined in the orders of the Court allowing the appeal; quashing the decision of the trial judge; remitting the matter to the trial judge for further hearing and determination in accordance with these reasons; and directing that Mr Williams be detained in custody until 25 September 2007, when the matter is to be further mentioned before the trial judge.

51 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of the Chief Justice. His Honour has explained sufficiently for my purposes the reasoning of McKechnie J and the background to the appeal, and I do not repeat those matters. I agree with his Honour's conclusion that the appeal should be allowed, announced at the hearing of this matter, for the reasons which follow.

52 There are two issues raised by the grounds of appeal. Ground 1 is concerned with the question of whether the word "may", where it appears in s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), imports a general discretion either to make one of the two forms of order specified or to decline to make any order, or whether it is to be construed

as meaning "must" so that the Court must make an order and is at liberty only to choose between the two types of order specified. The second issue is concerned with the question of the onus borne by the DPP, and whether there is an onus only to demonstrate that the offender is a serious danger to the community, or whether it is also necessary for the DPP to demonstrate that the order which he seeks (pursuant to s 8) is the appropriate one.

53 In Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140, Gleeson CJ and McHugh J discussed the approach taken to the construction of a word such as "may", where an issue arises as to whether it is permissive only or whether it imposes an obligation. Their Honours said:

When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation [32]. (footnote omitted)

54 I do not understand anything in the quoted paragraph to be contentious in this case. It reflects longstanding principles of construction. Although this was, as I understood it, the approach which the appellant accepted was appropriate, there was very little in the appellant's submissions which related to the context of the relevant provision or to its language, although the language is replete with difficulty and is, in many respects, ambiguous.

55 Although I am conscious of the undesirability of grappling with some of the difficulties without the assistance of counsel, it is my view that it is necessary for me to attempt to answer a number of the questions which shed light upon the role which Parliament intended a judge applying s 17 to play.

56 Section 17 provides as follows:

(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.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

57 The submissions of the DPP may be summarised, I hope not unfairly, as asserting that because of the requirement in s 17(2) that protection of the community is the "paramount" consideration, it necessarily follows that a judge would have no discretion, once he or she had found that an offender was a serious danger to the community, save for the discretion of deciding which was the appropriate form of order. There are a number of things which should be noted about the submission. One is that, as it was developed, it tended at times to suggest that "paramount" should be read as if it meant "only". That is not the legislative language. It is clear that even where one consideration is "paramount", it may also be necessary to have regard, and to give weight, to others: see Storie v Storie [1945] HCA 56; (1945) 80 CLR 597 at 611 per Dixon J; AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 at [95] per Gaudron J, [144] per Kirby J. Allied to that observation, is the observation that s 17(2) refers to a need to ensure "adequate" protection of the community. That is not the same thing as guaranteeing the protection of the community from all types of offending in all circumstances; what is "adequate" is a matter for judgment in each case.

58 The submission which relied so heavily on s 17(2) also suffered from the underlying assumption that only by making an order which either detained or severely restricted an offender who might be at risk of further offending, even where the offender's sentence was completed, could the protection of the community be assured. Even if one were to adopt a severely practical view of the protection of the community, and were to disregard entirely those principles which are concerned with the liberty of every individual, those practical considerations do not all point one way. There are ways in which the protection of the community may be impaired, rather than enhanced, by a construction which would promote the making of orders in relation to significant numbers of offenders who have already served their term of imprisonment. Orders of that kind do not, for example, protect those who are erroneously considered to be a serious danger, and who as a result may be detained for considerable periods when, if released, they would not have offended further. They do not enhance the protection of those who work in prisons, since the management of prisoners is generally less difficult when they have some reasonable certainty about their likely release and about the behaviour which may secure that release. Most importantly perhaps, given the apparent legislative purpose, is the consideration reflected in the old saying that a person "might as well be hung for a sheep as for a lamb". If there were to be a widespread expectation that sexual offending would ordinarily, or even very often, result in an order for indefinite detention, then a rational sexual offender might be more likely to resort to extreme intimidation or violence so as to lessen the probability of being detected or convicted in the first instance (see, eg Thomson v The Queen (Unreported, WASCA, Library No 6502, 31 October 1986) 3 (Brinsden J)).

