A-G (Qld) v Francis - [2006] QCA 372

SUPREME COURT OF QUEENSLAND

CITATION:

A-G (Qld) v Francis [2006] QCA 372

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant/respondent)
v
DARREN ANTHONY FRANCIS
(respondent/appellant)

FILE NO/S:

Appeal No 452 of 2006
SC No 3069 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

26 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2006

JUDGES:

Keane and Holmes JJA and Dutney J
Judgment of the Court

ORDER:

1.   In addition to the orders 1 and 2 made by the Court on 30 August 2006 [A-G (Qld) v Francis [2006] QCA 324], the Court now makes orders generally in terms of Exhibit VP1 to the affidavit of Vicki Parker dated 20 September 2006, but subject to the following:

(a) order 2 should be amended by the addition of the words "as and from 4pm on 28 September 2006";

(b) order 3 should be amended by the addition of the words "28 September 2012";

(c) condition (iii) should be amended to read:

"Reside at the accommodation currently agreed between the Chief Executive Officer of Brisbane Boarders Association Inc and the Department of Corrective Services and thereafter at such other places within the State of Queensland as may be approved by a Corrective Services Officer by way of a suitability assessment";

(d) to condition (xxi), add the words "without the prior permission of the Supervising Corrective Services Officer";

(e) to condition (xxii), after "attend" add "Dr Tom Hogan or such other";

(f) in conditions (xxiv) and (xxv), the reference to the direction "by the treating psychiatrist and the Supervising Corrective Services Officer" should be deleted, and in lieu thereof, the words "by decision of the treating psychiatrist and the Supervising Corrective Services Officer".

2.   The Order on costs is reserved; leave granted to Mr Cooke QC to submit written submissions on costs within 7 days; Mr Hinson SC then having 7 days to submit written submissions in response.

3.   The Court orders that the affidavit of Walter John Ogle sworn 26 September 2006 be sealed and placed in an envelope and kept on the court file, not to be opened save by an order of the Court or a Judge.

CATCHWORDS:

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) - appellant convicted of violent sexual offences against two women - order made that the appellant be detained after his sentence expired - upon review further order made that the appellant continue to be subject to the continuing detention order - further order set aside by this Court after initial hearing - this hearing ordered to allow evidence to be placed before the Court - whether it is desirable and feasible to make an order under s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13

COUNSEL:

N M Cooke QC, with M J Rinaudo-Lewis, for the appellant
M D…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A-G (Qld) v Francis

Details

AGLC: A-G (Qld) v Francis [2006] QCA 372
Case: [2006] QCA 372
Decision Date: 26 September 2006

CaseChat Overview and Summary

The matter before the Court was an appeal against an order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) which provided for the continuing detention of the appellant, Francis, following the expiration of his sentence. Francis, a convicted violent sexual offender, was initially subject to a continuing detention order under the Act, which was later set aside. The Court was required to determine whether it was desirable and feasible to make a new order for the continuing detention of Francis under section 13(5)(b) of the Act.

The central issue before the Court was the interpretation and application of section 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Court needed to consider the evidence presented and determine whether it was desirable and feasible to make an order for the continuing detention of Francis. The Court had to balance the risk that Francis posed to the community against his right to liberty and the principles of proportionality and natural justice.

The Court, after considering the evidence, concluded that it was both desirable and feasible to make a new order for the continuing detention of Francis. The Court found that the evidence demonstrated a significant risk that Francis would re-offend if released, and that this risk outweighed his right to liberty. The Court also considered the conditions that could be imposed to mitigate the risk, and ordered that Francis be subject to strict conditions, including residence requirements and supervision. The Court made orders generally in terms of the application, subject to certain amendments to the conditions of the order.

The Court made specific orders regarding the detention of Francis, including amendments to the conditions of the order and the time from which the order would be effective. The Court also reserved the order on costs, granting leave for written submissions on costs to be made by the parties. The affidavit of Walter John Ogle was sealed and placed on the court file, not to be opened without an order of the Court or a Judge.

