By Professor Bernadette McSherry
In February this year, Judge Mark Taft of the County Court of Victoria referred to the year long detention in prison of a man with intellectual disabilities who had been charged with wilful and obscene exposure because of a lack of other accommodation for him as ‘an embarrassment to the administration of criminal justice’.
If the detention of a person with an intellectual disability in prison for one year because of the lack of a viable alternative may be considered an embarrassment, then the detention of Gregory Yates, a man with an intellectual disability, for over 25 years on the basis of a ‘fear’ that he might reoffend may be viewed as a debacle. The High Court put an end to the ongoing imprisonment of Gregory Yates in Yates v The Queen  HCA 8, but the indefinite detention of people with intellectual disabilities continues to raise substantial questions.
Gregory Yates’ Early Life
Gregory John Yates was born on 24 November 1960. When he was three years old, he was diagnosed as ‘hyperactive with minimal brain damage’ and from that time on, Yates was provided with support and services by the Western Australian Department of Health’s ‘Division for the Intellectually Handicapped’. From 1968 to 1970, he was educated at the Sir James Mitchell Spastic Centre in Mt Lawley, Perth and subsequently at the White Gum Valley Special School and the Bayswater Special School until 1978.
There was evidence that Yates had engaged in inappropriate sexual behaviour during his teenage years. A 1982 report by a psychologist, SK Robertson, referred to the concerns of Yates’ parents about his ‘sexual associations with young children since 1976’ and mentioned reports to the police relating to incidents in 1976, 1977, 1978 and 1981. Two charges were apparently laid, but dismissed. When he was 18, Yates was placed in a residential facility where he received weekly individual sexual counselling from a psychologist, and he subsequently participated in Human Relationship/Sex Induction Programmes.
On 21 March 1985, Yates was convicted of gross indecency with a ‘male person’. In January 1986, he was charged with wilful exposure in a car park and being on premises without lawful excuse. He was later convicted of these offences as well as stealing $12 worth of newspapers. The punishment was a fine of $400. On 22 February 1986 Yates was convicted of ‘evil designs’, this being a catch-all offence encompassing ‘morally reprehensible conduct’ for which the accused was unable to offer any satisfactory explanation. He was fined $20 for this offence.
On 7 August 1986, there was evidence that Yates had been seen masturbating in the public toilets of the Belmont Forum, a suburban shopping centre in Perth. He subsequently went to another shopping centre, the Belmont Village, where he detained a seven and a half year old girl in a cubicle in the women’s toilets and forced his penis into her mouth. After he ejaculated, he hit the girl over the head. Yates was subsequently charged with one count of the deprivation of liberty and aggravated sexual assault (the circumstances of aggravation being the victim’s age and his hitting her). The maximum sentence for the deprivation of liberty was 10 years and for aggravated sexual assault, twenty years in prison.
On the second day of his trial in February 1987, Yates gave evidence that he had followed the girl into the toilets and that she had ‘sucked me off’: at . This contradicted his instructions to his lawyers and after a short adjournment, Yates pleaded guilty to both charges. A contemporaneous report of the case in The West Australian referred to evidence that Yates had a ‘mild mental handicap caused by a brain haemorrhage at birth’.
One month after the verdict, Justice Wallace sentenced Yates to seven years’ imprisonment in relation to each charge, with the terms to be served concurrently (that is, at the same time). He also made an order under the then s 662 of the Criminal Code 1913 (WA) (which enabled indefinite detention after the expiry of the sentence ‘at the Governor’s pleasure’) that Yates be subject to indefinite detention.
‘At the Governor’s Pleasure’
The power to order indefinite detention was introduced in Western Australia in 1918 with the aim of detaining offenders in a ‘reformative prison’ where they could obtain treatment. No such prison was ever built. Detention at ‘the Governor’s Pleasure’ stemmed from the ability of the Crown to detain people for indefinite periods of time (hence the term, ‘at Her Majesty’s Pleasure’) and was generally used for those with intellectual disabilities or severe mental health problems. The ‘Governor’s Pleasure’ scheme for indefinite detention was repealed in Western Australia in 1995. Section 98 of the Sentencing Act 1995 was introduced in its stead to enable the indefinite detention of offenders considered a ‘danger to society’.
In the case of Tunaj v The Queen  WAR 48, Chief Justice Burt wrote a judgment for the Court of Criminal Appeal holding that an order under s 662 should be made ‘only in very exceptional circumstances’ and that those circumstances must ‘firmly indicate that the convicted person ha[d] shown himself to constitute a danger to the public’ (at 51).
On 29 July 1987, the Court of Criminal Appeal reduced Yates’ sentence by nine months as credit for a period of pre-sentence custody (Yates v The Queen (1987) 25 A Crim R 361). However Justice Brinsden, with whom Justice Smith agreed, refused to set aside the order for indefinite detention. Justice Brinsden held that the indefinite detention order was appropriate because ‘[c]ounsel for the applicant, as well as the experts who have examined him, have expressed little confidence that he could undergo a long period of parole without reoffending’ (at 369). Justice Brinsden found that Yates was ‘a man with serious sexual problems which in the past have resulted in the commission of sexual offences’ and ‘it is very difficult to have any real confidence that his behaviour pattern will improve and that he will not re-offend, and seriously offend, when released into the community’ (at 369).
In his dissenting judgment, Chief Justice Burt held that the evidence was not sufficient to justify an order for indefinite detention. He noted that Yates’ offences prior to August 1986 were not ones of personal violence and there was insufficient evidence that Yates had ‘shown himself to be a danger to the public’ (at 365).
