Attorney-General for the State of Qld v Fardon (No 2)

The Attorney-General for the State of Queensland sought a stay of an order made by the Supreme Court, which was intended to release the respondent, Mr Fardon, from custody subject to a supervision order. The Attorney-General applied for a stay of this order pending the determination of a proposed appeal. The appeal was argued on three substantial grounds: the reasons for judgment applied the wrong test, the conclusion that Mr Fardon was "of the order of risk that the average sexual offender would re-offend" was erroneous, and adequate protection of the community could not reasonably and practicably be managed if Mr Fardon was released subject to a supervision order.

The court considered the grounds for the appeal and the arguments presented by the Attorney-General. It found that while the appeal had some prospect of success, the application for a stay was not in the interests of justice. The court considered that the risk to the community if the order was not stayed was significant, and that the benefits of releasing Mr Fardon subject to a supervision order outweighed the potential risks. The court also noted that the applicant had not submitted any argument in relation to whether the applicant would lose the benefit of a successful appeal if the order for the release of the respondent subject to a supervision order is not stayed.

The court dismissed the application for a stay, and the order for the release of Mr Fardon subject to a supervision order remains in effect. This decision highlights the importance of considering the risk to the community when deciding whether to stay an order pending an appeal. It also emphasises the need for applicants to make a compelling case for a stay, by demonstrating that the balance of convenience favours a stay and that they will not lose the benefit of a successful appeal if the order is not stayed.