ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA [2026] SASC 43

Applicant: ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MS C NOLAN - Solicitor: CROWN SOLICITOR (SA) Respondent: DO In Person via AVL Hearing Date/s: 02/04/2026 File No/s: SCCRM-25-049734, SCCRM-25-049736 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL (SA) v DO (No 2) [2026] SASC 43 Reasons for Decision of the Honourable Justice B Doyle (ex tempore) 2 April 2026 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - BASIS OF OPINION The respondent is a high risk offender within the meaning of s 5 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’) and a person to whom s 57 of the Sentencing Act 2017 (SA) applies. On 2 February 2026, an interim detention order was made in respect of the respondent under s 57(5) of the Sentencing Act. Any application for an interim supervision order was stood over. The parties requested the opportunity to make submissions before the Court made directions under s 57(6) of the Sentencing Act and s 7(3)(a) of the HRO Act. The applicant filed submissions inviting the Court to determine a number of issues relating to the standard against which medical practitioners or the Court may make findings and, in particular, with respect to as yet unproven allegations of criminal conduct. Held, declining to make determinations on the various issues identified and making directions pursuant to s 57(6) of the Sentencing Act and s 7(3)(c) of the HRO Act: 1. the fact of the unproven allegations may be relevant to the inquiry or examination to be undertaken by the practitioners whether or not the allegations are or will be ultimately established. It is inappropriate to direct that the practitioners not be informed of the allegations; 2. it is inappropriate at this juncture to make determinations about issues that may or may not ultimately arise in relation to the status of unproven allegations at the ultimate hearing of the applications for indefinite detention or extended supervision orders. -- 1 of 7 -- Criminal Law Consolidation Act 1935 (SA) pt 8A; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 18(2); Sentencing Act 2017 (SA) s 57, referred to. Attorney-General (SA) v Anderson [2026] SASC 29; Attorney-General (SA) v DO [2026] SASC 10; Attorney-General (SA) v Gogel [2025] SASC 193; Attorney-General (SA) v Rowe [2025] SASC 189; Attorney-General (SA) v Thomas [2026] SASC 4; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; Briginshaw v Briginshaw (1938) 60 CLR 336; Driver v Attorney-General (SA) (2022) 140 SASR 282; GM v Department of Human Services [2025] SASCA 68; Pearce v Federal Commissioner of Taxation (1978) 20 ALR 354; Rapson v WorkCover Corporation (2007) 98 SASR 86, discussed. -- 2 of 7 -- ATTORNEY-GENERAL (SA) v DO (No 2) [2026] SASC 43 Criminal 1 B DOYLE J (ex tempore): On 2 February 2026, the Court made an interim detention order in respect of the respondent pursuant to s 57(5) of the Sentencing Act 2017 (SA), but stood over any application for an interim supervision order under the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).1 2 In the ordinary course, directions would have been made on that occasion: • pursuant to s 57(6) of the Sentencing Act, that at least two legally qualified medical practitioners (to be nominated by a prescribed authority) inquire into the mental condition of the respondent and report to the Court on whether he is incapable of controlling, or unwilling to control, his sexual instincts; and • pursuant to s 7(3)(a) of the HRO Act, that one or more prescribed health professionals examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious sexual offence. 3 The parties requested that I defer making those directions because they wished to make submissions about whether the practitioners undertaking the relevant inquiry or examination and preparing the required reports should be provided with material relating to unproven allegations of criminal conduct by the respondent. 4 Neither party filed an interlocutory application, but written submissions were provided first by the applicant and subsequently by the respondent’s then legal representative. 5 The applicant by its submissions invited a determination of the following issues: (1) the standard to be applied to the evidence that may be relied upon by the practitioners in preparing reports under s 57(6) of the Sentencing Act and s 7(3) of the HRO Act; (2) the standard to be applied to the evidence that may be relied upon by the Court in making a finding of ‘unwillingness’ under s 57 of the Sentencing Act or ‘appreciable risk’ for the purposes of s 7 of the HRO Act; and 1 The circumstances of the respondent’s index offending and the basis upon which the applications for an indefinite detention order and an extended supervision order are pursued are summarised in the reasons for judgment given on that occasion: Attorney-General (SA) v DO [2026] SASC 10 at [1], [22]-[34]. -- 3 of 7 -- [2026] SASC 43 B Doyle J 2 (3) the standard to be applied to a determination of ‘unwillingness’ under s 57 of the Sentencing Act and ‘appreciable risk’ for the purposes of s 7 of the HRO Act. 6 After the provision of the respondent's written submissions, the respondent decided to represent himself. The matter was adjourned, to give the respondent an opportunity to consider his position and prepare any submissions on those issues. The respondent has provided to the Court a handwritten letter broadly objecting to the Court acting on unproven allegations as well as two letters of support; one from a Suzanne Joy Florance, and the other from Captain Alex Jimenez. 