ATTORNEY-GENERAL (SA) v ISAAC ROWE [2025] SASC 189

Applicant: ATTORNEY-GENERAL (SA) Counsel: MR B GRANT - Solicitor: CROWN SOLICITOR (SA) Respondent: ISAAC ROWE Counsel: MR T BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 27/08/2025 File No/s: SCCRM-25-020399 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 ROWE [2025] SASC 189 Reasons for Decision of the Honourable Justice B Doyle 20 November 2025 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - BASIS OF OPINION The respondent is a young man who has been diagnosed with treatment resistant schizophrenia and substance misuse disorder. He has also been assessed as having a mild cognitive impairment secondary to treatment resistant psychotic illness and substance use causing brain injury. The respondent was charged with having committed an aggravated assault on 16 April 2023 (‘index offending’). There was no dispute as to the objective elements of the offending. It was accepted that he was mentally incompetent to commit the offence. On 24 January 2024, a magistrate declared the respondent to be liable to supervision under Division 4 Subdivision 2 of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The magistrate specified terms upon which the respondent was to be supervised on a licence. A limiting term of 18 months was fixed. Under s 269UA of the CLCA, the Crown may seek an order that a defendant who is liable to supervision be subject to a continuing supervision order following the expiry of the limiting term. Where such an application is made, the Court must, before determining an application, make a direction pursuant to s 269UA(4) that one or more legally qualified medical practitioners inquire into the mental condition of the defendant and report to the Court on the mental condition of the defendant including a diagnosis and prognosis of the condition and a suggested treatment plan for managing the condition. Pursuant to s 269UA(7), if the Court is satisfied, on the balance of probabilities, that the defendant to whom the application relates could, if unsupervised, pose a serious risk to the safety of the community or a member of the community, the Court must declare that, on the expiry of the supervision order, the defendant is liable to continuing supervision under Subdivision 3 Division 4 of Part 8A. Prior to the expiry of the respondent’s limiting term, the applicant made application for a continuing supervision order. On 16 June 2025, a judge directed that one or more legally qualified medical -- 1 of 38 -- practitioners inquire into the mental condition of the respondent and report to the court on the mental condition of the respondent including a diagnosis and prognosis of the condition and a suggested treatment plan for managing the respondent’s condition. The Crown Solicitor prepared a letter of instruction enclosing materials for the medical practitioner’s consideration. The respondent objects to some of the material proposed to be provided to the medical practitioner. The respondent, by interlocutory application, seeks an order that any materials relating to allegations of misconduct or offending which amount to unproved allegations be removed from the material intended to be sent by the applicant, arguing that the material is inadmissible and prejudicial. The respondent’s objections fell into the following main categories: 1. material relating to the index offending to the extent it goes beyond what was determined by the magistrate; 2. material relating to other offending that has resulted in a conviction or finding of not guilty by reason of mental incompetence to the extent that it goes beyond what was determined by the judicial officer; 3. material relating to allegations that have been withdrawn; 4. material that relates to breaches found by the Parole Board but which are said to be unproven and/or inadmissible in form; 5. part of the content of a report of an officer of the Department of Correctional Services to the Parole Board. Held, dismissing the application: 1. the Court has power, in an appropriate case, to superintend the process it has directed, with a view to averting a likely frustration of its statutory duty and task; 2. the focus of a report prepared under s 269UA(4) of the CLCA is the mental condition of the defendant including a diagnosis and prognosis of the condition and a suggested treatment plan for managing the condition; 3. material which comprises or discloses allegations of criminal conduct may be relevant to the preparation of such a report in various ways irrespective of the truth of the allegations; 4. when considering the question raised by s 269UA(7), there can be no absolute preclusion upon the Court considering and, if it is in a position to do so, making findings, as to whether a defendant has engaged in conduct that would ordinarily amount to criminal conduct, but for which they have not previously been found guilty; 5. if a medical practitioner expresses an opinion which depends upon the truth of factual allegations, the applicant may need to tender proof of the allegations by admissible evidence at the ultimate hearing. However, there will ordinarily be no difficulty with the medical practitioner being provided with material about the allegations in a form that may not be admissible; 6. there is no sufficient reason in the present case to direct that the medical practitioner not be provided with, or not consider, material in the categories to which objection has been taken. Observations made as to differences between risk assessment required by Subdivision 3 Division 4 of Part 8A of the CLCA and the Criminal Law (High Risk Offenders) Act 2015 (SA), Division 5 Part 3 of the Sentencing Act 2017 (SA) and the Child Safety (Prohibited Persons) Act 2016 (SA). Child Safety (Prohibited Persons) Act 2016 (SA) ss 3, 26; Criminal Law Consolidation Act 1935 (SA) Criminal Law Consolidation Act 1935 (SA) ss 20, 58, 269, 269F.A, s 269UA, 269UB, 269UC, 269NI, pt 8A divs 3A, 4 sub-divs 1-3 ; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 18, -- 2 of 38 -- 21; Criminal Law (Sentencing) Act 1988 (SA); Evidence Act 1929 (SA) ss 5, 59J; Sentencing Act 2017 (SA) pt 3 div 5; Uniform Civil Rules 2020 (SA) rr 12.1, 12.2, 74.2, 74.5, 74.10; Uniform Special Statutory Rules 2022 (SA) rr 1.6, 3.1, referred to. Chattaway v Minister for Health and Wellbeing (2020) 136 SASR 347, applied. Attorney-General (SA) v Annette [2022] SASC 99; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Attorney-General (SA) v Fenner [2020] SASC 107; Attorney-General (SA) v Jackson [2024] SASC 75; Attorney-General (SA) v Kamara [2024] SASC 155; Attorney-General (SA) v Symonds [2021] SASC 145; Attorney-General (SA) v V, ZR [2019] SASC 1; Bennett v Police (2005) 239 LSJS 465; BKE v Office of Children’s Guardian [2015] NSWSC 523; Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18; Duckett v The King [2025] SASCA 44; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Garlett v Western Australia (2022) 277 CLR 1; Isles v Nelissen (2022) 367 FLR 338; Jackson (formerly Subramanian) v Legal Practitioners Admissions Board [2007] NSWCA 289; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Lang v R (2023) 278 CLR 323; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v England (2004) 87 SASR 411; Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; State of NSW v John Owen Conway [2011] NSWSC 976; Teachers Registration Board of South Australia v Kourlas [2025] SASCA 13; Wichen v The King [2022] SASC 158, discussed. GM v Department of Human Services [2025] SASCA 68; Driver v Attorney-General (SA) (2022) 140 SASR 282, considered. -- 3 of 38 -- -- 4 of 38 -- ATTORNEY-GENERAL (SA) v ROWE [2025] SASC 189 Criminal: application 1 B DOYLE J: Under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) a defendant who is found to have committed the objective elements of an offence, but to have been mentally incompetent to commit the offence, must be declared to be liable to supervision. 2 When that occurs, the Court must decide under s 269O whether to release the defendant unconditionally or to make a supervision order committing the defendant to detention or releasing the defendant on licence on particular conditions. 3 If a supervision order is made, the Court must fix a limiting term equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would have been appropriate if the defendant had been convicted. 4 At the end of the limiting term, a supervision order in force against the defendant lapses, subject to the application of Subdivision 3 of Division 4, which provides for continuing supervision orders to be made. 5 When an application for such an order is made, the Court must direct that a legally qualified medical practitioner inquire into the mental condition of the defendant and report to the Court on the condition, including a diagnosis and prognosis and a suggested treatment plan for managing the condition. 6 The Attorney-General, through the Crown Solicitor, has prepared a letter of instruction to a medical practitioner. The parties have discussed its contents but disagree about the extent of the materials to be included. 7 By interlocutory application dated 17 July 2025, the respondent, Mr Rowe, has made an interlocutory application seeking that ‘any materials relating to allegations of misconduct or offending which amount to unproved allegations be removed from the material intended to be sent by the Attorney General’. He argues that the material is not admissible, is prejudicial, and should not be provided to an expert writing a report for the Court. 8 The parties’ submissions traversed a wide range of issues by way of context. Consequently, my reasons canvass some of those broader considerations. However, in the end, this ruling turns on the particular circumstances of this matter. 9 For the reasons that follow, I decline to direct that any of the objected to materials not be provided to and considered by the medical practitioner. It is premature to decide whether any of those materials will be inadmissible on the ultimate hearing of the application. Some may not be relied upon. Subject to the -- 5 of 38 -- [2025] SASC 189 B Doyle J 2 opinion expressed by the medical practitioner, the allegations contained in some documents may become important. If a genuine issue emerges about the correctness of facts asserted in particular documents, it may be that some of the documents are not admissible, or it may be that they are admissible subject to the authors being made available for cross-examination. It is also premature to resolve those issues. Background 10 The respondent is a young man who has been diagnosed with treatment resistant schizophrenia and substance misuse disorder. He has also been assessed as having a mild cognitive impairment secondary to treatment resistant psychotic illness and substance use causing brain injury. 11 On May 2020, the respondent was dealt with in relation to three charges: • he was convicted but discharged without penalty for an allegation of dishonestly taking property without consent in 2018; • he was found not guilty pursuant to Part 8A of the CLCA in relation to a charge of assault committed on 19 February 2018 whilst the respondent was an inpatient at Glenside Health Services (‘February 2018 conduct’) and committed to detention for a period of three months; • he was convicted of an assault causing harm committed on 5 November 2018 at Glenside Health Services (‘November 2018 conduct’) and sentenced to imprisonment for a period of two months and 24 days commencing on 3 March 2020. 12 There was another allegation in relation to conduct of the respondent whilst he was a resident at Glenside Health Services. The allegation was that on 16 August 2018 he pushed or bumped an agency nurse without warning (‘August 2018 conduct’), causing the nurse to suffer minor bruising to his right forearm and some back pain. South Australia Police elected to discontinue the charge on the basis that the respondent claimed it was an accident, and there was seen to be insufficient evidence to refute that as a reasonable possibility. 13 On 23 August 2023, the respondent was dealt with in relation to three further matters relating to conduct in 2022 and 2023: • he was convicted but discharged without penalty for dishonestly taking property without consent on 30 June 2022 (‘June 2022 conduct’); • he was convicted of driving or using a motor vehicle on 12 October 2023 without consent and driving whilst unlicensed, resulting in a driver’s licence disqualification for a period of 12 months and a discharge without penalty (‘October 2022 conduct’). -- 6 of 38 -- [2025] SASC 189 B Doyle J 3 14 The charge which has more recently resulted in a supervision order that in turn provides the context for the present application for a continuing supervision order relates to conduct on 16 April 2023 (‘April 2023 conduct’). 