ATTORNEY-GENERAL (SA) v CRAIG GOGEL [2025] SASC 193

Applicant: ATTORNEY-GENERAL (SA) Counsel: MR W SCOBIE - Solicitor: CROWN SOLICITOR (SA) Respondent: CRAIG GOGEL Counsel: MR T BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 11/09/2025 File No/s: SCCRM-25-031830 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 GOGEL [2025] SASC 193 Reasons for Decision of the Honourable Justice B Doyle 25 November 2025 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - BASIS OF OPINION The respondent is a high risk offender within the meaning of s 5 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). In 2023 he was sentenced to a term of imprisonment for committing an aggravated assault. On 4 September 2024, the respondent was made the subject of an extended supervision order under the HRO Act for a period of one year (‘first ESO’). On 8 August 2025, the applicant sought the imposition of a second extended supervision order (‘second ESO’). The application was supported by an affidavit of a solicitor annexing various materials (‘the supporting affidavit’). On 3 September 2025, an interim supervision order was made in respect of the respondent under s 9(1) of the HRO Act, and a judge directed that one or more prescribed health professionals examine the respondent and report to the Court with an assessment of whether there is a likelihood of the respondent committing a further offence of violence. By interlocutory application dated 5 September 2025, the respondent seeks an order that certain identified documents (or portions of documents) annexed to the supporting affidavit not be provided to the health professional conducting the assessment and that those documents not be permitted to be relied upon at the hearing of the second ESO application. Held, dismissing the application: 1. the materials are capable of informing the prescribed health practitioner’s examination of the respondent; -- 1 of 14 -- 2. the risk that a prescribed health professional would be improperly influenced by being provided with the materials is insufficient to direct that the materials not be provided. Expert witnesses who are members of a profession can generally be expected (by reason of their training and ethical obligations) to be astute to the importance of exercising independent judgement when forming and expressing their opinions. Correctional Services Act 1982 (SA) s 64; Criminal Law Consolidation Act 1935 (SA) ss 23(3), 269UA; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 21; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31, referred to. Attorney-General (SA) v Annette [2022] SASC 99; Attorney-General (SA) v Fenner [2020] SASC 107; Attorney-General (SA) v Rowe [2025] SASC 189; Attorney-General (SA) v Symonds [2021] SASC 145; Attorney-General (SA) v V, ZR [2019] SASC 1; Attorney-General (SA) v Williams [2025] SASC 164; Benbrika v Attorney-General (Cth) (2024) 74 VR 379; Director of Public Prosecutions (WA) v GTR [2007] WASC 318; Director of Public Prosecutions (WA) v Mangolamara (2007) 169 A Crim R 379, discussed. -- 2 of 14 -- ATTORNEY-GENERAL (SA) v GOGEL [2025] SASC 193 Criminal: application 1 B DOYLE J: On 4 September 2024, the respondent was made the subject of an extended supervision order under the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’) for a period of one year (‘first ESO’). 2 The order took effect on the expiry of the respondent’s term of imprisonment for an aggravated assault committed in 2021.1 The respondent drove a vehicle on the wrong side of the road alongside a former partner, causing her great anxiety and distress. That conduct also involved the contravention of an intervention order.2 3 By application made on 8 August 2025, the applicant seeks the imposition of a second extended supervision order (‘second ESO’). The application was supported by an affidavit affirmed by Mr William Scobie which in turn annexed various materials (‘the supporting affidavit’). The supporting affidavit disclosed that during the term of the first ESO, the respondent returned a number of positive drug tests. 4 It was not possible to determine the second ESO application before the first ESO expired. On 3 September 2025, an interim supervision order was made by this Court. As contemplated by s 7(3) of the HRO Act, the Court directed that one or more prescribed health professionals examine the respondent and report to the Court with an assessment of whether there is a likelihood of the respondent committing a further offence of violence. 5 By interlocutory application made on 5 September 2025, the respondent seeks an order that particular documents (or portions of documents) annexed to the supporting affidavit not be provided to the health professional who is to conduct the assessment and that those documents not be permitted to be relied upon at the hearing of the second ESO application. 