Detaining individuals beyond their sentence is troubling enough in a democratic society but to botch the legal process when a person makes a bid for freedom is disturbing.

The decision by Queensland’s Attorney-General Yvette D’Ath to continue detaining a prisoner — who will turn 80 in December this year — was found wanting in a review of the decision by the Queensland Court of Appeal handed down last Friday.

Joseph Butler, who is intellectually disabled, was sentenced in May 1970 for sexual offences against young males committed between 1962 and 1970 and was sentenced to a maximum of one year. In June of the same year, Butler was declared to be incapable of exercising his sexual instincts in a proper manner.

As a result, the Criminal Law Amendment Act of 1945 deemed that Butler should be detained indefinitely subject to regular review, and subject to medical opinion indicating that he was unable to control his sexual instincts in a proper manner.

So, since May 1971 — that is, 47 years beyond the punishment fit for the crimes — Butler has been detained in forensic mental health facilities in Queensland. As he approaches age 80, Butler is frail and does not have good physical health. 

According to the judgment led by the President of the Court of Appeal Walter Sofronoff: 

[Butler] suffers from mild mental retardation but he does not suffer from any mental illness. He also suffers from a series of medical conditions, including: heart problems, including previous heart attacks; hypertension; type II diabetes; mild congestive cardiac failure; bladder cancer; extensive solar skin damage; osteoarthritis; cataracts; and declining kidney function. In addition he has to use bilateral hearing aids and, because of recent falls he walks with a cane.

Not surprisingly, Butler has applied to have the indefinite detention order lifted. Given his age and the state of his health, one would have thought the Queensland government might have consented to Butler’s release with a degree of alacrity. 

That is not what happened.

Such an assumption is dependent on politicians making decisions on the facts and the law, and not jumping at the shadows of expected uninformed media comment on any decision involving persons convicted of sexual offending.

Butler and his lawyers started the process in September 2016, but it was not until February 2018 that Butler received the bad news — he would not be released, presumably on the recommendation of D’Ath. 

The only question that was relevant to whether Butler should be released, the Court of Appeal said, was whether “upon the basis of the expert opinions that have been offered, [could the Governor in Council] be satisfied affirmatively that [Butler] is presently incapable of properly controlling his sexual instincts?”

On that question, the medical evidence was unanimous: Butler was capable of controlling his sexual instincts. 

The court noted two psychiatrists had come to the same view. According to a Dr Stedman: “Butler has demonstrated clearly, over several decades, that he has little interest in forming sexual relationships with either adults or children. He is adamantly opposed to sexual contact between adults and children and has a similar attitude to same sex sexual contact.”

And his colleague, Dr Aboud, was of the same view: “He presents a chronic low risk, which has proven manageable in the context of the boundaries, directions, monitoring and medication provided by a psychiatric institution. He is now elderly and infirm.”

The Court of Appeal said that despite this expert evidence, the Governor in Council Paul de Jersey was concerned that if Butler were to be released, he could not be compelled to attend any treatment programs or supervision even though it acknowledged there were people in the community who could support him.

The decision also said that the question about control of sexual instincts was “the only relevant question” and it was never addressed by the Governor in Council, making the decision fundamentally flawed.

Butler’s case now goes back to the Governor in Council who has to undertake the process again this time, hopefully, showing an understanding of the law under which it is required to act and so getting the process right.

The complete failure to apply the law correctly in Butler’s case is disturbing. Was it a case that the politics of allowing an aging person who once was convicted of sex offences clouded D’Ath’s judgement? 

It seems extraordinary that Queensland’s first law officer and the Governor in Council should get the process so wrong given they were only required to answer one simple question of fact and the available evidence was all one way.