15 The respondent was charged with having on that date committed an aggravated assault.1 The facts of charge alleged that the respondent, who was in receipt of 24 hour care, aggressively requested that his carer leave his rented premises. That led to the victim and another person attending the premises to ask the respondent why he had told the carer to leave. They reminded him that he had an upcoming court hearing soon. 16 It was alleged that the respondent then stood up and walked over to the victim and punched him four times in the face with closed fists. The victim was caught off guard. The respondent then jumped on top of the victim, kicking him in the torso. A witness was able to restrain the respondent to allow the victim to run to the door and the witness, victim and carer were then able to exit. The respondent pursued the victim into the front yard and the assault continued. The victim and respondent moved onto the roadway. The assault only stopped when vehicles started piling up and sounding their horns continuously. Luckily, the victim’s injuries were only minor. When police attended, the respondent was reportedly compliant and produced a small bag of cannabis from his trousers. 17 In a report dated 29 June 2023 prepared pursuant to s 269F.A(1)(b) of the CLCA, Dr Raeside made reference to observations made by a psychiatrist, Dr Burgess, upon the respondent’s assessment at the Adelaide Remand Centre shortly after the assault. Dr Burgess had reported the respondent making delusional statements to the effect that a family member was running a ‘rape curriculum’ against him and that on the occasion of the assault he thought he was ‘going to get murdered’. 18 In Dr Raeside’s assessment, the material was consistent with the respondent being unable to know the wrongfulness of his actions. Dr Raeside considered illicit drug use, particularly methamphetamine, would have aggravated the respondent’s mental state. However, Dr Raeside could not say it was a substantial cause of the respondent’s psychosis at the time given his long history of chronic delusional ideas consistent with those he was experiencing at the time of the assault. 19 Dr Raeside’s conclusion and recommendations were expressed in the following terms. CONCLUSION AND RECOMMENDATIONS In summary, Mr Rowe is a 25-year-old man with a reportedly unremarkable childhood apart from some disruptive behaviour at school. He appears to have commenced using illicit drugs and alcohol in his early teens and subsequently developed what were considered drug induced psychotic episodes requiring hospitalisation. Eventually it 1 CLCA, s 20(3). The circumstance of aggravation alleged was that the male victim was known by the respondent to be over 60 years old. -- 7 of 38 -- [2025] SASC 189 B Doyle J 4 became apparent he had underlying Schizophrenia as the psychotic symptoms persisted and worsened despite absence of illicit drugs at times. Mr Rowe’s condition has become entrenched. There has been difficulty managing him in the community, often requiring hospitalisations, although this has decreased in recent times. His chronic psychotic illness has been aggravated by his ongoing illicit drug use, and nonadherence with medication and treatment at times despite best efforts in the community. Diagnosis Mr Rowe has treatment resistant Schizophrenia. There is indication that he previously responded relatively well to Clozapine, an oral antipsychotic particularly useful in treatment resistant Schizophrenia, but his compliance was difficult and he subsequently relapsed and required long admission to the Inpatient Rehabilitation Service. Despite the presence of some antisocial personality traits, the early developmental history does not support a diagnosis of an underlying personality disorder without any evidence of childhood Conduct Disorder. Clearly Mr Rowe has a Substance Use Disorder including methamphetamine, cannabis, and alcohol at times. This began before the onset of his psychotic illness but continues until the current time. Not only does his substance use precipitate relapses of active psychotic symptoms, or at least exacerbates those, it also is directly related to his aggression related to his delusional ideas or due to general agitation and disinhibited behaviour. As noted, Mr Rowe has been assessed as being in the Mild Intellectually Disabled range with associated cognitive impairment, contributed to by chronic Schizophrenia. Mental Competence As indicated above, I would not support a mental impairment defence in relation to the theft charge, or the driving charges. However, I would support a mental impairment defence in relation to the aggravated assault upon a NDIS worker. Mr Rowe is relatively settled at present in custody, abstinent from illicit drugs, and receiving regular medication. However, I consider him barely fit to plead and requires considerable support from his lawyer in order to progress through the various court matters. He might also be assisted by frequent breaks to enable him to rest, as well as to confer with his counsel. Treatment and Prognosis Mr Rowe is a relatively young man with quite severe Schizophrenia that has only partially responded to optimum treatment. He is at significant risk of relapse and worsening of his symptoms, either by the nature of the illness itself, or by using illicit drugs, or due to erratic compliance with medication. In the community, Mr Rowe requires very assertive community mental health treatment with strict abstinence from illicit drugs and alcohol, considerable social support regarding his general functioning, and other measures to assist him. If committed to detention and hospitalised for a sufficient length of time, Mr Rowe could be recommenced on Clozapine. However, ultimately this is unlikely to prove successful -- 8 of 38 -- [2025] SASC 189 B Doyle J 5 due to his likelihood of quick noncompliance in the community as well as further illicit drug use. … 20 In these circumstances, it was accepted that the respondent was mentally incompetent to commit the offence of aggravated assault alleged against him. The objective elements were not in dispute. 21 The magistrate before whom the assault charge was proceeding observed that, because the respondent had been charged with a summary or minor indictable offence, the respondent was in the first instance to be dealt with under Division 3A of the CLCA. However, as the magistrate was empowered to do, he declared the respondent liable to supervision under Division 4 Subdivision 2. 22 At the time of disposition, the respondent had spent four months and 17 days in custody. The magistrate indicated that in the ordinary course the offending would have required imprisonment for that period with any further period of imprisonment likely suspended on a partially suspended sentence bond with a period of supervision for a period of 18 months. The limiting term of the supervision order therefore became 18 months. 23 The magistrate specified terms upon which the respondent was to be supervised on a Division 4 Subdivision 2 licence. Those terms required him to attend for assessment and, if assessed as suitable, go to and complete any psychiatric, psychological and medical assessments and obey the reasonable directions of his supervising officer. He was required to continue to receive his medication and not use or possess drugs. There were other conditions, but it is unnecessary to detail them. 24 There are three subsequent matters which should be mentioned: • on 24 May 2024, the respondent was convicted and fined $20 for having between 8 March 2023 and 1 April 2023 travelled on a passenger service without paying a fee; • on 21 November 2024, the respondent was found not guilty by reason of mental incompetence of possessing equipment to use with a controlled drug on 21 December 2023 (‘December 2023 conduct’); • it is alleged that on 29 February 2024, the respondent attended the home of his brother-in-law and assaulted him by punching him 15-20 times in the back of the head (‘February 2024 conduct’). Charges were not proceeded with on the basis that the victim was family and that an intervention order would be put in place. The victim signed a document to that effect on 7 May 2024. 25 In respect of the alleged February 2024 conduct, a minute dated 1 March 2024 was prepared for the Secretary of the Parole Board, stating that the conduct placed the respondent in breach of condition 1 of his licence order, and revocation -- 9 of 38 -- [2025] SASC 189 B Doyle J 6 of the licence order was recommended by the relevant Community Corrections officer. 26 An updated minute dated 8 March 2024 cited a breach of condition 7 of the licence order on the basis that the respondent reportedly did not attend for a scheduled depot injection. The recommendation to revoke the licence was re- emphasised. 27 In March 2024, an application was made for a review of the supervision order imposed in January 2024. A warrant of apprehension was issued and thereafter the respondent was remanded to James Nash House or another secure mental health facility under the care of the Minister for Health and Wellbeing. Ultimately, on 21 November 2024, a magistrate made an order amending the supervision order so that it ceased to provide for release on licence and instead committed the respondent to detention until the supervision order was further varied by the Court. The proceedings and the interlocutory application 28 The limiting term in respect of the supervision order was due to expire on 24 July 2025. The applicant made an application under Division 4 Subdivision 3 on 26 May 2025. By reason of s 269UA(2) of the CLCA, the respondent’s limiting term is taken to continue until the application is determined by this Court. 29 Material relied upon by the applicant in relation to the application is contained in affidavits sworn by Barnaby Grant on 21 May 20252 (‘first affidavit’), 28 May 20253 (‘second affidavit’), 24 July 20254 (‘third affidavit’) and 1 August 20255 (‘fourth affidavit’). 30 On 16 June 2025, pursuant to s 269UA(4), McIntyre J directed that one or more legally qualified medical practitioners inquire into the mental condition of the respondent and report to the court on the mental condition of the respondent including a diagnosis and prognosis of the condition and a suggested treatment plan for managing the respondent’s condition. 31 On 15 July 2025, the Crown Solicitor wrote a letter of instruction to the medical professional referring to a bundle of enclosed materials. A draft was shown to the respondent’s legal representatives, who voiced an objection to some of the material being provided to the practitioner. The letter as finally sent stated: On 3 July 2025, the Respondent’s legal representative responded to the effect that the Respondent: 2 FDN 2. 3 FDN 8. 4 FDN 22. 5 FDN 23. -- 10 of 38 -- [2025] SASC 189 B Doyle J 7 • Objected to the provision of any documents related to any incident which could constitute an offence which did not result in charges being laid, or where charges were discontinued; • Any reference in the review panel’s report to the above; • Any reference in his criminal record in relation to matters which were withdrawn or not proceeded with; • Any reference to an incident which might constitute offending which [might] have been laid but not yet proved. It is this office’s position that the materials enclosed herewith are relevant to the preparation of the report, notwithstanding that some of the materials relate to matters which have not been proven or admitted. I invite you to note in your report if you have taken any unproved or unadmitted criminal allegations into account and to what extent they have influenced your assessment of the Respondent’s diagnosis or prognosis, and/or influenced your suggested treatment plan for managing the defendant’s condition, if at all. … Request Pursuant to s 269UA(4) of the Criminal Law Consolidation Act 1935, your report is required to include a report of the medical condition of the Respondent, including: (a) a diagnosis and prognosis of the condition; and (b) a suggested treatment plan for managing the Respondent’s condition. 32 The respondent’s interlocutory application, to which I referred earlier, was made on 17 July 2025. 