Attorney-General (Qld) v Fardon

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Fardon [2011] QCA 111

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
ROBERT JOHN FARDON
(respondent)

FILE NO/S:

Appeal No 4240 of 2011
SC No 5346 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2011

JUDGE:

Chesterman JA

ORDER:

Order that the order of Dick AJ made on 20 May 2011 not take effect until the determination of appeal 4240 of 2011, or earlier order

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant has appealed against the order of Dick AJ releasing the respondent from custody subject to a supervision order – where the applicant claims the community can only be adequately protected against the risk of the respondent re-offending by being detained in custody – where the applicant seeks a stay of the order of Dick AJ made on 20 May 2011 until the appeal is heard – whether a stay of the order should be granted

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, Part 2 Div 3, s 17, s 22
Uniform Civil Procedure Rules 1999 (Qld), r 761(2)

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, applied
Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, considered
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, applied
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, considered
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, considered

COUNSEL:

P J Davis SC, with A D Scott, for the applicant
D P O’Gorman SC, with M Nolan, for the respondent

SOLICITORS:

Crown Law for the applicant
Patrick Murphy Solicitor for the respondent

[1]      CHESTERMAN JA:  On 30 June 1989 the respondent was convicted of rape, sodomy and assault occasioning bodily harm, and sentenced to 14 years’ imprisonment.  The offences were committed on 4 October 1988, only a few months after he had been released from prison after serving a sentence of 13 years for offences of rape, indecent dealing and unlawful wounding.  In June 2003, shortly before the expiration of the 14 year term of imprisonment the Attorney-General applied for orders pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) that the respondent be detained in custody for an indefinite term for care, control and treatment.

[2] By s 3 of the Act its objects are:

“(a)to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b)         to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

[3] Gleeson CJ explained the purpose…