6 At the hearing of the application and by reason of material received after the hearing, the dispute about the documents to be provided to the health professional has narrowed. 7 In particular, it is not necessary to resolve the respondent’s objection to documents that disclose allegations of serious or criminal misconduct on the part of the respondent which have not been found proved. That is because, without conceding that it may not be appropriate in some cases for the health professional, or indeed the Court, to act on such material, the applicant has indicated that such 1 Criminal Law Consolidation Act 1935 (SA), s 20(3)(b). 2 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 31(2). -- 3 of 14 -- [2025] SASC 193 B Doyle J 2 material will not be relied upon in the present case, and can be removed from the material to be provided to the health professional. 8 Further, to the extent that the materials include reference to the results of standardised risk assessment tools in respect of the respondent, the applicant has agreed that the health professional not be provided with the results of the ‘LSI-R:SV’ test and, in respect of the Ontario Domestic Abuse Risk Assessment (‘ODARA’) results, the applicant accepts that the relevance of the results is confined to explaining the basis upon which the respondent has been considered appropriate to participate in particular programs. 9 The contentious items of evidence are: (1) a Department of Correctional Services (‘DCS’) document styled ‘High Risk Offender Review – ESO consideration’ dated 28 December 20233 and a DCS document styled ‘Individual Development Plan’ dated 29 December 2023.4 The objection is that the documents were prepared for a purpose that is foreign to the inquiry to be undertaken by the Court, and that they contain, in part, what are said to be inadmissible risk analysis opinions; (2) a report of Dr Owen Haeney, Consultant Forensic Psychiatrist, James Nash House, dated 27 July 2024, prepared for the purposes of the first ESO;5 (3) a portion of the Post Treatment Report prepared by DCS Intervention Worker, Ms Wutke, following the respondent’s participation in the Domestic & Family Violence Intervention Program (‘DFVIP’).6 The portions objected to record or summarise the outcome of risk assessments7 and express a conclusion or opinion as to the respondent’s future needs;8 (4) a portion of an ESO Progress Report dated 30 May 2025 prepared for DCS’s Serious Offender Committee and the Parole Board.9 The portion objected to records or summarises the outcome of risk assessments;10 and (5) a report from the Parole Board dated 18 July 202511 and a transcript of the respondent’s interview with the Parole Board on 11 March 2025.12 3 Supporting affidavit, pp 31-36. 4 Supporting affidavit, pp 37-42. 5 Supporting affidavit, pp 51-68. 6 Supporting affidavit, pp 70-78. 7 Supporting affidavit, p 76.27 – p 77.7. 8 Supporting affidavit, p 77.31 – p 78.6. 9 Supporting affidavit, pp 79-84. 10 Supporting affidavit, p 82 (fourth paragraph). 11 Supporting affidavit, p 89. 12 Supporting affidavit, pp 91-102. -- 4 of 14 -- [2025] SASC 193 B Doyle J 3 The legislative context 10 In Attorney-General (SA) v Williams,13 the legislative context in which a health professional is directed to examine and report, and the ultimate task in which a Court must engage in deciding whether to make an extended supervision order, was summarised in these terms:14 The object of the HRO Act is set out in s 3. It is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by various serious offenders. Section 9(1) of the HRO Act empowers the Supreme Court to make an interim supervision order in relation to a high risk offender if an application has been made for an extended supervision order and the Court is satisfied that the ‘relevant expiry date’ is likely to occur before the application is determined or has already occurred and that ‘the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order’. The Court cannot determine the application for an extended supervision order unless it has directed that one or more prescribed health professionals examine the respondent and report to the Court on the results of the examination, including, in the case of a serious sexual offender, an assessment of the likelihood of the respondent committing a further serious sexual offence.15 The report, once furnished, must be considered in determining whether to make an extended supervision order.16 Reports of that kind take some time to be prepared. An interim supervision order is, as its name suggests, designed to operate on an interim basis until the application for an extended supervision order is able to be determined.17 The interim order remains in effect until that occurs.18 Section 7(4) provides that the Court may make an extended supervision order if satisfied of two jurisdictional facts:19 first, that the respondent is a ‘high risk offender’; and, secondly, that the … respondent ‘poses an appreciable risk to the safety of the community if not supervised under the order’. An ‘appreciable risk’ is one that is capable of being estimated, perceptible and sensible. It is anticipatory but not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in the future in a manner that poses a risk to the safety of the community.20 The concept of an ‘appreciable risk’ is deployed later in the HRO Act as the touchstone for the imposition of a continuing detention order.21 13 [2025] SASC 164. 