59 However, the central difficulty with reliance principally on s 17(2) is that the subsection is plainly intended only to prescribe a principle to which the court must refer in the exercise of its discretion. The question, however, is what is the nature of that discretion. An important question in considering that issue is the question of what it means to find that an offender is a "serious danger to the community".

60 Section 3 of the Act defines "serious danger to the community" as having the meaning given to that term in s 7. Section 7 does not, on its face, give a meaning to the term. Rather, s 7 is concerned with what is in form a precondition to the making of a finding that a person is a serious danger. It relevantly provides:

(1) Before the court dealing with an application under this 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.

61 A "serious sexual offence" is itself a defined term. It has the meaning given to that term in the Evidence Act 1906 (WA) s 106A. In broad terms, that is a reference to a variety of sexual offences which are punishable by a term of 7 years' imprisonment or more. By and large, the offences are offences of a kind that would be regarded as "serious" both in lay terms and as a matter of statutory definition. It is possible, however, to imagine offences which fall within the statutory definition, but which not all members of the community would necessarily regard as being serious sexual offences in ordinary parlance. For example, a youth of 17 who engages in any sexual conduct with his 15‑year‑old girlfriend, which may fall well short of sexual intercourse, with her consent or even at her request, would, assuming he knows her age, be committing a serious sexual offence as defined (eg Criminal Code (WA) s 321(2), (4)). Of course, one would not expect such an offence to attract a term of imprisonment, so as to trigger the operation of s 8 of the Act. The example merely illustrates the point that not all "serious" sexual offences will be "serious" in the ordinary meaning of the term. Leaving aside the anomalous or unusual case however, by and large a "serious sexual offence" is serious both as a matter of statutory definition and in the sense of being an offence which ordinary members of the community would regard as amongst the most grave types of offending.

62 In those circumstances, as Murray J observed in The State of Western Australia v Latimer [2006] WASC 235 at [13], it is difficult to imagine what would constitute an "acceptable risk" that a person would commit such an offence. It was that difficulty which led his Honour to the view that a risk would be unacceptable if it was a real risk rather than merely a remote possibility. That view is certainly open, but it appears to me that "unacceptable risk" is intended to mean more than merely a risk which is not a remote one.

63 In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

64 There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression "unacceptable risk". The first is that s 7(1) expressly refers to the risk as a risk which exists "if the person were not subject to [either] a continuing detention order or a supervision order". That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and "to a high degree of probability". An onus expressed in that way suggests a task of substantially greater difficulty than that of simply ascertaining whether there is a risk which is real and not remote. Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from "that risk" (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to "any other relevant matter".

65 Finally, it is to be noted that many of the provisions of the Act are similar to, although not identical with, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13(2) of that Act referred to "an unacceptable risk that the prisoner will commit a serious sexual offence". It was argued in Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575 that such a test was devoid of practical content. In rejecting that contention, Gleeson CJ at [22] and Callinan and Heydon JJ at [225] referred to the decision of the High Court in M v M (1988) 166 CLR 69, a case which dealt, as Gleeson CJ summarised it in Fardon, with "the magnitude of a risk that will justify a court in denying a parent access to a child". That is, those members of the High Court who referred directly to the question considered that the legislature had adopted a criterion and a standard appropriate to the balancing of competing considerations. Fardon was decided prior to the enactment of the Act, and it would be expected that Parliament in Western Australia would be aware of the meaning given to that expression in the reasons in Fardon. An examination of Hansard confirms that Parliament was aware of that case: eg Parliamentary Debates, Legislative Assembly, 15 November 2005, 7272 ‑ 3. I would mention that, for the reasons given by the Chief Justice, Fardon's case does not resolve the meaning of "may" in s 17.