33 In written submissions filed in support of the interlocutory application, the respondent identified the following materials as being the subject of objection. Exhibit Description and objection BG-01 ‘Certificate of Record MCCRM-23-014479’ is verbose and irrelevant. BG-44 is sufficient to convey the relevant information. BG-03 ‘Offender History Report’ is a SAPOL document that is expansive and confusing. It contains irrelevant and prejudicial material. Part 2 Division 4 of the Evidence Act 1929 provides how previous convictions can be proved. Despite this the document exhibited at BG-44 is routinely accepted as sufficient to prove previous convictions and should be sufficient to convey relevant information. BG-04 ‘Certificate of Record MCCRM-24-010564’ is verbose and irrelevant. BG-44 is sufficient to convey the relevant information. -- 11 of 38 -- [2025] SASC 189 B Doyle J 8 BG-17 ‘Breach minute Parole Board 1.3.2024’. Is a Department of Correctional Services form containing unproven allegations and assertions and not in an admissible form. BG-18 ‘Breach minute Parole Board 8.3.2024’. Is a Department of Correctional Services form containing unproven allegations and assertions and not in an admissible form. BG-19 ‘Progress report to Parole Board 9.5.2024. Is a Department of Correctional Services document and objection is only taken to a contents relating to unproven offences BG-22 / BG 23 / BG-24 Allegations and assertions are unproven and inadmissible. Only the facts of offending accepted by the presiding Judicial officer are admissible. BG-25 / BG 26 / BG-27 Allegations and assertions are unproven, relate to withdrawn charges and are inadmissible. BG-28 / BG-29 / BG-30 Allegations and assertions are unproven and inadmissible. Only the facts of offending accepted by the presiding Judicial officer are admissible. BG-31 / BG-32 Allegations and assertions are unproven and inadmissible. Only the facts of offending accepted by the presiding Judicial officer are admissible. BG-33 to BG-37 Allegations and assertions are unproven and inadmissible. Only the facts of offending accepted by the presiding Judicial officer are admissible. BG-38 / BG-39 / BG-40 Allegations and assertions are unproven and inadmissible. Only the facts of offending accepted by the presiding Judicial officer are admissible. BG-41 / BG-42 Allegations and assertions are unproven, relate to withdrawn charges and are inadmissible. BG-43 Allegations and assertions are unproven and inadmissible. Only the facts of offending accepted by the presiding Judicial officer are admissible. 34 The more substantive objections may be grouped as follows: (1) material that relates to the April 2023 conduct (effectively, the index offending) to the extent that it goes beyond what was determined by the judicial officer dealing with the matter (the basis for the objections to BG-38, 39 and 40); (2) material that relates to other offending that has resulted in a conviction or a finding of not guilty by reason of mental incompetence to the extent that it goes beyond what was determined by the judicial officer, namely: (a) BG-22, 23 and 24 concerning the February 2018 conduct; (b) BG-28, 29 and 30 concerning the November 2018 conduct; -- 12 of 38 -- [2025] SASC 189 B Doyle J 9 (c) BG-31 and 32 concerning the June 2022 conduct; (d) BG-33, 34, 35, 36 and 37 concerning the October 2022 conduct; (e) BG-43 concerning the December 2023 conduct; (3) materials that relate to allegations that have been withdrawn, namely: (a) BG-25, 26 and 27 concerning the August 2018 conduct; and (b) BG-41 and 42 concerning the February 2024 conduct; (4) materials that relate to breaches found by the Parole Board but said to be unproven and/or in inadmissible form (BG-17 and 18); and (5) part of the content of a Progress Report by an officer of the Department of Correctional Services (‘DCS’) to the Parole Board (BG-19). 35 The respondent’s overarching contention is that the rules of evidence apply to the Court’s ultimate assessment of whether a continuing supervision order should be made and, in particular, that in deciding whether the subject of the proposed order could, if unsupervised, pose a serious risk to the safety of the community or a member of the community, the Court should not act upon allegations of past conduct that have not been found proved and/or are not proved. 36 It follows, the respondent submits, that it is not appropriate for an expert providing an independent opinion to be provided with allegations, particularly where the material in support of them is inadmissible and may prejudicially influence or bear on the expert’s assessment. The relevant provisions 37 As explained earlier, a person who has been found not guilty by reason of mental incompetence may be subject to supervision, potentially including detention, for the duration of a limiting term set by the court that dealt with the offence, the objective elements of which have been proved. 38 Before the expiry of that limiting term, an application may be made to have the person subject to supervision, again potentially including detention, effectively on an indefinite basis. Such applications are governed by Subdivision 3 of Division 4 of the CLCA. 39 Before coming to the key provision, it may be noted that Subdivision 1, which comprises s 269NI, provides as follows: -- 13 of 38 -- [2025] SASC 189 B Doyle J 10 269NI—Principle on which court is to act (1) The paramount consideration of the court in determining whether to release a defendant under this Division or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general). (2) The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum. 40 A decision to impose a continuing supervision order is not within the class of cases referred to in s 269NI, but the safety of the community is explicitly critical to the operation of s 269UA, which provides: 269UA—Application for continuing supervision (1) If a defendant is declared to be liable to supervision under Subdivision 2, whether before or after the commencement of this section, the Crown may, while the defendant remains liable to supervision, apply to the Supreme Court to have the defendant declared to be liable to supervision under a continuing supervision order. (2) An application cannot be made under subsection (1) more than 12 months before the end of the limiting term fixed in respect of the relevant supervision order (and the limiting term will be taken to continue until the application is determined by the Court). (3) The Court must give the defendant at least 14 days written notice of the date on which it intends to conduct the proceedings to determine the application. (4) The Court must, before determining an application under this section, direct that 1 or more legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the defendant and report to the Court on the mental condition of the defendant, including— (a) a diagnosis and prognosis of the condition; and (b) a suggested treatment plan for managing the defendant's condition. (5) Each of the following persons is entitled to appear and be heard in proceedings under this section and must be afforded a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Court: (a) the defendant (personally or by counsel); (b) the Director of Public Prosecutions; (c) the Commissioner for Victims' Rights; (d) with the permission of the Court—any other person with a proper interest in the matter. (6) The Court may also take the following matters into consideration when determining an application under this section: -- 14 of 38 -- [2025] SASC 189 B Doyle J 11 (a) any relevant remarks made by the court by which the defendant was declared to be liable to supervision under Subdivision 2; (b) the behaviour of the defendant while under supervision; (c) any treatment, care and rehabilitation of the defendant while under supervision; (d) any reports tendered, and submissions made, to the Court under this section; (e) the likelihood of the defendant committing an offence of a violent nature should the defendant no longer be liable to supervision; (f) the character, antecedents, age, means and physical and mental condition of the defendant; (g) the probable circumstances of the defendant should the defendant no longer be liable to supervision; (h) any other matters that the Court thinks are relevant. (7) If the Court is satisfied, on the balance of probabilities, that the defendant to whom the application relates could, if unsupervised, pose a serious risk to the safety of the community or a member of the community, the Court must declare that, on the expiry of the supervision order under Subdivision 2, the defendant is liable to continuing supervision under this Subdivision. 41 If the Court makes a declaration of the kind contemplated by s 269UA(7) then, under s 269UB(1), the Court may make an order (a ‘continuing supervision order’) (a) committing the defendant to detention under the Subdivision or (b) releasing the defendant on licence. 42 If the Court determines that the defendant should be released on licence, there are mandatory firearms-related conditions that apply under s 269UB(3), and the Court may impose such other conditions as it decides, including, without limitation, those specified in s 269UB(4) concerning residence, a requirement to undergo assessments or treatments, and electronic monitoring. 43 By reason of s 269UB(6), a continuing supervision order remains in force until revoked by the Court. The Court can, however, vary or revoke the order on application under s 269UC(1). 44 Under s 269UA(7), the ultimate criterion upon which the Court’s power and duty to impose a continuing supervision order turns is the Court’s satisfaction, on the balance of probabilities, that the defendant could, if unsupervised, pose a serious risk to the safety of the community or a member of the community. 45 Before I consider the parties’ submissions in more detail, I address the preliminary question of whether and on what basis the Court may make orders about the material with which an expert is to be provided. -- 15 of 38 -- [2025] SASC 189 B Doyle J 12 Power to limit the materials provided to an expert 46 In a civil proceeding, party autonomy generally dictates that it is for the parties to decide whether to obtain expert evidence and the identity of any expert from whom a report is to be sought. Unless the expert is a shadow expert, the expert is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceeding or other person retaining the expert, to assist the Court impartially on matters relevant to their area of expertise.6 47 The Uniform Civil Rules 2020 (SA) (‘UCRs’) contain a relatively prescriptive regime in relation to the process of briefing an expert,7 and the form in which a report is to be prepared.8 It is designed to facilitate the admissibility of any expert report relied upon at trial, or at least to facilitate an assessment of the admissibility of such a report. The basic concept governing the admissibility of expert evidence is that the expert’s evidence should be presented so as to explain how the field of specialised knowledge in which the witness is expert by reason of their training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded.9 A corollary is that if the assumed facts (or facts sufficiently alike to them) are not established or proposed to be established by other admissible evidence, the opinion will not be admissible.10 48 Whilst the framework of the UCRs is designed to promote the preparation of reports that are admissible, in the context of an ordinary inter partes civil dispute, it is primarily (if not exclusively) for the party wishing to rely on the report to ensure that the material provided to the expert facilitates an admissible report. The provision of irrelevant and prejudicial material to an expert may not affect the admissibility of the report, because the expert may make clear that that material has played no role in the formation of their opinions. Any suggestion that the independence or cogency of their opinion has been affected by seeing the material would be a matter for cross-examination and, potentially, the weight to be given to their evidence. 49 Proceedings under Division 4 of Part 8A of the CLCA are governed by the Uniform Special Statutory Rules 2022 (SA) (‘USSRs’).11 Those rules are relevantly silent about any power of the Court to make directions about the manner in which a health professional is instructed for the purposes of preparing a report. Rule 3.1 provides that unless the Court otherwise orders and subject to any 6 Uniform Civil Rules 2020 (SA) (‘UCRs’), r 74.5. 7 UCRs, r 74.2. 8 UCRs, r 74.10. 9 Dasreef Pty Ltd v Hawchar at (2011) 243 CLR 588 at [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [91] (Heydon J), Lang v R (2023) 278 CLR 323 at [11] (Kiefel CJ and Gageler J), Duckett v The King [2025] SASCA 44 at [53] (Kourakis CJ, S Doyle and Bleby JJA). 10 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64]-[66] (Heydon JA), Bennett v Police (2005) 239 LSJS 465; [2005] SASC 167 at [26] (Doyle CJ). 11 USSRs, r 1.6 and Part 2 of Chapter 2. -- 16 of 38 -- [2025] SASC 189 B Doyle J 13 inconsistency with the USSRs, the UCRs apply to proceedings governed by the USSRs. 