Later, in the Second Reading Speech, the Minister said (at 21803):
"[The Supreme Court] may only make a continuing detention order if it is satisfied, to a high degree of probability, that the offender is likely to commit a further serious sex offence if he or she is not kept in custody."
57 Section 3 of the Act provides:
" Objects of Act
The objects of this Act are to provide for the extended supervision and continuing detention of serious sex offenders so as:
(a) to ensure the safety and protection of the community, and
(b) to facilitate the rehabilitation of serious sex offenders."
58 It is common ground that the claimant has committed a serious sex offence as defined by the Crimes (Serious Sex Offenders) Act and is a serious sex offender within the meaning of the Act.
59 As Bell J observed (at [10]):
"The Act empowers the Court on the application of the Attorney General to make an extended supervision order (for which provision is made in Part 2) or a continuing detention order (for which provision is made in Part 3). Each order operates to extend the period of control over a serious sex offender beyond the term of the sentence of imprisonment imposed in consequence of conviction for his or her sex offence."
60 Section 17 of the Crimes (Serious Sex Offenders) Act provides:
" Determination of application for continuing detention order
(1) The Supreme Court may determine an application for a continuing detention order:
(a) by making an extended supervision order, or
(b) by making a continuing detention order, or
(c) by dismissing the application.
(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.
(3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.
(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:
(a) the safety of the community,
(b) the reports received from the psychiatrists appointed under section 15(4) to conduct psychiatric examinations of the offender, and the level of the offender's participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence,
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs,
(f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,
(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.
(5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9."
61 It follows, by s 17(1), that, in determining an application for a continuing detention order, the Court may make an extended supervision order. The Act sets out a non-exhaustive list of conditions that might be imposed when making a supervision order (s 11). By s 18(1)(b), a continuing detention order expires at the end of the period (not exceeding five years from the day on which it commences) specified in the order. By s 19, the Court may, at any time, vary or revoke a continuing detention order.
62 An important issue before Bell J was the meaning of "likely" in s 17(3). Her Honour recorded (at [18]) the opponent's submission as being that, in this section (and in s 17(2)), "likely" is used in what was said to be its ordinary sense and means "substantial - a real and not remote chance regardless of whether it is more or less than 50 per cent": Boughey v The Queen (1986) 161 CLR 10 at 21 per Mason, Wilson and Deane JJ).
63 Her Honour considered that the element that the opponent had to prove was the likelihood of a further serious sex offence being committed if the claimant was not kept under supervision, and the standard of proof to be applied was encompassed by the word "likely" in the section.
64 Bell J construed "likely" in the relevant context as conveying "the sense that it is probable, as distinct from possible, that the [claimant] will commit a further serious sex offence" (at [29]). She did not say, expressly, whether she construed "likely" as meaning "more probable than not". Her Honour recognised that the effect of the words "high degree of probability", in s 17(3), required the opponent to establish to a high degree of probability that the defendant was "likely" to commit a further serious sex offence if he was not kept under supervision and that adequate supervision would not be provided by an extended supervision order.
65 After carrying out a meticulous examination of the relevant evidentiary material, her Honour said (at [165]):
"Taking into account the expert evidence, particularly the opinions of Dr Allnutt and Professor Greenberg and looking at the inferences to be drawn from the [claimant's] pattern of past offending, upon the standard of proof of high probability, I consider the [opponent] has established that it is likely that the [claimant] will commit a further serious sex offence if he is not kept under supervision."
66 Before this Court, in written submissions made on the claimant's behalf, it was argued that "likely" must be given the meaning, "a high degree of probability". In oral submissions, Mr Haesler SC, who, together with Ms Beckett, appeared for the claimant, submitted that the meaning of "likely" went "beyond more probable than not".
67 It is well established that the word "likely" is capable of different shades of meaning (McClellan CJ at CL, in Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071, gives several examples). Boughey illustrates the point. This case concerned s 157(1) of the Criminal Code Act 1924 (Tas) which provided:
"(1) Culpable homicide is murder if committed -
…
(c) by means of an unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person."