14 [2025] SASC 164 at [47]-[56]. 15 HRO Act, s 7(3). 16 HRO Act, s 7(6)(b). 17 Attorney-General (SA) v Jeffery [2018] SASC 1 at [3] (Hinton J). 18 HRO Act, s 9(2). 19 Attorney-General (SA) v Fenner [2020] SASC 107 at [16] (Livesey J), Attorney-General (SA) v Gillard [2022] SASC 104 at [4] (Kimber J). 20 Attorney-General (SA) v Grosser [2016] SASC 49 at [20] (Stanley J). 21 HRO Act, s 18(2)(b). Where a person the subject of an order under s 57 of the Sentencing Act 2017 (SA) demonstrates that by reason of their advanced age or permanent infirmity, they no longer present -- 5 of 14 -- [2025] SASC 193 B Doyle J 4 For the purposes of an extended supervision order, the appreciable risk is one that must be posed by the respondent ‘if they are not supervised by an extended supervision order’. Accordingly, if there are other protections applicable to the respondent which, on a stable and continuing basis,22 sufficiently mitigate what might otherwise be an appreciable risk, the jurisdictional criterion may not be satisfied.23 If there is an appreciable risk to the safety of the community if the respondent is not supervised under an order, the Court must decide whether to make the order. Whilst satisfaction of the jurisdictional requirements in s 7(4)(a) and (b) will often warrant the Court making the order and fashioning conditions intended to achieve the Act’s object as set out in s 3, there remains a discretion to be exercised.24 The Attorney-General carries the onus in establishing both the jurisdictional requirements and the appropriateness of the exercise of the power.25 In determining whether to make the order, the Court must have regard to the matters in s 7(6), but s 7(5) requires that ‘the paramount consideration in determining whether to make an extended supervision order must be the safety of the community’.26 A paramount consideration is not, however, always a conclusive consideration.27 The matters identified in s 7(6) may inform both the jurisdictional requirements in s 7(4) and the exercise of the discretion conferred by that sub-section. They are: (a) the likelihood of the respondent committing offences of a kind assessed under subsection (3)(a), (b), (c) or (d) (as the case may be) if not supervised under the order; (b) the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court; (c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982; (d) any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons an ‘appreciable risk to the safety of the community’, this enlivens a power in the Court to discharge the order or release the person on licence: ss 58 and 59 of the Sentencing Act 2017 (SA). 22 cf. Attorney-General (SA) v McCann [2023] SASC 5 at [53] (McDonald J). 23 Attorney-General (SA) v Karpany [2020] SASC 219 at [19] (Livesey J). 24 Attorney-General (SA) v Wells [2017] SASC 149 at [8] (Hinton J), Attorney-General (SA) v Fenner [2020] SASC 107 at [15]-[16] (Livesey J), Attorney-General (SA) v Humes [2020] SASC 123 at [51] (Livesey J). 25 Attorney-General (SA) v Wells [2017] SASC 149 at [9] (Hinton J), Attorney-General (SA) v Fenner [2020] SASC 107 at [16] (Livesey J). 26 In Attorney-General (SA) v Grosser [2016] SASC 49 at [29], Stanley J said that the extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. In my respectful view, it is unclear that the observation was intended to suggest that s 7(5) directly informs the content of ‘appreciable risk’ in s 7(4)(b), as distinct from whether the appreciable risk in a particular case warrants the making of an order: cf. Attorney-General (SA) v Fenner [2020] SASC 107 at [19] (Livesey J). The manner in which s 7(5) is expressed suggests to me that it is germane to the weighing of competing considerations in the exercise of a discretion, rather than to ascertaining the content of an objective (albeit imprecise) standard. 