7 In the course of submissions this morning, the respondent raised a number of matters with the Court. They included his concerns about the circumstances in which he pleaded guilty to prior offending, including pressure that he contends was placed on him in that regard; secondly, his concerns about my earlier decision to impose an interim detention order, which is now the subject of an appeal; and thirdly, submissions to the effect that his extensive work history, supported by the comments of the two referees, demonstrates that he is not incapable of controlling his sexual instincts. He also submitted that he has been, generally speaking, compliant with previous reporting obligations and that there were extenuating circumstances relating to his return of a positive test on a urine sample. 8 Some of those matters do not directly relate to any of the issues that I might be called upon to decide at this juncture of the proceedings, but it was apparent that the respondent maintains his objection to either the practitioners or the Court acting on unproven allegations. 9 Returning to the three issues arising from the applicant's submissions, summarised by me a moment ago, there is in no real controversy that a finding on what is a critical issue under s 57 of the Sentencing Act (namely, that the respondent is incapable of controlling, or unwilling to control, their sexual instincts) must be made on the balance of probabilities, approached consistently with the principles explained in Briginshaw v Briginshaw.2 10 Likewise, and for reasons which mirror those that I gave in the context of s 18(2)(a) of the HRO Act in Attorney-General (SA) v Thomas,3 an assessment under s 7(4) of the HRO Act that a respondent poses an ‘appreciable risk’ to the safety of the community if not supervised must be made on the balance of probabilities. 11 Turning back to the second group of issues, as I raised with the parties during an earlier hearing of this matter, a question arises as to whether they can properly be resolved at this stage. The inappropriateness of courts addressing questions which are hypothetical has been consistently emphasised in the High Court and in 2 Driver v Attorney-General (SA) (2022) 140 SASR 282 at [45], [49]. 3 [2026] SASC 4 at [43]. -- 4 of 7 -- [2026] SASC 43 B Doyle J 3 this Court.4 A court should not give an advisory opinion, nor embark on a mere judicial exegesis of a statutory provision where the circumstances for application of the provision have not crystallised.5 12 In Attorney-General (SA) v Rowe,6 the respondent made application that identified material relating to particular unproved allegations not be provided to the practitioners carrying out statutory tasks under Part 8A of the Criminal Law Consolidation Act 1935 (SA). I expressed the conclusion that:7 The legislative scheme is that the Court should not make a decision about whether a continuing supervision order should be made unless it has been provided with a report of the kind contemplated by s 269UA(4). In contrast to the position that may obtain in an ordinary inter partes dispute, the Court is not disinterested or uninterested in the report being provided in a way that is consistent with the legislative scheme; if such a report is not furnished the Court’s statutory task and duty may be frustrated. Indeed, it is the Court itself that directs the preparation of the report. Whether it arises as an incident of the powers and functions conferred on the Court by Part 8A, or by operation of the UCRs as ‘picked up’ by the USSRs, or simply by the exercise of the Court’s inherent power to control its own procedures, I conclude that the Court must have power, in an appropriate case, to superintend the process it has directed, with a view to averting a likely frustration of the Court’s statutory duty and task. Whether it should do so in a particular case is a more difficult question. The considerations that may bear on that question are numerous. 13 I proceeded on the same basis in respect of a similar application in Attorney- General (SA) v Gogel,8 in the context of s 7 of the HRO Act. 14 Save for a qualification to which I will come, the reasoning that I adopted in those cases also suffices to conclude here that the Court should not direct that material relating to unproven allegations be withheld from the practitioners in this case. That is because the fact of the unproved allegations might legitimately bear on opinions expressed by the practitioners even if it is the case that, at a final hearing, there is some objection to the applicant seeking to prove, or even adduce evidence in respect of, the underlying allegations, with a view to inviting the Court to find that the allegations occurred or that they so likely occurred that the Court should make a finding of ‘unwillingness’ or ‘appreciable risk’. 15 The qualification to that concerns any allegations about which, by reference to their inherent nature, the unsatisfactory nature of any evidence presently available (or which might reasonably be obtained), or their status (including but not limited to a case where a charge is pending: 4 See, eg, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [47]-[49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), Rapson v WorkCover Corporation (2007) 98 SASR 86 at [11]-[17] (White J, Duggan and Kelly JJ agreeing). 5 cf. Pearce v Federal Commissioner of Taxation (1978) 20 ALR 354 at 357 (Brennan J). 6 [2025] SASC 189. 7 [2025] SASC 189 at [51]-[52]. 