Attorney-General for the State of Queensland v Kitchener

In the matter of the Attorney-General for the State of Queensland v Kitchener, the Queensland Court of Appeal was tasked with deciding whether the respondent, a convicted dangerous sexual offender, should be released pending the final hearing of an application brought by the Attorney-General for an order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). The respondent had contravened the terms of a supervision order made under the DPSOA by failing to comply with curfew and monitoring directions and by consuming alcohol. The key legal issues for the court were whether there were "exceptional circumstances" under section 21(4) of the DPSOA justifying the respondent's release pending the final hearing and whether the discretion to release the respondent should be exercised.

The court considered the principles of statutory interpretation and the specific provisions of the DPSOA. It noted that section 21(4) required the court to consider whether there were exceptional circumstances justifying release. The court emphasised that the burden of proof rested on the applicant to establish exceptional circumstances. In this case, the applicant had not argued that a continuing detention order should be made, nor had they contended that the respondent's release would pose a risk to the community. The court acknowledged that the respondent had contravened the supervision order but highlighted that the contraventions did not involve any sexual act or offence. The court concluded that, despite the contraventions, the adequate protection of the community could be ensured by the existing supervision order without amendment. Therefore, the court found that there were exceptional circumstances justifying the respondent's release pending the final hearing.

On 30 October 2020, the court made orders releasing the respondent from custody subject to the supervision order made by Justice Byrne on 13 January 2014, and as later amended, until the final decision was made under section 22 of the DPSOA. The matter was to be mentioned on 6 November 2020. On that date, the court confirmed that the respondent would continue to be subject to the requirements of the supervision order.