27 Attorney-General (SA) v Tipping [2019] SASC 7 at [8] (Kourakis CJ). See, in the context of the former provisions concerning indefinite detention under the Criminal Law (Sentencing) Act 1988 (SA), the observations in R v Schuster (2016) 125 SASR 388 at [80] (Kourakis CJ, Blue and Doyle JJ), R v Humphrys [2018] SASCFC 69 at [15] (Kourakis CJ, Vanstone and Nicholson JJ agreeing). -- 6 of 14 -- [2025] SASC 193 B Doyle J 5 with histories and characteristics similar to those of the respondent committing a further relevant offence); (e) any relevant evidence or representations that the respondent may desire to put to the Court; (f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation; (g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole; (h) in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order; (i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act; (j) the circumstances and seriousness of any offence 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; (k) any remarks made by the sentencing court in passing sentence; (l) any other matter that the Court thinks relevant. 11 The Court must direct an examination and the preparation of a report by a prescribed health professional before determining whether to make an extended supervision order and the report, once furnished, forms part of the material that must be considered. 12 Section 21 of the HRO Act provides that: 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. -- 7 of 14 -- [2025] SASC 193 B Doyle J 6 13 In Attorney-General (SA) v Fenner,28 Livesey J observed:29 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.30 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.31 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 agree on the proper course to be taken, then the need for a supplementary report can be addressed before the Court. 14 Since those observations were made, the number of applications under the HRO Act has steadily increased. The demands upon the forensic psychiatrists who are able to undertake the required examinations and prepare the required reports are significant. It can be up to six months, and sometimes longer, between the Court’s direction and the finalisation of a report. 15 This may militate against a two-step reporting process, particularly if the respondent will be subject to an interim supervision order until the extended supervision order application is determined. 16 For the reasons I gave in the context of a report required to be ordered under s 269UA of the Criminal Law Consolidation Act 1935 (SA) in Attorney-General (SA) v Rowe,32 the Court has power, in an appropriate case, to superintend that process, either as part and parcel of the power to ‘direct’ the inquiry and report in the first place, or in the exercise of other powers that the Court has to control and manage its own processes. 28 [2020] SASC 107. 29 [2020] SASC 107 at [127]-[129]. 30 Hearne v Street (2008) 235 CLR 125 and Harman v Secretary of State for the Home Department [1983] 1 AC 280. 31 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. 32 [2025] SASC 189 at [46]-[52]. -- 8 of 14 -- [2025] SASC 193 B Doyle J 7 Unproven allegations 17 The respondent objected to the health professional being provided with details of unproven allegations of what would amount to criminal conduct. 18 The applicant’s position was that whilst unproven allegations might legitimately form a part of an assessment of risk in a particular case, the applicant was content not to rely on allegations of that kind in the present case. 19 Where charges are pending, or where a charge has been pursued but has resulted in an acquittal, it may be unfair or otherwise inappropriate for a Court to make a finding, on an application for an extended supervision order, that the conduct the subject of the charge occurred. Further, I acknowledge that s 7(6)(j) of the HRO Act directs attention to the circumstances of offences in respect of which the respondent has already been found guilty. However, the proposition that a Court tasked with assessing the matters identified in ss 7(4) and 7(6), and whose task is governed by the paramount consideration of community safety in s 7(5), may never inquire into whether, or make a finding that, the respondent engaged in conduct of a criminal nature (not the subject of an extant conviction) seems, to my mind, too wide. 20 However, in view of the applicant’s position, I need not decide that issue, nor the related questions about the standard against which any such allegation would need to be proved before it may inform the Court’s assessment of risk, nor the impact upon these issues of the authorities I canvassed in Attorney-General (SA) v Rowe.33 Risk assessment results 21 The respondent objected to the references in various DCS reports to the outcome of risk assessments undertaken in respect of him. The respondent’s counsel emphasised that risk assessments of this kind are prepared for a purpose which is foreign to that in which the Court or the health professional is engaged. 