50 Rule 12.1 of the UCRs makes clear that the Court may make any order it considers appropriate in the interests of justice. In particular, r 12.1(3) provides that the Court may give directions about the procedure to be followed in a proceeding to resolve uncertainty about the correct procedure to be adopted. Rule 12.2 makes clear that in making orders the Court will have regard to matters including the efficient conduct of the business of the Court. The UCRs contain a number of other provisions which contemplate that the Court may regulate the form in which evidence is to be adduced at trial. 51 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. 52 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. The contentions and some general observations 53 In advancing the interlocutory application, the respondent relied upon: • decisions concerning the admissibility of evidence in the context of other legislative regimes under which reports are directed to assist the Court in making a risk assessment; and • observations of the High Court about the importance of the rules of evidence in the context of other legislative regimes which may result in ongoing detention or supervision. 54 For instance, the respondent drew attention to decisions of the High Court in which it has upheld the validity of State legislation aimed at protecting the community by imposing various restrictions on personal liberty of persons deemed to be a risk to the community. -- 17 of 38 -- [2025] SASC 189 B Doyle J 14 55 It was emphasised that in Fardon v Attorney-General (Qld)12 (‘Fardon’), the scheme of preventative detention administered by the Supreme Court was one to which the rules of evidence applied. That was one of a number of features emphasised by Gleeson CJ in deciding whether the legislation in question conferred a function on the Supreme Court that was repugnant to its institutional integrity.13 56 In Attorney-General (NT) v Emmerson,14 the plurality emphasised that Fardon was decided differently to Kable v Director of Public Prosecutions (NSW)15 because the adjudicative process required of the State Supreme Court supported the maintenance of the institutional integrity of the Court and could be performed independently of any instruction, advice or wish of the legislative or executive branches of government.16 Whilst the application of the ordinary rules of evidence is an aspect of the adjudicative process, it was not said in every case to be an indispensable feature of the process. 57 Similarly, whilst with one modification the rules of evidence applied to the high risk offender legislation upheld in Garlett v Western Australia,17 the reasons of the majority do not go so far as to suggest that, absent that feature, the scheme would necessarily have been invalid. The reasoning turned on a multi-faceted evaluation of the task conferred on the Court.18 58 An important hallmark of judicial decision-making, independent of the executive, is that the Court is given, and permitted to perform, the task of finding facts based on cogent material and free from executive instruction. The application of the ‘rules of evidence’ may assist in that task, but the content of those rules in a particular jurisdiction may be highly permissive or they may be highly restrictive. What is most vital from the perspective of institutional independence and integrity is that the court’s approach to fact finding not be dictated to by the executive, and that the court be free to act on the material it finds cogent. It must be remembered that even if the rules of evidence do not apply, a court is not bound to give weight to evidence that it regards as insubstantial or remote from the issues. So long as the fact-finding process is not constrained in a fashion that impairs the independence and integrity of the Court, the proposition that the applicability of ‘rules of evidence’ is essential to the validity of a scheme, is, to my mind, too broad. 12 (2004) 223 CLR 575. 13 (2004) 223 CLR 575 at [3], [19]. 14 (2014) 253 CLR 393. 15 (1996) 189 CLR 51. 16 (2014) 253 CLR 393 at [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 17 (2022) 277 CLR 1. 18 (2022) 277 CLR 1 at [37], [56], [64], [73], [107] (Kiefel CJ, Keane and Steward JJ), [243] (Edelman J), [291] (Gleeson J). -- 18 of 38 -- [2025] SASC 189 B Doyle J 15 59 That having been said, I would proceed on the basis that the rules of evidence are generally applicable upon the ultimate hearing and determination of an application pursuant to s 269UA. 60 Section 5 of the Evidence Act 1929 (SA) provides that the provisions of that Act apply, unless an intention to the contrary is expressed, or is implied by the context, to every proceeding before any court. 61 In Attorney-General (SA) v Jackson,19 Kourakis CJ considered an application for a continuing detention order pursuant to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). An application of that kind requires proof that a high risk offender has breached a condition of their extended supervision order and that they pose an appreciable risk to the safety of the community if not detained in custody. 62 The Chief Justice said:20 This matter was first called on for hearing on 2 May 2024. Unfortunately, the alleged breaches of the respondent’s extended supervision order (ESO) were not properly particularised. Nor was all of the evidence on which the Attorney-General relied in an admissible form. It should not be assumed that the hearing and determination of applications for continuing detention orders can proceed on the amorphous material initially filed in support of the applications. The hearing should proceed in much the same way as charges for criminal or disciplinary offences, so that the respondent is accorded procedural fairness and so that the application is supported by admissible evidence. 63 Those observations were primarily directed towards the identification and proof of breaches of an extended supervision order. Whilst there is no reason to doubt that the rules of evidence are also generally applicable to the assessment of an ‘appreciable risk’ in the context of the HRO Act, proof of a risk is a concept that, depending on the precise context, may potentially result in a wide range of evidence being admitted. 64 As well, depending on the statutory context in which the risk assessment is called for, the extent to which it is necessary for past facts from which a risk is inferred to themselves be proved to some particular standard may vary. 65 The discussion of the approach to proof of a risk in GM v Department of Human Services (‘GM’)21 is instructive. That case concerned the scheme for conducting working with children checks (‘WWCCs’) by a Central Assessment Unit (‘CAU’) under the Child Safety (Prohibited Persons) Act 2016 (SA) (‘CSPP Act’). Under that scheme the CAU must assess defined assessable information relating to a person against prescribed risk criteria ‘to determine whether or not the person poses an unacceptable risk to children’, and, ultimately, whether the person 19 [2024] SASC 75. 20 [2024] SASC 75 at [2]. 21 [2025] SASCA 68. -- 19 of 38 -- [2025] SASC 189 B Doyle J 16 is, or is not, to be prohibited from working with children. The CAU was not bound by the rules of evidence. 66 The Court of Appeal undertook an analysis of the statutory framework and the evident policy of the legislation in question. The text, context and purpose of the statute informed its approach to the meaning of ‘unacceptable risk’ and the extent to which past events needed to be found according to some standard before they could be relevant to the ultimate assessment of risk. 67 The Court said: [101] In our view, the phrase ‘poses an unacceptable risk to children’ takes its colour from the primary object of the Act, which is to minimise the risk to children posed by those who work with them. A WWCC does not, and the CSPP Act recognises that it cannot, eliminate all risks to children in a workplace. However, a WWCC has an important role in serving the primary object of the CSPP Act. If a person is assessed to pose an unacceptable risk to children, the CSPP Act contemplates that the person is to be prevented from working with children. In that sense, the concept of posing an ‘unacceptable risk to children’ is outcome-focused. This observation is not at odds with acceptance of the appellant’s submission that ‘unacceptable risk’ denotes an objective standard. It simply indicates that the question of ‘unacceptability’ of a risk is to be informed by the object of minimising the risk to children. … [107] The exercise involves an evaluative assessment of risk, informed by the legislative context and in particular the purpose and objects of the CSPP Act. This includes the primary object of minimising the risk to children posed by persons who work with them,22 and the paramount consideration being the best interests of children, having regard to their safety and protection.23 [108] The exercise involves an evaluation of the risk that a person poses to children. This in turn involves an identification of the types of risk, and an assessment of both the likelihood of the risk occurring, and the seriousness of the possible consequences if it does occur. [109] This encompasses the risk of harm of any kind to children, including physical, sexual, psychological and emotional harm. [110] As to the degree of risk, the exercise involves an assessment of the likelihood of the apprehended harm occurring. It will usually involve a consideration of the past behaviour and conduct of the relevant adult. That may take the form of abuse of a physical, sexual, psychological or emotional nature. It will include abuse in its widest sense, and so including conduct such as manipulation, intimidation, threats, harassment or neglect. But it will also extend to consideration of conduct that might be described as grooming or poor boundary recognition (particularly in the context of relationships involving a degree of authority or power on the part of the adult). It will include other behaviour which might be indicative of a prurient interest in a child or children, or of an interest in other inappropriate sexual or violent behaviour. It will also include behaviour which might represent a less direct risk of harm to 22 CSPP Act, s 3(1). 23 CSPP Act, s 3(3). -- 20 of 38 -- [2025] SASC 189 B Doyle J 17 children, such as a dysfunctional or hazardous lifestyle, difficulties with the abuse of alcohol or drugs, or adherence to social attitudes or beliefs which conflict with broader community norms. [111] As mentioned later in these reasons, past conduct need not be proven to any particular standard for it to be relevant to the assessment. Nor does there need to be a likelihood of any particular form of harm occurring before it may be taken into account. However, in determining what weight should be attached to information about past conduct and the prospect of apprehended harm in the future, it will be important to have regard to where on the spectrum of proof or satisfaction the information as to past conduct lies. It will be important to have regard to whether it represents, for example, proven past conduct, allegations based upon some sound factual basis and from an apparently credible source, or mere allegations without any identified factual basis or source. [112] As to the seriousness of the risk, this involves a consideration of the potential gravity of the consequences for a child were the apprehended harm to occur. This may range from a risk of immediate and significant physical or sexual harm, through to a risk of a longer-term form of psychological or emotional harm. [113] The assessment will often be multi-faceted, involving consideration of a range of information about past behaviours and risks, of varying types and with varying degrees of likelihood and seriousness. In such cases, it will require an assimilation and synthesis of this information, in order to arrive at an overall assessment of the risk that the relevant adult poses to children. [114] The CAU must then make an evaluative assessment of whether the relevant adult poses an unacceptable risk to children. This involves an assessment against an objective normative standard of the risk that would be acceptable to the community, having regard to the objects of the CSPP Act and hence with a focus upon the best interests of children. [115] It may be expected that a realistic prospect of relatively serious harm would ordinarily be unacceptable. Conversely, it may be expected that a fanciful, farfetched or theoretical prospect of mild or insignificant harm would ordinarily be acceptable. However, as should be apparent from the above articulation of the process, it is difficult, and generally unwise, to generalise. 