66 There is a question as to whether a "serious danger to the community" is a finding which is automatically to be made once the court determines that there is an unacceptable risk of the kind to which s 7(1) refers, or whether there is some additional finding which must be made. Normally, where Parliament uses two different expressions, one would expect two different meanings to be intended. However, if, as in my view it does, s 7(1) in referring to an "unacceptable risk" is referring to a risk which is unacceptable having regard to the serious consequences of making such a finding, then it is difficult to imagine what further matters the court would need to consider in determining whether the person was a serious danger to the community. In the context of this Act, it seems to me more likely that in using the different, and even less precise, expression "serious danger to the community", Parliament was merely intending to emphasise the very serious nature of the finding with which the court was concerned. In my view, once the court has found an unacceptable risk in the sense that I have described, the finding of serious danger to the community inevitably follows.

67 It is important to understand what it means for the court to find an offender a serious danger to the community, because that is the finding which triggers the exercise of the power (or discretion) in s 17(1). If, for example, a finding that an offender is a serious danger to the community required no more than a finding that there is a real and not remote possibility or risk that the offender will commit an offence falling within the definition of serious sexual offence, then it seems unlikely that Parliament would have intended that the court should have no discretion to refrain from making an order. As I have pointed out earlier, not all offences defined as a "serious sexual offence" will involve a serious threat to the community. Even in relation to offenders who pose a real and not remote risk of offending in a serious way, it seems to me unlikely that Parliament would have intended the court have no regard at all to the exceptional nature of a power to deal with a person not for an offence which they have committed, but for an offence which they may commit. If a finding of a real and not remote risk of committing an offence of the defined kind was all that was required for a finding that a person was a serious danger to the community, I would favour the view expressed by the Chief Justice at [40] of his reasons.

68 However, on the view that I take of the considerations to which the court must have regard in determining whether to find that a person is a serious danger to the community, the court has already, in arriving at that view, balanced all relevant considerations including the potential consequence of such a finding for the offender. If that is the correct view of the way in which the court should approach the making of such a finding, then there will be no further relevant considerations which the court can have regard to in deciding whether to make, or decline to make, an order. Rather, the only question which would remain is that of what would be the appropriate form of order. In that case, as it appears to me that there would be nothing upon which a discretion could sensibly operate, it is my view that the legislature intended that "may" was to be understood as "must".

69 The view that s 17(1) does not confer upon the court a discretion to decline to make an order is supported by reasoning in two cases in this court, one of which was referred to by the appellant and the other of which was not. In Director General of Community Services v McCann (Unreported, WASC, Library No 6234, 3 April 1986), Pidgeon J dealt with the question of whether, having declared a child in need of care and protection pursuant to s 30(1) of the Child Welfare Act 1947 (WA), the court had a discretion to make no order in respect of the child. His Honour considered that if the court had a discretion to make no further order, then the declaration that the child was in need of care and protection would have been pointless, and that it would be inconsistent with the policy of the Act to make an order that the child was in need of care and protection and to do nothing further. Similarly, in the case of the present Act, it would appear to me both pointless and inconsistent with the policy of the Act to determine that a person was a serious danger to the community, but to make no order to reduce or eliminate that danger.

70 In Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122, the Court of Appeal considered s 31 of the Surveillance Devices Act 1998 (WA). It relevantly provided that a judge "may" make an order that a person may publish or communicate a private conversation which had come to the person's knowledge as a result of the use of a listening device or optical surveillance device if the judge was satisfied that "the publication or communication should be made to protect or further the public interest". At first instance Le Miere J had determined that publication or communication would protect or further the public interest, but had declined to make an order permitting the publication, having regard to, inter alia, the desire for privacy of one of the persons recorded and the fact that the recording disclosed no unlawful or improper conduct.