22 The respondent further contends that the basis for the testing is not apparent, and consequently, experts cannot be questioned about their reliability. He submits that there are too many unknowns about how the testing works and it cannot be known whether the results are suitable for a particular cohort of offenders, or for a particular individual. The respondent drew attention to observations about the limits of particular risk assessment tools in Director of Public Prosecutions (WA) v Mangolamara,34 Director of Public Prosecutions (WA) v GTR35 and Benbrika v Attorney-General (Cth).36 33 [2025] SASC 189 at [76]-[89]. 34 (2007) 169 A Crim R 379; [2007] WASC 71 at [68]-[71] (Hasluck J). 35 [2007] WASC 318 at [97]-[113] (McKechnie J). 36 (2024) 74 VR 379 at [100]-[124] (Hollingworth J). -- 9 of 14 -- [2025] SASC 193 B Doyle J 8 23 The respondent contends that the outcome of the testing is also potentially prejudicial in that it may affect the expert’s thinking in a way that cannot be readily identified or exposed. 24 The applicant submitted that it is not clear that the risk assessment results actually involve the expression of any opinion, as distinct from the output of a standardised test or tool. In support of that submission, the applicant sought permission to adduce further affidavit evidence. 25 Ms Jade Campbell, a Senior Clinician within the Rehabilitation Programs Branch of the Department for Correctional Services, affirmed an affidavit in which she gave an explanation of the ODARA and its use by the Department. 26 She explained in her affidavit that: • there is an extensive body of scientific literature to demonstrate the value of risk assessment tools in quantifying the risk that an individual domestic violence perpetrator will reoffend, and a number of large reviews have shown these tools in general to be more effective at determining an individual’s risk than clinical judgment alone; • the ODARA is a widely-validated tool to indicate the risk of reoffending by domestic violence offenders. It was developed by researchers who used a large database of known domestic violence offenders and information about them on a range of variables thought to have some relationship with domestic violence reoffending. From a large set of variables, researchers were able to identify a final set of 13 variables that all, both individually and collectively, helped to predict which of the offenders committed another domestic violence assault within the next five years. These variables are employed in the ODARA tool; • the ODARA is a static risk assessment that does not require the clinician to have an interview with either the subject or any victim and is undertaken based upon existing records; • within the Rehabilitation Programs Branch and the Sentence Management Unit, clinicians are trained in the administration of the ODARA; • when an Individual Development Plan is being considered in respect of a person with a record of domestic violence offending, an ODARA is conducted to ascertain suitability for referral to the DFVIP; • in the respondent’s case, an experienced assessment clinician undertook the ODARA. 27 The affidavit also explains that there is considerable international research, and supporting evidence from Australia, that, in addition to being less likely than many offence types to be brought to the attention of police, domestic violence -- 10 of 14 -- [2025] SASC 193 B Doyle J 9 incidents are particularly unlikely to result in a criminal conviction. That is for reasons including, but not limited to, the reluctance of victims to appear as a witness in court proceedings due to fears for their or their children’s safety. The affidavit goes on to say:37 Therefore, although using police reports may slightly over-state an individual’s prior offending (as some alleged offences may not subsequently be proven), using only convictions is highly likely to under-state their offending history. Where there is risk of serious harm to past or future partners or other family members, it is prudent to take as much available information into consideration as possible when assessing risk. This method is consistent with the method for scoring the relevant ODARA items (by using police reports rather than convictions), which is supported by considerable evidence, as outlined above. 28 After this affidavit evidence was provided, without conceding that an ODARA might not, in some cases, appropriately be relied upon as supportive of an ultimate conclusion of risk by the Court or by a health professional, the applicant proposed that its use in this case was limited to providing background information that would be provided to the health professional (together with the explanation in Ms Campbell’s affidavit) to assist the professional in understanding the treatment recommendations that have been made in respect of this respondent. 