8 [2025] SASC 193 at [16]. -- 5 of 7 -- [2026] SASC 43 B Doyle J 4 • it can be confidently predicted that the allegations will have no probative or explanatory value and will not assist the practitioner in forming his or her views or the court in making its determinations;9 or • where it would be manifestly unfair to inquire into, or place the respondent in the position of having to respond to, the allegations for some particular reason.10 16 In such a case, nothing would be served by inviting the practitioner to have regard to the allegation and, whilst the risk of prejudice being caused by its inclusion might be modest, it may be appropriate, exercising the Court’s power to superintend the process, to direct that the material be excluded. 17 Absent those or similar circumstances, the preferable course is to alert the practitioner to the circumstance that the allegation has not been proved so that, first, the practitioner will exercise care in any questioning of the respondent about the circumstances and, secondly, so that if the allegation becomes material to any opinion they express, it is made clear whether they have assumed the allegation to be fact or have relied upon the allegation without making any such assumption. As I said in Rowe, the admissibility or weight of the opinion will fall to be considered at the ultimate hearing and in light of all the evidence adduced.11 18 Whilst in the course of argument I expressed concern about the practitioners being provided with material relating to one of the categories of unproven allegations on the basis of redactions appearing in that document, I have ultimately decided that I should not direct that that material be withheld from the practitioners in circumstances where, first, the applicant indicated that it was at least possible that that material would be supplemented in due course and where, secondly, the respondent indicated that he is aware of the identity of the person whose name is redacted in the document. 19 The second group of issues posed by the applicant’s submissions invited me to look ahead to the final hearing and make a determination as to whether it is necessary to establish intermediate facts (including presently unproven allegations) according to a particular identified standard, or whether what I described in Rowe12 as the ‘flexible approach’ discussed by the Court of Appeal in GM v Department of Human Services13 may be appropriate. 20 Implicit in that submission is that it will be open to the applicant to endeavour to establish or rely upon unproven allegations at all. Authority supports that 9 cf. Attorney-General (SA) v Anderson [2026] SASC 29 at [36]. 10 cf. Attorney-General (SA) v Rowe [2025] SASC 189 at [117]-[119], Attorney-General (SA) v Gogel [2025] SASC 193 at [19]. 11 [2025] SASC 189 at [116]. 12 [2025] SASC 189 at [113]. 13 [2025] SASCA 68. -- 6 of 7 -- [2026] SASC 43 B Doyle J 5 proposition in relation to the s 57 application.14 I have tentatively expressed the opinion that the same is true in the context of the HRO Act application in Gogel.15 But for the same reason I did not decide it there, I do not think I should now and the applicant's counsel ultimately did not press for a determination of that question. 21 The further question whether such allegations have to be proven according to a particular standard may or may not arise at the ultimate hearing of the applications for an indefinite detention order or an extended supervision order. The Court might be satisfied that dispositive findings can be made without considering whether any unproven allegations are established. The Court might be satisfied that even if the allegations are established, the relief should not be granted. The Court may or may not need to determine whether the unproven allegations should be acted on without being proved on the balance of probabilities approached in accordance with Briginshaw v Briginshaw because it might be concluded that the allegations are proved, or conversely it might be established that they are unfounded. There may be no occasion to consider whether the ‘flexible approach’ is available in the context of either regime. 22 Those issues are not yet ripe for determination and, even if they were, fragmentation and other possible complications might be caused by deciding them now. 23 I would also decline to make any determination in respect of the first group of issues. Their framing presupposes that the Court will be called upon distinctly to assess the validity of the approach taken by a practitioner when that may or may not be necessary or appropriate at a final hearing. The practitioner may proceed on the basis of assumptions rather than findings. The practitioner’s opinion may be unpersuasive for reasons unconnected with any standard of proof they have explicitly or implicitly adopted with respect to underlying unproven allegations. 24 The fact that the respondent is presently (by his choice) self-represented is an additional reason for caution and conservatism in relation to the extent of any determination that may be made at this juncture. 25 In the end, the appropriate course is simply to make directions that the statutory inquiries or examinations and reports be prepared in the usual way, with an indication that whilst the applicant is not precluded from providing material relating to unproven allegations to the practitioners in question, they should be invited to note carefully that those allegations are presently unproven and invited to indicate whether and if so how they have relied upon the allegations in forming any opinions they ultimately express. 14 See, eg, Driver v Attorney-General (SA) (2022) 140 SASR 282 and Attorney-General (SA) v Anderson [2026] SASC 29 at [35]. 15 Gogel [2025] SASC 193 at [19]. -- 7 of 7 --