71 The Court of Appeal considered that the requirement that the judge be satisfied that the publication should be made to protect or further the public interest was inconsistent with a statutory intention to grant a separate or additional discretion which would entitle a judge to refuse to order publication, once so satisfied (at [22]), per McLure JA. However, in re‑exercising the discretion, the court had regard to some matters which overlapped with the considerations taken into account by Le Miere J (at [39] and [40]). In effect, it appears that the court considered that the primary judge had erred, having determined that publication would further or protect the public interest, in considering that it was necessary to balance that finding against other relevant factors. That, it appears, was because the court considered that all relevant factors - both those weighing in favour of publication and those weighing against - were, provided that they related to the public interest, to be considered at the anterior stage of determining whether publication would further or protect the public interest. Once that determination had been made, there would be no additional factors properly to be taken into account in the exercise of a discretion. So in the present case, if all relevant factors are to be taken into account in determining whether or not the court should find that a person is a serious danger to the community, then there is no room for the exercise of a further discretion, once that determination has been made.

72 It follows that in my view the learned primary judge was in error in the present case in considering that, having determined that the respondent was a serious danger to the community, there was a discretion as to whether his Honour might make neither of the orders provided for by s 17. It is not entirely clear to me from his Honour's reasons whether he considered, as Murray J had considered in Latimer, that no more was required, in order to make a finding of unacceptable risk, and therefore of serious danger, than a determination that there was a real risk that the respondent would commit a serious sexual offence. There was no cross‑appeal, and there was no challenge to his Honour's finding in this respect. However, since the matter is to be remitted to his Honour to be dealt with afresh, it would be desirable if that matter were to be expressly addressed in submissions before him.

73 As I understand it, the appellant's submissions in respect of ground 2 were to the effect that once the court is satisfied that an offender is a serious danger to the community, the DPP has no further task to perform. He is not required to prove that any particular order should be made, or that a detention order is the only order that will satisfy the paramount consideration of the protection of the community.

74 There are certainly some difficulties in the structure of the Act, so far as the role of the DPP is concerned. As counsel pointed out to us, if at a preliminary hearing the court is satisfied there are reasonable grounds for believing that the court might find the offender is a serious danger to the community, then the court is to order that the offender undergo examination by two psychiatrists named by the court for the purposes of preparing reports required by s 37 (s 14). It is the court's order which is authority, pursuant to s 15 and s 32, for the psychiatrists to examine the offender and to report, even if the offender does not wish to cooperate. The chief executive officer, and not the DPP, arranges for the person to be examined by the two psychiatrists (s 32). The content of the reports is prescribed by s 37, and not by either the order of the court (save for possible directions pursuant to s 43) or by a request from the DPP. It is suggested, therefore, that Parliament can not have intended the DPP to bear an onus in circumstances where the DPP has no way of controlling how and by whom the person is examined for the purpose of determining what risk that person may present.

75 However, the parliamentary intention appears to be that the DPP is required to indicate the form of order which he considers to be appropriate, and to adduce evidence and make submissions about that form of order. That is suggestive of an onus resting upon the DPP to demonstrate what order should be made. Section 8 provides that it is the DPP's application which commences the proceeding which may result in an order being made pursuant to s 17. Section 8(4) provides that the application "must" state the orders sought, and be accompanied by any affidavits to be relied upon by the DPP.

76 It is plain that the court may rely upon matters in addition to the s 37 psychiatric reports in arriving at a view that a person is a serious danger to the community. Some of those matters are referred to expressly in s 7(3). They include the person's past pattern of offending behaviour, if any, the person's antecedents and criminal record, other assessments relating to the person and any other relevant matters. Many of those materials will be materials to which the DPP has access by reason of the past criminal proceedings. Those materials will be relevant not only to determining whether a person is a serious danger to the community, but also to determining what orders may appropriately be made in order to reduce the risk which the person poses.