29 The applicant does not propose to rely on the ODARA results, or to set about proving the inputs or methodology in more detail, as probative of the risk of reoffending. It is not necessary to consider whether and to what extent it may ever be appropriate to have regard to the outcome of an ODARA for that purpose, nor to address observations made in the authorities to which I have referred, in the context of different statutory schemes. It is also unnecessary to consider and address the observations made in Attorney-General (SA) v V, ZR38 and Attorney-General (SA) v Annette.39 Nor is it necessary to consider how s 7(6)(d) of the HRO Act may impact on those issues when the statistical assessment does not form part of a report requested by the Court under s 20. 30 The question is whether the more limited use proposed to be made of the ODARA in this case (namely, to provide background to the treatment recommendations made) is problematic, on the basis that it risks compromising the independence of the health professional’s opinions. 31 An example of a passage to which objection is taken is the following reference to an ODARA in an ‘Individual Development Plan’ (with [##] denoting redacted text):40 Ontario Domestic Abuse Risk Assessment: [##] 37 Affidavit of Jade Campbell dated 8 October 2025 (FDN 16) at [8]. 38 [2019] SASC 1 at [30] (Hughes J). See also Attorney-General (SA) v Symonds [2021] SASC 145 at [33]-[34] (Peek J). 39 [2022] SASC 99 at [45]-[46] (McDonald J). 40 Supporting affidavit, p 41. -- 11 of 14 -- [2025] SASC 193 B Doyle J 10 An ODARA was conducted on 02/06/2022 for Mr Gogel which returned a raw score of [##], and a final score of [##], placing him in the [##]% of domestic violence offenders who recidivate. Mr Gogel was considered to be a high harm perpetrator who was at an elevated risk/ likelihood of using high impact or potentially lethal domestic and family violence in the future. Mr Gogel was therefore considered suitable for inclusion in the Domestic and Family Violence Intervention Program (DVIP). 32 In my view, the risk of influence associated with material such as this is an insufficient basis to direct that it be excised from the brief to the health professional. 33 First, expert witnesses who are members of a profession can generally be expected by reason of their training and ethical obligations to be astute to the importance of exercising independent judgement when forming and expressing their opinions, and I consider that experts working in the field of forensic mental health are relatively unlikely to be swayed by being informed of risk assessment tools, the limitations of which are likely to be apparent to them. If there is a concern about independence it can ultimately be explored in cross-examination. 34 Secondly, the legislation itself contemplates that health professionals may obtain the assistance of others without their independence being compromised. The structure of s 21 of the HRO Act makes that clear. 35 On the basis that the applicant will make clear in briefing the expert that the material is not being provided for the purpose of the expert or the Court relying upon it in forming an ultimate assessment of risk, I decline to direct that the references in the reports to the carrying out of an ODARA in respect of the respondent be removed. The applicant has agreed to remove references to the LSI-R:SV assessment. Opinions contained in DCS reports 36 The respondent’s counsel submits that although s 7(6)(b) of the HRO Act contemplates that the Court will have regard to the prescribed health professional’s report, the same cannot be said of opinion evidence contained in a report by an officer of DCS. It is submitted that DCS officers are not independent witnesses of a kind who can ordinarily give opinion evidence, and that their reports do not otherwise comply with the rules for expert evidence. 37 The respondent submits that such opinions cannot be acted upon by the Court when determining whether to impose an extended supervision order, and that there is accordingly no justification for their provision to the prescribed health professional as it runs the risk of contaminating their examination and independent report. 38 In this context, in the course of argument, the respondent (in my view correctly) accepted that s 21(c) of the HRO Act meant that the health professional could, after interviewing a person, seek and have regard to the opinion of a DCS officer or report writer. -- 12 of 14 -- [2025] SASC 193 B Doyle J 11 39 Once that is accepted, it becomes difficult to see that there should be any more general restriction upon health professionals being informed, as part of the materials summarising the treatment that a person has or has not received, of the opinions of DCS staff about that person’s suitability for treatment, the quality of their participation in the treatment, and their views as to other treatment or measures that may be appropriate. Such opinions are likely to provide helpful context for an expert, or may be hard to disentangle from information that may provide helpful context. 