68 The Court went on to consider whether the determination of ‘unacceptable risk’ was required to be made on the balance of probabilities. Differing from the reasoning of a five-member bench of the Federal Circuit and Family Court of Australia (Division 1),24 the Court explained why there was and is no conceptual barrier to the proposition that a court or tribunal may be required to find the existence of a particular risk according to a particular standard of proof such as the balance of probabilities.25 69 However, as the Court explained, so to recognise is not to conclude that that will always be required by the statutory framework, and nor does it resolve the question whether, if the risk must be proved according to a particular standard, a 24 Isles v Nelissen (2022) 367 FLR 338. 25 [2025] SASCA 68 at [137]-[154] (Livesey P, S Doyle and Bleby JJA). -- 21 of 38 -- [2025] SASC 189 B Doyle J 18 decision-maker is confined to facts which, if in dispute, have themselves been proved on the balance of probabilities. 70 As to the latter question, the Court noted the different views expressed by the majority and minority in the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof)26 and observed that in other contexts in Australia, the more flexible approach of the minority in the House of Lords had been adopted. For instance, in BKE v Office of Children’s Guardian,27 Beech-Jones J had said: … it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven. 71 Both parties in GM accepted the more flexible approach applied to a WWCC risk-assessment. Where they differed was as to the question whether the existence of the risk was required to be proved to a particular standard. As noted, the Court of Appeal saw no conceptual barrier to an acceptance of that proposition, observing:28 … Whilst conscious of the force of the judicial and academic views to the contrary,29 had the task of determining this risk been conferred upon a court in the context of civil proceedings, we would have been inclined to hold that this was the applicable standard. The difficult and contestable nature of the determination does not mean that it cannot, or should not, be made according to this standard. 72 In the ultimate analysis, however, the Court concluded that the standard did not apply. The fundamental reason for so concluding was the statutory selection of an administrative decision maker for the determination of unacceptable risk under s 26(1) of the CSPP Act, accompanied by a statutory prescription that the decision maker is not subject to the rules of evidence.30 In that regard, whilst the Court acknowledged the attraction of the argument that the rules of evidence relate only to the reception of evidence and not the means by which or the standard against which it is assessed, it acknowledged authority that supported a connection between the two.31 73 As has been seen, s 269UA(7) of the CLCA leaves no doubt that if a continuing supervision order is to be made, the Court must make a finding on the 26 [1996] AC 563. 27 [2015] NSWSC 523 at [33]. 28 [2025] SASCA 68 at [164] (Livesey P, S Doyle and Bleby JJA). 29 See, e.g., P Parkinson ‘Possibilities, Probabilities and the Standard of Proof in Determining an Unacceptable Risk of Sexual Abuse’ (2015) 29 AJFL 1, critiquing several of the leading cases, and Hon John Fogarty, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 AJFL 249. 30 [2025] SASCA 68 at [169] (Livesey P, S Doyle and Bleby JJA). 31 [2025] SASCA 68 at [172] (Livesey P, S Doyle and Bleby JJA). -- 22 of 38 -- [2025] SASC 189 B Doyle J 19 balance of probabilities that the respondent could, if unsupervised, pose a serious risk to the safety of the community or a member of the community. 74 The questions which potentially bear on the matter before the Court, either in the context of this interlocutory application, or at the ultimate hearing, are: • whether past conduct (which may amount to a criminal offence) may inform the relevant risk analysis if it has not (yet) been the subject of a judicial or other finding; and • whether if past conduct of a criminal nature (not previously the subject of a judicial finding) can be considered as part of the Court’s risk assessment under s 269UA(7), the past conduct must be found according to some standard or whether the ‘flexible’ approach applies. 75 Before I turn to the language, context and purpose of s 269UA, it is convenient to refer to the decisions in the context of indefinite detention orders under Division 5 of Part 3 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) and extended supervision orders and continuing detention orders under Parts 2 and 3 respectively of the HRO Act. Decisions relating to the Sentencing Act and HRO Act 76 In Driver v Attorney-General (SA)32 (‘Driver’), the issue was whether the primary judge had erred in making a finding on the balance of probabilities that the proposed subject of an indefinite detention order under the Sentencing Act had committed uncharged rapes on the basis of statements made by him to a psychiatrist who provided a report on the question of whether he was unwilling to control his sexual instincts. 77 The appellant argued, by analogy with the sentencing process in which matters of aggravation are required to be proved beyond reasonable doubt, that if further offending were to be found, it was required to be found beyond reasonable doubt. Rejecting that analogy, the Court said:33 The concern of the section remains one of community protection, based primarily on an assessment of risk (framed in s 57(7) as a question of appropriateness). The primary integer of this assessment is whether the person is incapable of controlling, or unwilling to control, their sexual instincts. While conviction of a relevant offence enlivens the discretion, the assessment looks beyond that conviction. Other facts will also inform the risk contemplated by the section. That does not mean that the person is to be detained in a punitive response to those facts. Rather, the assessment of whether the person is incapable of controlling, or unwilling to control, their sexual instincts will take those facts into account, as will the ultimate assessment of risk that informs the discretion. The analogy to the process of sentencing for a proved offence is, subject to the discussion immediately following, inapt. 32 (2022) 140 SASR 282. 33 (2022) 140 SASR 282 at [30] (Kourakis CJ, Doyle and Bleby JJA). -- 23 of 38 -- [2025] SASC 189 B Doyle J 20 78 The appellant in Driver also relied upon observations made by Bleby J in relation to proof of aggravating features of index offending where a sentence of indefinite duration was under consideration under a predecessor provision contained in the Criminal Law (Sentencing) Act 1988 (SA).34 His Honour had found that in the particular context of the application he was considering, matters of aggravation in respect of the index offending could only bear on the risk assessment if they had been proved beyond reasonable doubt. 79 The Court of Appeal in Driver distinguished that reasoning, observing:35 In the present case, the Attorney-General brought the application under s 57(3), that is, where the appellant had been convicted and was already serving a sentence of imprisonment. All facts had long since been found for the purposes of sentencing. All relevant matters of aggravation of the index offending can be taken to have been proved beyond reasonable doubt. The task in England, that of determining primary facts of aggravation of the index offending for the purpose of making an order capable of “affecting the penalty” for that offending, therefore does not arise. In the present case, the primary judge's task was to determine whether it was appropriate to order that the appellant be detained in custody until further order. That task incorporated, by implication, the question of whether he was unwilling to control his sexual instincts. The question now is whether, in determining facts relevant to that task, the judge was required to make any finding that the appellant had raped other women (expressed at that level of abstraction), beyond reasonable doubt. To summarise, the abstract analogy with sentencing is inapt, as an order under s 57(7) has no punitive function. The reasoning in England is not directly applicable either, as it is concerned with proof of primary facts relating to the index offending to which the power responds directly. The standard of satisfaction required under s 57(7) is the civil standard, although the subject matter would demand that this should be approached in accordance with the principles explained in Briginshaw v Briginshaw. Where, in civil proceedings, one party alleges conduct of a criminal nature against another, the standard of proof remains the civil standard, although the court is required to bear in mind the gravity of the allegation and the consequences for the party adversely affected by a finding of such conduct. 80 The Court continued:36 When considering whether to make an order under s 57(7), it will be necessary to find facts, in addition to the facts the subject of the index offending, that are relevant to the questions of the person's “unwillingness” and the “appropriateness” of an order. Those questions require determination on the civil standard. Any allegation of particular seriousness that is relevant to these inquiries should be approached on the basis of the principles stated by Dixon J in Briginshaw v Briginshaw. That includes any allegation of conduct that would be criminal: there is no reason to infer that the legislature intended that the criminal standard should apply. 34 R v England (2004) 87 SASR 411 at [52], [58]. 35 (2022) 140 SASR 282 at [43]-[46] (citations omitted) (Kourakis CJ, Doyle and Bleby JJA). 36 (2022) 140 SASR 282 at [49]-[50] (citations omitted) (Kourakis CJ, Doyle and Bleby JJA). -- 24 of 38 -- [2025] SASC 189 B Doyle J 21 In expressing his finding that the appellant's statements about “raping other women” represented “what has occurred”, the judge was not purporting to make a finding of criminal guilt. In context, that finding can be no more than the judge accepting the truth of the appellant's admissions, at the level of abstraction at which they were made, devoid of detail as they were. Those admissions were relevant to the inquiry at hand. 81 The Court then turned to the complaint that the primary judge had erred by placing weight on the opinions expressed by psychiatrists about the appellant’s willingness to control his sexual instincts, the submission being that the psychiatrists did not practice in the area of, or were not sufficiently expert on the topic of, prediction. As to that, the Court said:37 … However, on the question of admissibility, the primary difficulty for the appellant lies in the terms of s 57(9), which requires the Court to take into account the reports of the legally qualified medical practitioners. Those practitioners are tasked, by s 57(6), “to inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts”. It is difficult to conclude from this statutory requirement anything other than that the opinions of medical practitioners engaged under s 57(6), on that question of unwillingness, must necessarily be admissible. How the Court then treats them is another matter. Those opinions, however couched, will not, as White J observed in R v Whyte, “ordinarily encompass all the matters relevant to the Court's assessment”.38 Further, the limits of those opinions, including the limits imposed by the medical practitioner's expertise, remain available to be tested in cross-examination. That is the case, however those opinions may be expressed. 82 Similarly, in the context of an application for release on licence of a person who had been made the subject of an indefinite detention order, in Wichen v The King,39 the Chief Justice said:40 I doubt that there is any accepted area of expertise in predicting the likelihood that a particular offender in particular circumstances will reoffend. I accept of course that epidemiologically there are clearly identified risk factors and relatively well refined psychological tools for risk assessments generally. Dr Nambiar explained that a common tool used by psychiatrists in Australia to evaluate the risk of violent offending is known as ‘the RSVP’. It addresses the general risk factors for recidivism in sexual offenders but it is difficult to ‘drill down on each individual and say given conditions that they might be in, whether in fact they would breach or not’. The tools for analysis of risk factors were mostly developed in the United States and the United Kingdom. No Australian assessment tool has been developed. However, the more commonly used tools from the United States and the United Kingdom have been validated in Australia by a process of ‘inter-rate reliability’. A test is validated in that way if a number of clinicians evaluating the same individual, assess the same or similar risk. Dr Nambiar agreed that validation may only show that the clinicians think in the same way. I observe 37 (2022) 140 SASR 282 at [61] (Kourakis CJ, Doyle and Bleby JJA). 