Attorney-General (Qld) v Jackway - [2017] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Jackway [2017] QSC 67

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

DOUGLAS BRIAN JACKWAY

(respondent)

FILE NO/S:

BS 7422 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

22 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2017

JUDGE:

Brown J

ORDER:

The Court affirms the decision of Acting Justice O’Brien made on 28 February 2012 that the respondent, Douglas Brian Jackway, is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. The respondent, Douglas Brian Jackway, continue to be subject to the continuing detention order made on 28 February 2012.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is detained under a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for the order to be reaffirmed under section 30 of the Act – where the respondent’s treating forensic psychologist opines that the respondent is demonstrating positive behaviour, despite having taken illicit substances in 2016 – where reporting psychiatrists both opined that if the respondent were released on a supervision order there would be a moderate chance of reoffending, and this could increase to high if the respondent took illicit substances or was experiencing stressors – whether the respondent should remain under the Continuing Detention Order under the Act

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 27, s 29, s 30(3)(a), s 30(4), s 33

AG v Fardon [2011] QCA 111, cited
AG (Qld) v Jackway [2016] QSC 74, cited
AG (Qld) v Lawrence [2009] QCA 136, cited

AG v S [2015] QSC 157, cited

COUNSEL:

J Rolls for the applicant

C Morgan for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

BROWN J: This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for review of the continuing detention of Douglas Brian Jackway, the respondent.[1] The applicant seeks to have a decision made on 28 February 2012, that the respondent presents a serious danger to the community in the absence of an Order under Division 3 Order of the Act (Div 3 Order), affirmed and further that the respondent continue to be subject to a Continuing Detention Order pursuant to s 30(3)(a) of the Act.
[1]This judgment refers to Mr Jackway and the respondent interchangeably.

There is no contest by Mr Jackway’s counsel that there is acceptable cogent evidence which would satisfy the court to the requisite standard that the respondent is a serious danger to the community in the absence of a Div 3 of the Act and that the decision of O’Brien AJ of 28 February 2012 ought to…

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: [2017] QSC 67
Decision Date: 22 May 2017

CaseChat Overview and Summary

The matter before the Queensland Court of Appeal involved the Attorney-General of Queensland, as the applicant, and Douglas Brian Jackway, the respondent. The dispute centred on the reaffirmation of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The applicant sought to reaffirm the order, asserting that the respondent remained a significant danger to the community. The respondent argued that positive behavioural changes warranted a reassessment of his risk level.

The primary legal issue before the court was whether the respondent should continue to be detained under the continuing detention order. This hinged on the assessment of the respondent’s risk of reoffending if released. The court had to consider the opinions of the respondent’s treating forensic psychologist, who reported positive behavioural changes, and the opinions of two reporting psychiatrists, who both indicated a moderate to high risk of reoffending if the respondent were released, particularly if he took illicit substances or experienced stressors.

In its reasoning, the court acknowledged the positive behavioural changes noted by the respondent’s treating forensic psychologist. However, the court placed significant weight on the risk assessments provided by the reporting psychiatrists, who highlighted the potential for the respondent to reoffend if released. The court concluded that the moderate to high risk of reoffending, especially in the context of illicit substance use and stressors, justified the continuation of the continuing detention order. The court thus affirmed the earlier decision, ordering that the respondent remain subject to the continuing detention order.

The court's final orders were that Douglas Brian Jackway continue to be subject to the continuing detention order made on 28 February 2012, affirming the assessment that he poses a serious danger to the community.

Orders

Orders of the court

The Court affirms the decision of Acting Justice O’Brien made on 28 February 2012 that the respondent, Douglas Brian Jackway, is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. The respondent, Douglas Brian Jackway, continue to be subject to the continuing detention order made on 28 February 2012.

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:	Attorney-General (Qld) v Jackway [2017] QSC 67
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DOUGLAS BRIAN JACKWAY (respondent)
FILE NO/S:	BS 7422 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	22 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2017
JUDGE:	Brown J
ORDER:	The Court affirms the decision of Acting Justice O’Brien made on 28 February 2012 that the respondent, Douglas Brian Jackway, is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that: 1. The respondent, Douglas Brian Jackway, continue to be subject to the continuing detention order made on 28 February 2012.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is detained under a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for the order to be reaffirmed under section 30 of the Act – where the respondent’s treating forensic psychologist opines that the respondent is demonstrating positive behaviour, despite having taken illicit substances in 2016 – where reporting psychiatrists both opined that if the respondent were released on a supervision order there would be a moderate chance of reoffending, and this could increase to high if the respondent took illicit substances or was experiencing stressors – whether the respondent should remain under the Continuing Detention Order under the Act Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 27, s 29, s 30(3)(a), s 30(4), s 33 AG v Fardon [2011] QCA 111, cited AG (Qld) v Jackway [2016] QSC 74, cited AG (Qld) v Lawrence [2009] QCA 136, cited AG v S [2015] QSC 157, cited
COUNSEL:	J Rolls for the applicant C Morgan for the respondent
SOLICITORS:	Crown Law for the applicant Legal Aid Queensland for the respondent