68 Gibbs CJ (at 14) referred to cases where the High Court had treated the words "likely" and "probable" as synonymous. The cases in question concerned the mental element necessary at common law to constitute the crime of murder. His Honour said (at 14) that the word "likely" in s 157 of the Tasmanian statute meant "probable" and not "possible". The Chief Justice observed that this was the "natural meaning" of "likely" and went on to say (at 15) that, in directing a jury as to the meaning of the section, a trial judge should not put a gloss on the ordinary words used. In particular, his Honour said that a judge directing a jury as to the effect of the section should avoid the use of the word "chance", even if qualified by such words as "good", "substantial" or "real". He said (at 15) that "[i]t would however be helpful to the jury to explain that a possibility, as distinct from a probability, is not enough".
69 As we have mentioned, Mason, Wilson and Deane JJ said (at 21) that the word "likely" was used in the section "with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent."
70 Brennan J construed "likely" as "probable" (see at 42 et seq). The equation with "probable", however, may not assist, as "probable" has the same capacity for shades of meaning from more probable than not to a possibility: see Darkan v The Queen (2006) 227 CLR 373 (at 381 to 382, [23] to [27]).
71 Of course, the Crimes (Serious Sex Offenders) Act is a different statute to that construed in Boughey and the context is different.
72 There are other cases where courts have construed the word "likely" in a similar but not the same context as the Crimes (Serious Sex Offenders) Act. Of the cases that fall into this category the most relevant is TSL v Secretary to the Department of Justice (2006) 14 VR 109. Section 11(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic) ("the Monitoring Act") provides:
"A Court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order." [emphasis added]
73 The scheme of the Monitoring Act differs from the Crimes (Serious Sex Offenders) Act. Moreover, in TSL, the Victorian Court of Appeal appears to have had some regard to the Charter of Human Rights and Responsibilities Act 2006 (Vic), noting (at footnote 15, p 113) that, while the Charter was not yet in force, "the nature of our society is a legitimate factor to take into account in construing the legislation". Nevertheless, the Monitoring Act is sufficiently close to the Crimes (Serious Sex Offenders) Act as to require this Court to follow TSL unless it is satisfied that TSL is clearly wrong.
74 Callaway AP (with whom Buchanan JA and Coldrey AJA agreed) said (at 112, [9]):
"Because it was concerned with the future, Parliament could not require the court to be satisfied that the offender will commit a relevant offence. All that the Court could be satisfied of is that the offender is likely to do so or that there is a risk that the offender will do so."
75 Callaway AP said (at 113, [9] and [10]) that construing "likely" as connoting "a high degree of probability" (in the particular context) was the preferred meaning of "likely" in the section. Significantly, however, his Honour went on to say (at 113, [11]):
"I desire to guard against misunderstanding. To say that 'likely' is used in that sense does not mean that the secretary must prove that it is more likely than not that a person will commit a relevant offence. Likelihood, in the ordinary sense of that word identified in Boughey v R , includes a low degree of probability. What the legislature requires the court to be satisfied of is a high degree of probability. There is no reason to think that it must be more than 50%. With experience, it may be possible to be more precise, but we should always return to the words the legislature has chosen and the context in which they appear."
76 Thus, in TSL, the Victorian Court of Appeal construed "likely" to mean "probable" in the sense of "a high degree of probability", but not necessarily involving a degree of probability of more than 50 per cent.
77 In Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340, McClellan CJ at CL made an interim detention order under s 16 of the Crimes (Serious Sex Offenders) Act. In the course of his Honour's decision he commented (at [34]) in relation to s 17(2):
"The word 'likely' presently appears to me to be used in its ordinary meaning which, as the High Court pointed out in Boughey v The Queen (1986) 161 CLR [10 at 21] … conveys the notion of [a] 'substantial - a real and not remote - chance regardless of whether it is less or more than 50 per cent'".