38 R v Whyte [2006] SASC 56 a [29] (White J) (emphasis added). 39 [2022] SASC 158. 40 [2022] SASC 158 at [68]-[71]. -- 25 of 38 -- [2025] SASC 189 B Doyle J 22 that alternatively, validation, in that sense, may show no more than that the tool has been designed to reduce differences in results as between clinicians. Nonetheless, in accordance with s 59(4)(a) of the Sentencing Act I have regard to, and indeed place substantial weight on, the opinions and concerns of Dr Nambiar and Dr Nguyen. Be that as it may, the ultimate decision rests with the judge hearing the application who must make an evaluative judgment based on the evidence and institutional and personal judicial experience. 83 Turning from the context of the Sentencing Act regime for indefinite detention to the HRO Act, and the question of the categories of conduct that are available for the task of determining whether the respondent should be the subject of an extended supervision order, in Attorney-General (SA) v V, ZR (‘V, ZR’),41 Hughes J said that:42 [27] … Those which are not amenable to be considered are those which behaviour is not proven or admitted, and which is proposed to be evaluated by the Court directly. The index offending and the breaches of bail are relevant. They describe conduct that has been established through a court process. Section 7(6)(j) refers to offences in respect of which the respondent has been found guilty according to his or her criminal history and any pattern of offending behaviour disclosed by that history. “That history” in this provision refers to “criminal history” and should be understood as referring to matters in respect of which the respondent has been found guilty.43 [28] The non-compliance on 1 August 2018 with the interim supervision order may be taken into account. That conduct was found by the Parole Board to have occurred following a process of interview. [29] However, in respect of assertions of conduct that have not been admitted or proven, such as the charges contained in the information laid on 1 November 2018, it is difficult to see how the Court can find such conduct to be established to any degree sufficient to then incorporate the proposition into an assessment of the risk posed by the respondent. [30] I accept that Dr Haeney may incorporate allegations that have not been proven in his process of assessing risk.44 That is a different process using expert psychological tools. [31] Even if the legislative scheme intends that unadmitted allegations that have not been the subject of a testing process such as a trial may be taken into account, it would be imprudent to do so in a matter such as this. The mixing of established facts and unproven allegations contaminates the pool of material upon which the Court reaches its decision. If the allegations are subsequently found not proven, the extent of the reliance on the contaminated material may not be evident. [32] The statements made by the respondent to Dr Haeney are relevant to risk. These include statements such as “I’ve got to the point I want to stab someone or torture 41 [2019] SASC 1. 42 [2019] SASC 1 at [27]-[32]. 43 State of NSW v John Owen Conway [2011] NSWSC 976 (8 September 2011) at [35]. 44 See, for example, State of NSW v Thomas [2010] NSWSC 677 (24 June 2010) at [39] per Buddin J. -- 26 of 38 -- [2025] SASC 189 B Doyle J 23 them first” and “it might be worthwhile going back [to jail] for something fun, something I’ve wanted”. However their value to the Court is primarily as foundational to Dr Haeney’s assessment of the risk that Dr Haeney concluded the respondent presents. That risk exists, in Dr Haeney’s view, notwithstanding his agreement with the suggestion by counsel for the respondent that ZRV is boastful and has not acted on such threats. Similarly, Dr Haeney’s observations about the respondent are relevant to the assessment of risk but the individual statements do not constitute additional material for the Court’s assessment of risk; they are the foundations of the conclusion reached by Dr Haeney. 84 In Attorney-General (SA) v Symonds,45 Peek J referred to and agreed with paragraphs [27]-[29] of Hughes J’s reasons.46 85 Related issues were considered by McDonald J in Attorney-General (SA) v Annette (‘Annette’).47 The expert psychiatrist who had expressed an opinion about risk in that matter had referred in his report to an allegation of an aggravated assault causing harm charge that had not been proceeded with. 86 Her Honour referred to and expressed her agreement with the approach of Hughes J in paragraphs [27]-[29] (extracted above). McDonald J noted that the applicant in Annette placed reliance on paragraph [30] in V, ZR, and continued:48 It is suggested that this is authority for the proposition that a psychologist or a psychiatrist can rely upon unproven allegations in order to arrive at an opinion about whether someone satisfies the test set out under the HRO Act, to assist the Court in arriving at a decision about severely curtailing the liberty of an individual. As a matter of law and common sense, that cannot be so. 87 McDonald J went on to consider the NSW decision to which Hughes J had referred, noting that the use in the NSW decision by an expert of unproved allegations in a risk assessment in that case was different from that in issue in the case before her. Her Honour continued:49 I do not take the passage in the judgment of Hughes J in Attorney-General (SA) v V, ZR50 that counsel for the Attorney-General relied upon as any support for the proposition that a psychologist or psychiatrist can rely on unproven allegations in forming an opinion as to whether the individual under consideration poses a risk to the community. In my view, the fact that Mr Williams included a reference to this unproven allegation in his report does not call into question the opinion that he expressed. Although Mr Williams refers to the allegation when canvassing the respondent’s history, he makes clear from the outset that the charges did not proceed to court and then sets out both the narrative obtained from the complainant as contained in the apprehension report, as well as the respondent’s version of events. The section of the report concludes with “The Police Apprehension report notes apparent discrepancies in the victim’s report which called into question the veracity of her version of events”. At no point does Mr Williams purport to rely on this 45 [2021] SASC 145. 46 [2021] SASC 145 at [34]. 47 [2022] SASC 99. 48 [2022] SASC 99 at [40]. 49 [2022] SASC 99 at [45]-[46]. 50 [2019] SASC 1 at [30]. -- 27 of 38 -- [2025] SASC 189 B Doyle J 24 event as part of the basis for the opinions that he arrived at. In my view, the reference to the unproven allegations by Mr Williams in no way vitiates or undermines the ultimate opinion that he arrived at. 88 The respondent also referred to the observations made by Livesey J in Attorney-General (SA) v Fenner51 with reference to s 21 of the HRO Act. That section provides: 21—Inquiries by health professionals Where, for the purposes of an application for an extended supervision order, the Supreme Court directs 1 or more prescribed health professionals to examine the respondent to the application and report to the Court on the results of the examination, each prescribed health professional so nominated— (a) must carry out an independent personal examination of the respondent; and (b) may have access to any evidence before the court by which the respondent was convicted; and (c) may obtain the assistance of a medical practitioner, psychologist, social worker, community corrections officer or any other person. 89 His Honour observed:52 The obvious and clear purpose behind the enactment of s 21(b) is to ensure that a prescribed health professional has access to materials sufficient to enable the examination of a respondent at the request of the Court for the purposes of the Act. The Act envisages that the examination will aid the production of a report which will assist the Court’s assessment of risk. The materials on a criminal court file are, as is well known, governed by various rules concerning access, use and publication, including under s 131 of the Supreme Court Act 1935 (SA). As well, materials provided to a party in the course of criminal proceedings are subject to the implied undertaking that those materials will only be used for the purpose of those proceedings.53 Were an examiner given access to all available material there is some risk that it may refer to criminal conduct alleged against the respondent which has not been admitted or proved to have occurred. There is also the risk that an examiner may (unintentionally or otherwise) transgress an accused’s right to silence. To avoid the risk of these types of problems it is open to this Court to provide an appropriate direction that the prescribed health professional exercise caution when considering the available materials, particularly where they include material concerning unproven allegations. In the ordinary case, it is appropriate that an examination proceed, at least initially, by reference only to that which is specified in s 21 or which is otherwise admitted or proved. That will include the materials before the earlier sentencing court, including the psychiatric or psychological reports.54 If it is to be suggested that the requisite risk evaluation requires that other unadmitted or unproven matters be taken into account, and the parties cannot 51 [2020] SASC 107. 52 [2020] SASC 107 at [127]-[129]. 53 Hearne v Street (2008) 235 CLR 125 and Harman v Secretary of State for the Home Department [1983] 1 AC 280. 54 See Sentencing Act 2017 (SA), s 12 which permits a court for the purpose of determining sentence to inform itself of relevant matters as it thinks fit and without being bound by the rules of evidence. -- 28 of 38 -- [2025] SASC 189 B Doyle J 25 agree on the proper course to be taken, then the need for a supplementary report can be addressed before the Court. Consideration of the differing statutory contexts 90 There are a number of obvious differences between the regime considered by the Court of Appeal in GM and the regimes applicable under the Sentencing Act and the HRO Act. 91 Most obviously, whereas the former regime may see a person precluded from pursuing particular types of remunerative work, the latter regime may result in a serious deprivation of basic liberties by reason of the imposition of a supervision regime or by continuing, or even indefinite, detention. It is perhaps not surprising then that the ‘flexible’ approach has not been applied in the context of the indefinite detention of persons who have earlier been found guilty of criminal offending. 92 Turning to s 269UA(7) of the CLCA, whilst the outcome of a continuing supervision order under s 269UA(7) may result in a similar deprivation of liberty, it forms part of a regime applicable to persons who have been found not guilty of a criminal offence by reason of their mental incapacity. 93 In Chattaway v Minister for Health and Wellbeing (‘Chattaway’),55 Stanley J (with whom Kourakis CJ and Peek J agreed) described the scheme and purpose of Part 8A of the CLCA in these terms:56 Part 8A establishes, inter alia, a scheme of supervision for persons who are considered not criminally responsible for an offence under the criminal law owing to mental incompetence. It represents an important safeguard for vulnerable individuals charged with criminal offences. The purpose of Part 8A is to provide for the detention of, or release of, defendants who suffer a mental impairment.57 The safety of the community is the paramount consideration in determining whether to release a defendant, or the conditions of a licence to be imposed, and outweighs the principle that the restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum.58 The detention of a defendant is for the purpose of the protection of the community and his or her treatment and care.59 The principal statutory mechanism to achieve this objective is the making of supervisions orders. This is provided for by Part 8A Division 4.60 The purpose of the supervision order is not to penalise the defendant but to protect the public and to secure to the defendant such supervision and treatment as is available and appropriate.61 94 His Honour said that Part 8A Div 4 seeks to resolve the tension between making available to a defendant treatment and support while curtailing the 55 (2020) 136 SASR 347. 