77 Further, the chief executive officer is required to give to the DPP a copy of anything which the chief executive officer gives to a psychiatrist for the purpose of preparing the reports required by s 37. In turn, persons in possession of medical, psychiatric, prison or other relevant reports or information relating to the person to be examined must give them to the chief executive officer if asked by the chief executive officer to do so (s 38(3)). It is apparent that the DPP will be able to obtain a considerable body of information relevant to the making of any appropriate orders.

78 In addition, as occurred in the present case, it is clear that in practical terms the DPP will be able to adduce evidence from persons with experience in relevant corrective services and community treatment programmes and from the police service, concerning treatment programmes which are or might be made available in the community, counselling services, mentoring services, surveillance devices (such as those used in relation to home detention bail) or other reporting and supervision mechanisms, technological or otherwise. An offender will not have access to information of that kind.

79 In oral argument before us, counsel for the appellant recognised that Parliament must have intended that the DPP would bear the responsibility for providing the court with relevant evidence concerning what forms of supervision might be available, so as to enable the court to make a choice between the making of a supervision order and the making of a detention order. It was conceded that it would not be open to the DPP simply to adduce no evidence in relation to any possible supervision mechanisms and then to rely upon that lack of evidence to found a submission that supervision had not been shown to be capable of protecting the community. Further, it was accepted before us that the least restrictive alternative compatible with the protection of the public, would be the order which it would be appropriate to make. However, it was submitted that his Honour was in error in the present case because, having found that "the evidence falls well short of establishing what order should be made ... to ensure the protection of the community", he dismissed the application (at [66] ‑ [67]). It was submitted that in those circumstances what he should have done was to have made a detention order, that being the only order which was capable of ensuring the protection of the community.

80 I accept that his Honour was in error in dismissing the application without making any order at all. However, the difficulty which his Honour faced was more complex than is suggested by the appellant's submissions. Summarised broadly, it appears to me that his Honour was satisfied that there was some evidence before him which suggested that a supervision order of some kind might possibly be adequate to ensure the protection of the community. However, no work had been done to assess the respondent's suitability for any particular programme, or to formulate any particular conditions which might be appropriate. It is plain that work of that kind can be done. In the case of The State of Western Australia v AA [2006] WASC 279, Murray J referred at [34] ‑ [35] to a detailed set of conditions which had been proposed, including provision of a case worker to co‑ordinate that offender's programme with relevant agencies, a paid mentor, psychiatric management and treatment, antilibidinal medication and substance abuse counselling and urinalysis. By contrast, before McKechnie J, there was simply a range of possibilities raised with an indication that there were funding difficulties of some kind, and no indication of how appropriate programmes might be made available to, and what conditions should be imposed upon, the respondent.

81 There are a number of issues raised by the situation in which his Honour found himself. One, which was touched upon during the course of argument before us, was the question of funding difficulties. In my view, they were not matters with which his Honour had to be concerned. The Act provides in s 4 that its objects are, inter alia, to provide for continuing "control, care, or treatment" of persons of a particular class. If those persons require control, care or treatment in order to protect the community, the court can assume that, if an order is made, the executive will perform its function of protecting the community by the provision of appropriate assessment and resources. There is an analogy with the making of orders such as intensive supervision orders to which offenders may be sentenced. Those orders may require offenders to undergo certain forms of assessment or programmes. Since Parliament has made provision for them, the court must assume they will be available. These observations of course apply only to the provision of services which can be provided in one way or another by the executive. There is nothing in the Act to suggest that the Parliament intended to impose obligations on members of the public at large, and McKechnie J was correct in rejecting that possibility (at [60] of his Honour's reasons).

