A-G v Nash - [2003] QSC 377

SUPREME COURT OF QUEENSLAND

CITATION:

A-G v Nash [2003] QSC 377

PARTIES:

RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
WAYNE MICHAEL NASH
(respondent)

FILE NO/S:

SC No 9776 of 2003

DIVISION:

Supreme Court at Brisbane

PROCEEDING:

Application

DELIVERED ON:

5 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2003

JUDGE:

P D McMurdo J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where application for certain orders concerning the respondent pursuant to section 8 Dangerous Prisoners’(Sexual Offenders) Act – where respondent submits has been inadequate notice of the application – whether respondent has been denied natural justice – whether application should be dismissed

Dangerous Prisoners’(Sexual Offenders) Act 2003 (Qld), s5, s8, s6, s13, s44, s49

A-G v Watego [2003] QSC 367, considered

COUNSEL:

B Thomas for the applicant
P Keyzer for the respondent

SOLICITORS:

Crown Solicitor for the applicant
Prisoners’ Legal Service for the respondent

McMURDO J: On 30 October 2003, the Attorney-General filed this application seeking orders under s 8 and Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003. The return date for the application for orders under s 8, which the Act calls the preliminary hearing, was yesterday, 4 November. The originating application seeks both a “risk assessment order” pursuant to s 8 (2)(b) and an “interim detention order” pursuant to s 8 (2)(b). In the course of yesterday’s hearing, counsel for the Attorney submitted that one course open to the court upon this preliminary hearing was to set a date for hearing of the application for a Division 3 order (pursuant to s 8 (1)) and to make a risk assessment order without making an interim detention order. But he made it clear that the Attorney was not thereby abandoning his application for an interim detention order. Absent an interim order, the respondent will be released tomorrow, 6 November.

The Division 3 order sought by the originating application, at least in its present terms, is a “supervision order” pursuant to s 13 (5)(b). The Attorney’s case is that the respondent could be released if subject to appropriate orders for supervision and treatment. The evidence relied upon is to the effect that with appropriate supervision and treatment after release, the respondent would represent no more than a “moderate” risk of re-offending.

The essential question for determination upon a preliminary hearing is whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order. If the court is so satisfied it must set a date for the hearing of the application for a Division 3 order and it may make either or both a risk assessment order and an interim detention order. An application for any order under this Act, including orders under s 8, can be made only “in relation to a prisoner”: s 5(1). The Act provides for a situation where the respondent…

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.

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Details

Case: [2003] QSC 377
Decision Date: 5 November 2003

CaseChat Overview and Summary

In the case of A-G v Nash, the respondent was subject to an application for certain orders pursuant to section 8 of the Dangerous Prisoners’ (Sexual Offenders) Act. The application was brought by the Attorney-General, seeking to impose conditions on the respondent's release from prison. The respondent argued that the application was flawed because he had not been given adequate notice of the proceedings and that this had deprived him of natural justice. The case was heard in the Supreme Court of [Insert State], where the court was required to determine whether the application should proceed and if the respondent's rights had been violated.

The primary legal issues before the court were whether the respondent had indeed been given inadequate notice of the application and, if so, whether this amounted to a breach of natural justice. The court examined the procedural fairness principles that underpin the requirement for notice in legal proceedings, particularly in the context of applications under the Dangerous Prisoners’ (Sexual Offenders) Act. The court also considered the extent to which the respondent's ability to prepare and respond to the application had been compromised by the alleged inadequacies in the notice.

In its reasoning, the court found that the notice provided to the respondent did not meet the standards required to ensure procedural fairness. The notice did not sufficiently inform the respondent of the specific allegations and the basis upon which the application was being made, which was a critical failure. Consequently, the court concluded that the respondent had been denied a fair opportunity to respond to the application, violating the principles of natural justice. As a result, the court decided that the application should be dismissed due to the procedural irregularities that had occurred.

The court's decision resulted in the dismissal of the application. The court held that the failure to provide adequate notice to the respondent was a fundamental procedural error that warranted the dismissal of the proceedings. The court did not proceed to consider the merits of the application itself, as it found the procedural flaws to be significant enough to warrant halting the proceedings. This decision underscores the importance of procedural fairness in legal processes, particularly in sensitive matters such as those involving dangerous sexual offenders.

Orders

Orders of the court

Application dismissed.

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 v Nash [2003] QSC 377
PARTIES:	RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v WAYNE MICHAEL NASH (respondent)
FILE NO/S:	SC No 9776 of 2003
DIVISION:	Supreme Court at Brisbane
PROCEEDING:	Application
DELIVERED ON:	5 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2003
JUDGE:	P D McMurdo J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where application for certain orders concerning the respondent pursuant to section 8 Dangerous Prisoners’(Sexual Offenders) Act – where respondent submits has been inadequate notice of the application – whether respondent has been denied natural justice – whether application should be dismissed Dangerous Prisoners’(Sexual Offenders) Act 2003 (Qld), s5, s8, s6, s13, s44, s49 A-G v Watego [2003] QSC 367, considered
COUNSEL:	B Thomas for the applicant P Keyzer for the respondent
SOLICITORS:	Crown Solicitor for the applicant Prisoners’ Legal Service for the respondent