56 (2020) 136 SASR 347 at [21]. 57 R v Draoui [2008] SASC 188 at [44], (2008) 101 SASR 267 at 277. 58 Section 269NI. 59 R v Draoui [2008] SASC 188 at [68], (2008) 101 SASR 267 at 281. 60 Section 269MI-s 269VA 61 R v Draoui [2008] SASC 188 at [68], (2008) 101 SASR 267 at 281. -- 29 of 38 -- [2025] SASC 189 B Doyle J 26 defendant’s personal liberty only to the extent necessary to meet the paramount consideration of protecting community safety.62 He continued:63 The making of supervision orders and limiting terms avoids indeterminate detention and facilitates their prophylactic and remedial purposes.64 The policy of avoiding indeterminate detention of people in the applicant’s position is not addressed by s 269V. That object is addressed by s 269O, s 269P and s 269UC. 95 The Attorney-General contends that the Part 8A regime is distinguishable from the HRO Act regime with which the decisions in V, ZR and Annette were concerned. He further submits that to the extent those authorities might require that as yet unproven allegations can never be taken into account by a medical practitioner providing a report under the HRO Act, they were wrongly decided. 96 Some differences between the Part 8A Div 4 regime presently under consideration and other risk-based supervision and detention regimes may be noted. 97 First, whereas the making of an extended supervision order under the HRO Act requires demonstration that, absent supervision or detention, a person ‘poses an appreciable risk to the safety of the community’ under s 7(4), and a person subject to a continuing detention order under the Sentencing Act may be discharged from the order where the Court is satisfied the person ‘no longer presents an appreciable risk to the safety of the community’ under s 58(1a)(b), s 269UA(7) of the CLCA requires the imposition of a continuing supervision order if the defendant ‘could, if unsupervised, pose a serious risk to the safety of the community or a member of the community’. Whilst the posited risk (serious risk) may be more grave or pronounced than the risk upon which the other regimes turn (appreciable risk), the question in the context of s 269UA(7) is whether absent supervision the person could pose a risk of that kind. 98 Secondly, whereas s 269UA is engaged in respect of a person who has been found mentally incompetent to commit a particular offence, the regimes for extended supervision and continuing detention under Parts 2 and 3 respectively of the HRO Act and the regime for continuing detention under Division 5 of Part 3 of the Sentencing Act apply to persons who have been found guilty of both the conduct and fault elements of particular offences. 99 That difference needs to be borne in mind in considering a submission that a risk assessment in the context of s 269UA(7) of the CLCA is relevantly limited to facts found proved by the judge who dealt with the index offending. That is because, unlike in the context of the HRO Act or Sentencing Act regimes, there will have been no reason to find potentially aggravating circumstances for the purposes of imposing a sentence. Whilst a limiting term must be identified, that 62 (2020) 136 SASR 347 at [25]. 63 (2020) 136 SASR 347 at [25]. 64 R v Behari [2011] SASC 111 at [13], (2011) 110 SASR 147 at 150. -- 30 of 38 -- [2025] SASC 189 B Doyle J 27 may not require making findings of the kind that would be expected if the defendant were to be sentenced. 100 Focusing upon the role played by the expert whose opinion is required to be sought under the relevant regimes, the following differences may be noted: • whereas under the HRO Act and the Sentencing Act regimes the statute specifically contemplates that the health professional will make a risk assessment, s 269UA(4) of the CLCA does not in terms contemplate that the medical practitioner will express an opinion as to the risk that the defendant will pose to the safety of the community if unsupervised; • whereas, as has been seen, s 21 of the HRO Act makes specific provision about the material that may be provided to the expert, Part 8A makes no similar provision. 101 The fact that s 269UA(4) does not in terms require the medical practitioner to express a risk assessment, but instead contemplates an inquiry into the defendant’s ‘mental condition’ including ‘a diagnosis and prognosis of the condition’ and a ‘suggested treatment plan for managing the defendant’s condition’ reflects that a central concern of Part 8A is the appropriate treatment of persons who have been found to be mentally incompetent. 102 That is not to detract from the legislative concern for the safety of the community to which s 269UA(7) directs attention, but it is to recognise that whilst there are clear parallels and much common ground, the purposes and concerns of Part 8A differ subtly from the purposes and concerns of the HRO Act and the regime for indefinite detention under the Sentencing Act. 103 Focusing upon the role of the expert, with a view to deciding whether the Court should limit the material provided to them, the task to be undertaken by a qualified medical practitioner who is required by s 269UA(4) to inquire and report to the Court is different from that undertaken by a prescribed health practitioner required by s 7(3) of the HRO Act to examine and report to the Court. 104 Whilst s 7(3) of the HRO Act contemplates a report on the results of the professional’s ‘examination’ of the respondent, and is therefore potentially broad, it must include an assessment of the likelihood of the respondent committing a further offence of the relevant kind. That risk assessment is therefore likely to be the focus of the examination. 105 Section 269UA(4) of the CLCA contemplates a report on the mental condition of the defendant including a diagnosis and prognosis of the condition and a suggested treatment plan for managing the defendant’s condition. 106 Whilst that report may and often will provide very useful evidence that may inform the Court’s consideration of the ultimate issue of risk under s 269UA(7), its focus is on the defendant’s mental condition. The material that may bear on a -- 31 of 38 -- [2025] SASC 189 B Doyle J 28 medical practitioner’s inquiry into a defendant’s mental condition is of its nature likely to be broad. There may come a point where the volume of material provided to the practitioner obscures or impedes their task, but, putting such cases to one side, the practitioner may be expected to decide for themselves what material is of assistance to them in inquiring into the defendant’s diagnosis, prognosis and treatment plan. 107 It may be expected that the medical practitioner will be somewhat less focused on establishing the extent of past offending or misconduct given that an assessment of the risk of future offending is not the primary focus of their inquiry. However, in my view, excluding material relating to allegations of past offending or misconduct risks a less than complete inquiry into the person’s condition. It may distort (by omission) the chronology of events in a way that makes understanding the defendant’s mental condition more difficult. 108 An understanding of and some explanatory material about the fact of past allegations may be of relevance in a number of ways irrespective of the truth of the allegations, including that: • the fact of allegations having been made may form a material part of the narrative of the defendant’s custody status over recent times. It may explain why they have or have not been in the community, receiving treatment, or attending courses; • the fact of the allegations may prompt discussion between the medical practitioner and the defendant about the events in question which may lead to them being admitted, in part or in full (the facts of Driver, albeit in a different context, are instructive in that regard); and • the defendant’s response to the allegations may be revealing in other ways. It may reflect a level of insight and maturity, or it might prompt a reflection that, even though quite consistent with innocence, bears on the practitioner’s assessment of the defendant’s mental condition. 109 The material may therefore be relevant even if, on proper construction of s 269UA, it is not open to the Court to have regard to allegations of criminal wrongdoing that have not already been proved. Subject to the possibility that the material is of some particularly unusual and prejudicial kind so that it would inevitably risk impairing the independence of the practitioner, the considerations I have mentioned are sufficient to dissuade me from exercising the Court’s power to limit the provision of materials of that kind to the practitioner. It would be a rare case that allegations would risk causing an experienced independent medical practitioner to be distracted from conducting an objective assessment of the defendant’s mental condition. 110 It follows that it is not strictly necessary for me to consider whether I would follow the approach exemplified by the observations in V, ZR or Annette in the -- 32 of 38 -- [2025] SASC 189 B Doyle J 29 context of s 269UA, much less address whether those observations were erroneous in the context in which they were made. 111 I would, however, express the view that, at least in the context of making the assessment of risk contemplated by s 269UA(7) of the CLCA, there can be no absolute preclusion upon the Court considering and, if it is in a position to do so, making findings as to whether the defendant has engaged in conduct that would ordinarily amount to criminal conduct, but for which they have not yet been formally found guilty. 112 My reasons are as follows: • first, whether such conduct has been engaged in is intrinsically relevant to the risk assessment required by s 269UA(7); • secondly, the text of s 269UA(6)(b) appears to contemplate such an inquiry, in that it contemplates the Court considering the defendant’s ‘behaviour’, at least while under supervision. It would be strange if the Court could consider behaviour including criminal behaviour whilst the defendant has been under supervision, but not prior to that; • thirdly, whilst the reference in s 269UA(6)(f) to ‘antecedents’ could be taken to refer only to convictions, that paragraph also refers to the defendant’s ‘character’. Character will often be informed by an inquiry into conduct; • fourthly, allegations of criminal conduct may bear on the matters referred to in s 269UA(6)(e) and (g), and, in any case, s 269UA(h) empowers the Court to take into consideration any other matters that it thinks are relevant; • finally, a defendant in respect of whom a continuing supervision order has been made may not, by reason of a generally accepted view that they suffer or have suffered from mental incapacity, have been subjected to a trial in respect of particular allegations. It is therefore a surprising intention to attribute to the legislature that the question whether a defendant has engaged in conduct that would ordinarily be criminal cannot extend beyond a consideration of any formal findings of guilt that have been made. 113 I need not decide, at this juncture, whether a Court could only have regard to allegations of conduct of a criminal kind when assessing risk under s 269UA(7) if the allegations are found to have occurred on the balance of probabilities, perhaps with a Briginshaw overlay of a kind contemplated by the decision in Driver. Nor need I decide whether in this particular context, what I have described as the ‘flexible approach’ discussed in GM may sometimes be appropriate. In considering those issues, it might be relevant that in the context of the reliance upon a tendency to engage in criminal conduct as an intermediate fact circumstantially relevant to proof of guilt, the High Court has deprecated any universal requirement to find the tendency proved beyond reasonable doubt. It has -- 33 of 38 -- [2025] SASC 189 B Doyle J 30 also clarified that in deciding whether there is such a tendency, jurors need not confine their attention to charged or uncharged acts which they find proved beyond reasonable doubt.65 114 It is sufficient to conclude that there is no preclusion upon the Court inquiring into whether such conduct occurred simply by reason that there has been no previous finding by a court, tribunal or other adjudicative body about the conduct. 115 If that view is correct, it follows that for that additional reason, there can be no absolute preclusion upon the medical practitioner being informed of allegations that have not been found proved by a court or tribunal or, indeed, expressing an opinion that assumes that the allegations are true. 116 If an opinion in the report depends upon the truth of that assumption, the opinion will only be admissible, or at least will only carry weight, if the assumption is ultimately proved. But that will be a matter for the Attorney-General to consider and address at the ultimate hearing. 