The Federal Court held that the Tribunal did not deny procedural fairness by considering evidence of pending criminal charges in assessing danger to the community under s 36(1C)(b), where the applicant himself put the evidence before the Tribunal and his representative addressed its permissible use without objecting. The Court held it was not irrational for the Tribunal to distinguish between using pending charges as proof of danger and using them to undermine claims of rehabilitation, provided the Tribunal clearly stated the limited use made of the evidence. The Court also held that a Tribunal's refusal to treat mental illness as a mitigating circumstance was open on the evidence where the applicant had persistently failed to engage with available treatment over many years, and that the Tribunal's occasional use of the word 'unacceptable' did not demonstrate it applied the wrong legal test when the decision read as a whole showed it applied the 'danger' standard from DMQ20 and SLGS.
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