The standard of proof under s 23(5) of the Criminal Law (Sentencing) Act 1988 (SA) is the Briginshaw standard of reasonable satisfaction, not proof beyond reasonable doubt. The underlying primary facts on which expert opinions are based must be proved beyond reasonable doubt, but the ultimate evaluative question of incapacity to control sexual instincts requires assessment of expert opinions commensurate with the gravity of the consequences. A direction under s 23(5) is a 'sentence' for the purposes of the Act, and the court is not bound by the rules of evidence. The question of whether the period of detention commences upon parole eligibility or expiry of the head sentence was left open.
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