40 It is unlikely that a health professional’s ultimate opinion will critically depend upon the accuracy of such material. However, if that is the case, it should be apparent from the professional’s report. In such a case, the health professional’s opinion may be unable to be acted upon if the opinion of the DCS officer (or the basis for it) is not able to be established by admissible evidence. 41 I am not persuaded that any of the contested material should be excised from the proposed brief to the health professional in this case on the basis that it comprises or discloses opinions formed by DCS officers. Earlier section 7 reports 42 The respondent did not resist the proposition that the Court can consider an earlier report prepared in anticipation of a determination whether to make an ESO. The respondent’s submission was that it would impair the independence of the report writer to be provided with that material. 43 In my view, that is an insufficient basis upon which to direct that the health professional not be provided with any previous report prepared for the purposes of an earlier ESO determination. 44 I reach that conclusion because: • generally speaking, independence goes to weight rather than admissibility; • forensic psychiatrists are accustomed to, and experienced in, reviewing the reports of other clinicians who have assessed the person about whom they are to form an opinion, and can be expected to be practiced at maintaining their own independence whilst deriving assistance from the opinions of others where appropriate; • a particularly relevant consideration when a second or subsequent ESO is being considered is whether there has been progress in relation to dynamic risk factors, and a comparison with an earlier assessment of that matter may be probative of that question; • there is no express preclusion in the HRO Act upon the health professional who prepared the first ESO report being briefed to provide a second or subsequent ESO report. In that situation, they would plainly be expected to -- 13 of 14 -- [2025] SASC 193 B Doyle J 12 have regard to their earlier assessment, at least for the purposes of examining any progress that has been made by the respondent. It would be surprising if a different position applied where the report writers are different. Parole Board report and transcript 45 The respondent objects to the health professional being provided with the Parole Board’s report of 18 July 2025 in which the Deputy Presiding Member wrote:41 It is abundantly plain that Mr Gogel has struggled to remain drug free during his current order. His mental health fluctuates, and he remains at high risk of domestic violence related offending with an elevated risk of using high impact or lethal violence in the future. The Parole Board would support an extension of his Extended Supervision Order for a period of 18 months. The Board suggests electronic monitoring with freedom of movement be [sic] imposed as a condition. 46 This report is of a kind contemplated by s 64(5) of the Correctional Services Act 1982 (SA). It may be accepted that it would be a dereliction of duty on the part of a health professional simply to adopt the Parole Board’s view of the risk proposed by a person. But that does not mean that the content of such a report may not alert a health professional to matters of concern or relevance that in turn may guide or inform their examination of the person. Insofar as the concern is one of influence or independence, I consider this to be an insufficient reason to direct that the report not be provided. 47 The respondent also objects to the health professional being provided with the transcript of an interview of Mr Gogel by three members of the Parole Board on 11 March 2025.42 48 The applicant contends that the transcript of interview is relevant because it contains admissions of breaching conduct, which are also proven by the drug testing results that are not objected to. More importantly, the applicant submits that it provides the respondent’s explanations of the breaches of the first ESO and his engagement with supervision and informs the Parole Board report. The applicant submits that the respondent’s statements in the interview are capable of informing the matters required to be considered by the Court in s 7(6)(c), (f) and (h) of the HRO Act. I accept those submissions. Disposition 49 Noting that the applicant has indicated that various items of evidence, and some parts of particular documents, will not be provided to the health professional, I otherwise dismiss the interlocutory application. 41 Supporting affidavit, p 89. 42 Supporting affidavit, pp 91-102. -- 14 of 14 --