117 Having made these general observations, and recognising the great variety of factual scenarios that may be presented by defendants who are being dealt with under Part 8A, there may be particular situations where material should not be provided to the medical practitioner, for instance where an allegation has not been proceeded with because prosecuting authorities formed the view that the allegation or charge was without substance. To the extent necessary to explain a period of custody associated with the charge, the practitioner could be informed of the bare fact of an allegation having been made. 118 As well, in the case of pending charges, it is to be expected that the practitioner would be circumspect in questioning a defendant about the alleged circumstances so as not to impinge on the defendant’s right to silence. Equally, on the ultimate hearing, where there is a risk that embarking on a process of fact finding about a pending charge would cause prejudice to the conduct of the defence of that charge, and by analogy with the jurisdiction to temporarily stay civil proceedings where required by the interests of justice,66 the Court may have to adapt its procedures or approach so as not to allow the application for a continuing detention order to operate oppressively vis-à-vis the defendant. 119 In some cases the appropriate course may be to defer hearing the application. In others, recognising that s 269UA(2) will see the limiting term extended until the hearing occurs, the appropriate course might be to consider the application on a more limited basis. Of course, a finding that conduct the subject of a pending charge occurred would create no issue estoppel and would have no particular status 65 Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18. 66 cf. Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46 at [35] (French CJ, Hayne, Kiefel, Bell and Keane JJ). -- 34 of 38 -- [2025] SASC 189 B Doyle J 31 in a later criminal trial.67 It is the risk that an inquiry into whether the conduct occurred, with the defendant facing the possibility of a continuing supervision order if he decides not to contest the conduct, that may be the source of prejudice. Where there is no risk of such prejudice, it might be appropriate to proceed to determine the question irrespective of the fact of pending charges. 120 Finally, there is the question of the application of the rules of evidence at the ultimate hearing of the matter. As I have indicated, subject to any modifications provided for expressly or by implication in the legislative scheme, the rules of evidence apply to the ultimate hearing of this matter. 121 Subject to the position adopted by the defendant at any ultimate hearing, it may be that much of the material contained in the affidavits typically sworn in support of applications under s 269UA and indeed in the HRO Act or other regimes would not be received into evidence over objection. But that does not mean the documents may not be given to a medical practitioner as a convenient identification of the substance of the matters that may, if it becomes necessary and relevant to do so, be proved by other means at the hearing. 122 Some of the documents may ultimately be admissible on various grounds. The Evidence Act 1929 (SA) contains a range of provisions that may see hearsay evidence contained in documents received into evidence. As well, s 59J(1) of that Act authorises a court at any stage of a proceeding to dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute or to dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay. Consideration of the objections 123 Against the background of these general observations I turn to the categories of objections set out earlier. Materials relating to 2023 conduct that go beyond judicial officer’s remarks 124 Exhibits BG-38, 39 and 40 comprise the facts of charge and the affidavits of the victim and another witness in respect of the 2023 conduct which may be described as the index offending. 125 To a large extent, the content of these documents go beyond the remarks the magistrate made when fixing a limiting term. Those remarks said virtually nothing about the circumstances of the offending. That may not be uncommon where there is no contest as to the physical elements of the offence, and where the focus is on the period of supervision that would have been imposed in the ordinary course. It 67 Indeed, considering the converse situation, no res judicata, issue estoppel, doctrine of autrefois acquit or other rule of law prevents examination of conduct the subject of an acquittal in disciplinary proceedings, though, in that context, again, Briginshaw principles are engaged: see, eg, the discussion in Teachers Registration Board of South Australia v Kourlas [2025] SASCA 13 at [53]-[56] (Livesey P, Bleby JA and Hall AJA), and the reference thereto to the observations in Jackson (formerly Subramanian) v Legal Practitioners Admissions Board [2007] NSWCA 289 at [34]-[35]). -- 35 of 38 -- [2025] SASC 189 B Doyle J 32 tends to illustrate why it would be artificial to limit either the Court’s ultimate consideration or the medical practitioner’s inquiry by excluding materials of this kind. 126 In many cases, an inquiry into the facts beyond those expressly mentioned in the judicial officer’s remarks may be to the advantage of the defendant. They may identify a particular context which it can be seen is unlikely to be encountered again or in respect of which the defendant has received treatment or counselling. Equally they may reveal circumstances which provide insight into the defendant’s mental condition, though they may not have been particularly germane to the judicial officer’s task. 127 Particular or even incidental details of the underlying conduct, which do not bear either on sentencing or fixing a limiting term, may be of significance to a forensic psychiatrist or other specialist seeking to understand the defendant’s mental condition. 128 As always, there may be exceptions. For instance, witness statements may contain particular propositions that were agreed not to form part of the agreed basis upon which the judicial officer was to deal with the matter.68 But no specific submission to that effect was made here. 129 There is no reason why I should direct that the medical practitioner not be provided with the materials. Materials relating to other conduct that has resulted in conviction or a finding of not guilty by reason of mental incompetence 130 Exhibits BG-22, 23 and 24 comprise the apprehension report and two witness affidavits concerning the February 2018 conduct in respect of which the respondent was found not guilty by reason of mental incompetence pursuant to Part 8A of the CLCA. 131 I have not been provided with any remarks made by a judicial officer in respect of that conduct, although I am informed by the respondent that the respondent was committed to detention for three months pursuant to s 269O(1)(b)(i). On the assumption that the materials go beyond those remarks, I take the same view in respect of this material as I did in relation to the material concerning the index offending. Apprehension reports may often contain material that does not form part of the facts of charge or any witness’ sworn evidence but there were no specific submissions made about the apprehension report in question that cause me to perceive any particular problem arising from its provision to a medical practitioner. 68 This situation was adverted to by McDonald J in Attorney-General (SA) v Kamara [2024] SASC 155 at [33]-[34]. -- 36 of 38 -- [2025] SASC 189 B Doyle J 33 132 Exhibits BG-28, 29 and 30 comprise the apprehension report and two witness statements in respect of the November 2018 conduct. The respondent was convicted. I have not been provided with the sentencing remarks but I see no reason why the medical practitioner should not be provided with these materials. 133 Exhibits BG-31 and 32 comprise the facts of charge and a witness statement concerning the June 2022 conduct. The respondent was discharged without penalty. How relevant this conduct is to the medical practitioner’s ultimate assessment may be doubted, but I see no obvious difficulty in the practitioner being provided with the material. 134 I take the same view with respect to Exhibits BG-33, 34, 35, 36 and 37, comprising the facts of charge and several witness statements concerning the October 2022 conduct. 135 Exhibit BG-43 is the facts of charge relating to the December 2023 conduct which involved possession of equipment for use with a controlled drug. The respondent was found not guilty by reason of mental incompetence. The factual allegations may well inform an assessment of the respondent’s mental condition. I see no impediment to the practitioner being provided with that material. Materials relating to withdrawn allegations or charges 136 BG-25, 26 and 27 comprise the apprehension report, victim’s witness statement and charge discontinuation notice respecting the August 2018 conduct. As has been mentioned, the charge was not proceeded with, effectively on the basis that accidental contact was a live issue and there was not a sufficient prospect of achieving a conviction. Having regard to the timing of this incident, it may be doubted whether it will have a material bearing on the medical practitioner’s inquiry. But it forms part of the relevant history and given the way in which the medical practitioner has been briefed, it is to be expected that they will explain the extent to which this allegation has affected their opinion. 137 If acceptance of the truth of the allegation is material to the opinion expressed, the Attorney-General will have to give consideration to proof of the allegation. It may be that there are the same difficulties in proving the allegations on balance as there were perceived to be according to the criminal standard. But that is a question for another day. 138 Exhibits BG-41 and 42 concern the February 2024 conduct which, as has been observed, did not proceed to trial in circumstances where the alleged victim was content not to proceed because the respondent was ‘family’ and there was an intervention order in place. The conduct in question may well be of significance to the medical practitioner’s inquiry into the respondent’s medical condition. If and to the extent that it is, the report should, given the letter of instruction, make that clear. It may be that the facts are not contested. If they are (or are not admitted), the Attorney-General will have to consider what proof may be offered. -- 37 of 38 -- [2025] SASC 189 B Doyle J 34 Materials relating to breaches found by Parole Board 139 BG-17 appears to relate to the February 2024 conduct, which has been addressed above. BG-18 relates to non-attendance for a depot injection. The underlying circumstances may be relevant to the medical practitioner’s inquiry. If the underlying facts are contested but important to any opinion expressed, the question of proof will be for another day. Unproven matters in Department of Correctional Services progress report 140 Exhibit BG-19 is a ‘3 month progress report’ to the Parole Board from a Department of Correctional Services officer. The objection is to the parts of the report that refer to unproven allegations. In my view there is no difficulty with the medical practitioner being provided with the allegations. If they matter to the opinion, and if they are controversial as a matter of fact, the question of proof will need to be attended to. Miscellaneous objections 141 The objections to Exhibits BG-01 and BG-04 concerned the repetitive or ‘verbose’ nature of the documents. I understand the concern that the volume of material provided to experts can be a burden for experts and advocates alike, but I reject the objection. 142 The objection to BG-03, which comprises an ‘Offender History Summary Report’, is on the basis that there are other means by which previous convictions can be proved. There may be, but this is an insufficient reason to direct that the document not be provided to the medical practitioner. That it may record unproved allegations is not fatal to its consideration by the medical practitioner. Disposition 143 To the extent that the application seeks a direction that particular materials not be provided to the medical practitioner, I refuse the application. 144 To the extent that objection is taken to reliance upon particular documents at any ultimate hearing, I consider the application, or at least the disposition of it, to be premature. -- 38 of 38 --