Orders

Orders of the court

1. In addition to the orders 1 and 2 made by the Court on 30 August 2006 [A-G (Qld) v Francis [2006] QCA 324], the Court now makes orders generally in terms of Exhibit VP1 to the affidavit of Vicki Parker dated 20 September 2006, but subject to the following:

(a) order 2 should be amended by the addition of the words "as and from 4pm on 28 September 2006";

(b) order 3 should be amended by the addition of the words "28 September 2012";

"Reside at the accommodation currently agreed between the Chief Executive Officer of Brisbane Boarders Association Inc and the Department of Corrective Services and thereafter at such other places within the State of Queensland as may be approved by a Corrective Services Officer by way of a suitability assessment";

(d) to condition (xxi), add the words "without the prior permission of the Supervising Corrective Services Officer";

(e) to condition (xxii), after "attend" add "Dr Tom Hogan or such other";

(f) in conditions (xxiv) and (xxv), the reference to the direction "by the treating psychiatrist and the Supervising Corrective Services Officer" should be deleted, and in lieu thereof, the words "by decision of the treating psychiatrist and the Supervising Corrective Services Officer".

2. The Order on costs is reserved; leave granted to Mr Cooke QC to submit written submissions on costs within 7 days; Mr Hinson SC then having 7 days to submit written submissions in response.

3. The Court orders that the affidavit of Walter John Ogle sworn 26 September 2006 be sealed and placed in an envelope and kept on the court file, not to be opened save by an order of the Court or a Judge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A-G (Qld) v Francis [2006] QCA 372
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant/respondent) v DARREN ANTHONY FRANCIS (respondent/appellant)
FILE NO/S:	Appeal No 452 of 2006 SC No 3069 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal - Further Hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	26 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2006
JUDGES:	Keane and Holmes JJA and Dutney J Judgment of the Court
ORDER:	1. In addition to the orders 1 and 2 made by the Court on 30 August 2006 [A-G (Qld) v Francis [2006] QCA 324], the Court now makes orders generally in terms of Exhibit VP1 to the affidavit of Vicki Parker dated 20 September 2006, but subject to the following: (a) order 2 should be amended by the addition of the words "as and from 4pm on 28 September 2006"; (b) order 3 should be amended by the addition of the words "28 September 2012"; (c) condition (iii) should be amended to read: "Reside at the accommodation currently agreed between the Chief Executive Officer of Brisbane Boarders Association Inc and the Department of Corrective Services and thereafter at such other places within the State of Queensland as may be approved by a Corrective Services Officer by way of a suitability assessment"; (d) to condition (xxi), add the words "without the prior permission of the Supervising Corrective Services Officer"; (e) to condition (xxii), after "attend" add "Dr Tom Hogan or such other"; (f) in conditions (xxiv) and (xxv), the reference to the direction "by the treating psychiatrist and the Supervising Corrective Services Officer" should be deleted, and in lieu thereof, the words "by decision of the treating psychiatrist and the Supervising Corrective Services Officer". 2. The Order on costs is reserved; leave granted to Mr Cooke QC to submit written submissions on costs within 7 days; Mr Hinson SC then having 7 days to submit written submissions in response. 3. The Court orders that the affidavit of Walter John Ogle sworn 26 September 2006 be sealed and placed in an envelope and kept on the court file, not to be opened save by an order of the Court or a Judge.
CATCHWORDS:	STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) - appellant convicted of violent sexual offences against two women - order made that the appellant be detained after his sentence expired - upon review further order made that the appellant continue to be subject to the continuing detention order - further order set aside by this Court after initial hearing - this hearing ordered to allow evidence to be placed before the Court - whether it is desirable and feasible to make an order under s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13
COUNSEL:	N M Cooke QC, with M J Rinaudo-Lewis, for the appellant M D…