82 Another issue raised by the difficulties faced by his Honour in this case, is the question of inadequacy of information or the offender's failure to cooperate. There are a number of assumptions in the Act about the course of these hearings, but events will not necessarily unfold as Parliament has assumed. It is, for example, assumed that the court will have sufficiently detailed information about the offender to enable it to make an assessment of the likelihood of the offender's reoffending. However, as Parliament recognised in s 37(4), not all offenders will wish to cooperate by providing relevant information about themselves. Some may not be able to do so, as a result of mental incapacity, or language difficulties. Where that is the case, it would, in my view, be open to the court to consider whether the inadequacy of information stems from a desire on the part of the offender not to cooperate with authorities and, if that is the case, to draw from that lack of cooperation an adverse inference about the progress of the offender's rehabilitation. If, however, the information is inadequate for other reasons, the onus in s 7(2) will not be satisfied.

83 Similarly, it may be, on occasion, that the court forms the view that the responsible authorities have simply not troubled adequately to consider what conditions might be imposed, as part of the terms of the supervision order, in order to protect the public. The court may, in some circumstances, infer that this is because the relevant authorities are confident that they can, with more or less difficulty, put in place adequate supervisory measures if required to do so. It might in such a case be appropriate for the court simply to make a supervision order containing the standard terms required by s 18(1) and to impose an additional term along the lines of a requirement that the offender comply with the directions of the community corrections officer with respect to specified matters, such as psychiatric treatment or substance abuse treatment or urinalysis or the like, leaving those directions to be made after appropriate assessment.

84 However, it may also be the case that the inadequacy of information before the court stems from other causes. For example, it appears before McKechnie J that the psychiatrists who reported pursuant to s 37 did not see it as their role to attempt to suggest what the terms of any supervision order might be, while other witnesses called by the DPP took the view that it was more appropriate for them to respond to concrete proposals made by the respondent or by others, rather than themselves suggesting appropriate programmes or conditions.

85 It is not clear, in the present case, why counsel for the DPP before McKechnie J did not seek to have the proceedings adjourned, so that further evidence could be adduced, when the inadequacy of the material before his Honour became apparent. However, even in the absence of an application for adjournment, where the court forms the view that the DPP has established that the person is a serious danger to the community, but that the evidence before the court is inadequate to enable an appropriate choice of order to be made, then in my view it would be appropriate for the court to indicate that preliminary view, and to direct, pursuant to s 43, that within a specified period the DPP adduce evidence addressing the deficiency identified, and of course affording to the offender an opportunity to adduce evidence in relation to the same matter.

86 In the present case, therefore, it is my view that when, either during or at the conclusion of the hearing before him, McKechnie J reached a provisional view that the evidence he had was inadequate for him to determine which of the orders pursuant to s 17 was appropriate, he should have communicated that provisional view to the parties, and given appropriate directions for the calling of further evidence. Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be

imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.

87 Finally, in case it may be of assistance in future cases, I mention one matter which has emerged during the course of argument before us in relation to the content of the psychiatric reports prepared pursuant to s 37. Section 37(2) provides that the report has to indicate the psychiatrist's assessment of the level of 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", together with the reasons for that assessment. It appears that in the present case it was assumed by the psychiatrists that their task was to determine risk in the abstract. By that, I mean that they appear to have proceeded on the basis that their task was to determine the level of risk that would be posed if the respondent were subject to no order of any kind.

88 It is unlikely that examining psychiatrists would be familiar with all of the detail of the possible programmes which might be available or all of the supervision mechanisms which might be put in place, pursuant to a supervision order. However, given the status of the s 37 psychiatrists as independent court appointed experts, it would obviously be desirable to have some comment from them in relation to this issue. It may be, in future, that at the preliminary hearing pursuant to s 14 both the offender and the DPP might make submissions as to what directions the court might appropriately make, pursuant to s 43, about the information to be provided to the psychiatrists, and about the structure of the s 37 reports. 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 find that the offender is a serious danger to the community. However, a subsidiary purpose must be to ensure that appropriate directions are given to enable the final hearing, if there is to be one, to take place as expeditiously as possible and to ensure that all relevant material is placed before the judge who ultimately makes the determination pursuant to s 17.

Sexual Offenders Act 2006

Protection (Offender Reporting) Act 2004

Prisoners (Sexual Offenders) Act 2003

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