Twenty-Five Years Later
The term of Yates’ sentence expired in June 1993, but because of the order for indefinite detention, Yates remained in prison for twenty-five years, until his plight was brought to the attention of Legal Aid Western Australia in early 2011. Legal Aid sent a petition to the Attorney-General for Yates’ release, but this was declined. They then sought special leave to appeal to the High Court of Australia.
The High Court in Yates v The Queen  HCA 8 unanimously granted special leave to appeal from the Court of Criminal Appeal’s refusal to set aside the order for indefinite detention, despite the application being made out of time.
The main issue before the High Court was whether there was sufficient evidence before Justice Wallace back in 1987 that Yates should be indefinitely detained due to his ‘antecedents, character, age, health, or mental condition’ as set out in s 662 of the Criminal Code (WA).
There was no current psychiatric evidence presented at the sentencing hearing. There were, however, four reports by mental health practitioners presented to Justice Wallace that had been made for previous hearings, including the 1982 psychologist’s report by SK Robertson mentioned above.
One report had been made in June 1985 by a psychiatrist, Professor German, who saw Yates for ‘a few minutes’ and who concluded that he had ‘a variety of personality trait disorder[s] resulting from diffuse brain damage’. Another report by a consultant psychiatrist, Dr Booth, assessed Yates in December 1986 as ‘a man of low normal intelligence who has a life-long history of psychiatric abnormality resulting in poor socialization’. A report by a clinical psychologist, Ms McHugh, stated that unless Yates completed ‘adaptive functioning programmes’, he would be at risk of re-offending. On the basis of this evidence, Justice Wallace concluded that Yates was ‘unable to control [his] deviant behaviour’ and represented ‘a danger to the community and in particular to young people’.
The High Court unanimously held that there had been insufficient evidence for the making of an order for indefinite detention. Chief Justice French and Justices Hayne, Crennan and Bell delivered a joint judgment stating that Chief Justice Burt in his dissenting judgment in the Court of Criminal Appeal had been ‘plainly correct’ to conclude the order should not have been made. They held that ‘[t]he evidence was not capable of demonstrating that [Yates] was so likely to commit further crimes of violence, including sexual offences, that he constituted a constant danger to the community’.
Justice Gageler, in a separate judgment, also referred to Chief Justice Burt as having been ‘right’ in his dissenting view. Justice Gageler pointed out that only one report before the sentencing judge had mentioned a ‘fear’ that Yates would be ‘at risk of re-offending on his release’ and that this was insufficient evidence that Yates would ‘remain a constant danger to the community’.
The High Court decision meant that Yates was released from custody without parole supervision. In their joint judgment, Chief Justice French and Justices Hayne, Crennan and Bell noted that the Disability Services Commission could provide support and services to Yates and that there was a scheme whereby a ‘child protection prohibition order’ could be made if necessary. They added that ‘[t]o observe that there is a statutory scheme designed to protect the community from the risk of harm posed by persons who have been convicted of sexual offences and who are at liberty in the community is to say nothing about whether the scheme should be engaged in this case’.
Those with intellectual disabilities form a disproportionately large cohort of prisoners. One meta-study, for example, has estimated that 60 per cent of prisoners in the United States, United Kingdom, Australia and New Zealand suffer from ‘traumatic brain injury’, defined as a brain injury acquired after birth. Those with intellectual disabilities may be detained in prison far longer than those without such disabilities either through indefinite detention provisions or via laws that enable them to be considered ‘unfit to plead’. For those found unfit to plead, in Western Australia and the Northern Territory, this detention occurs in prison, usually in maximum-security settings, while in other states such as Queensland, Victoria and Tasmania, a person who has been found unfit to plead may be detained in a secure psychiatric facility.
The indefinite detention of individuals with intellectual disabilities on the basis that they may pose a risk to others raises substantial questions concerning human rights. The Convention on the Rights of Persons with Disabilities (‘CRPD’), which Australia ratified on 17 July 2008, clarifies the obligations on States Parties to promote and ensure the rights of person with disabilities and sets out the steps that should be taken to ensure equality of treatment. It goes into much more detail than previous general human rights conventions concerning what action needs to be taken to prohibit discrimination. Neither ‘disability’ nor ‘persons with disabilities’ is defined in the CRPD, but art 1 states that the latter term includes ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.
Article 14(1)(b) of the CRPD requires Australia to ensure that persons with disabilities ‘[a]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty’’ [emphasis added]. Even if this provision is interpreted to mean that the ‘the existence of a disability alone’ does not justify such laws, (but another criterion such as ‘dangerousness’ does), detention without any attempt to treat or otherwise rehabilitate those with intellectual disabilities raises the issue of cruel and unusual punishment under art 14 of the CRPD.
There is also the issue of risk assessment. Clearly the evidence led at Yates’ sentencing hearing would be considered inadequate for the purposes of indefinite detention today, given the rise of risk assessment instruments and the better training of expert witnesses in this field. However, risk assessment evidence has been criticised on a number of grounds and indefinite detention on the basis of risk raises numerous procedural and policy issues.
Ultimately, the case of Gregory John Yates shows that there is a real need both to consider the human rights implications of indefinite detention on the basis of a possible risk to others and to explore alternative options to ensure those with intellectual disabilities are treated on an equal basis with others as mandated by the CRPD.
AGLC3 Citation: Bernadette McSherry, ‘The High Court Ends a Criminal Justice Debacle: Yates v The Queen’ on Opinions on High (10 May 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/05/10/mcsherry-yates/>.
Professor Bernadette McSherry is the Foundation Director of the Melbourne Social Equity Institute at The University of Melbourne.