Attorney-General (Qld) v Lawrence - [2014] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Lawrence [2014] QCA 220

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
MARK RICHARD LAWRENCE
(respondent)

FILE NO/S:

Appeal No 4117 of 2014
SC No 7468 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2014

JUDGES:

Fraser, Gotterson and Morrison JJA
Judgment of the Court

ORDERS:

1.   The appeal be allowed.

2.   The orders of the learned primary judge made on 2 May 2014 be set aside.

3.   The respondent, Mark Richard Lawrence, continue to be subject to the continuing detention order made on 3 October 2008.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – where the respondent has been subject to a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) since 2008 – where the primary judge rescinded that order and ordered the respondent be released subject to a supervision order – where the appellant argues the appellate court should substitute its own decision for the primary judge’s even if error in the primary decision of the kind described in House v The King is not demonstrated – whether the principles in House v The King concerning appellable error are applicable to an appeal against a discretionary decision to release a prisoner on a supervision under s 30(3) of the Act

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the primary judge rescinded the continuing detention order to which the respondent had been subject since 2008 – where the expert witnesses gave evidence that the respondent’s risk level had decreased – where those assessments were based on the assumption that the respondent was being truthful about certain matters – where the respondent was not called to give evidence about those matters– whether the primary judge properly assessed whether there was adequate evidence for assuming the respondent was being truthful about those matters – whether in all the circumstances a supervision order could ensure adequate protection of the community

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 30(1), s 30(3), s 30(4), s 31, s 43

Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, related
Attorney-General for the State of Queensland v Yeo [2010] QCA 69, considered
Attorney-General (Qld) v Lawrence [2011] QCA 347, cited
Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited
Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, related
Attorney-General (Qld) v Lawrence [2014] QSC 77, related
House v The King (1936) 55 CLR 499; [1936] HCA 40, considered
Norbis v Norbis (1986) 161 CLR…

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: [2014] QCA 220
Decision Date: 2 September 2014

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Lawrence involved an appeal by the Attorney-General of Queensland against a decision of the primary judge to rescind a continuing detention order imposed on Mark Richard Lawrence under the Dangerous Prisoners (Sexual Offenders) Act 2003. The order had been in place since 2008. The primary judge had ordered Lawrence's release subject to a supervision order, based on expert evidence indicating a decrease in his risk level. The Attorney-General argued that the primary judge should not have rescinded the detention order without evidence that Lawrence was being truthful about the matters upon which the expert evidence was based, and that a supervision order could not adequately protect the community.

The legal issues before the court were whether the principles concerning appellable error in House v The King applied to an appeal against a discretionary decision to release a prisoner on a supervision order, and whether the primary judge properly assessed the adequacy of the evidence and the appropriateness of the supervision order. The court needed to determine whether the primary judge erred in law or made a significant error in assessing the evidence and in determining that a supervision order was sufficient to protect the community.

The court found that the primary judge had erred in law in not assessing whether there was adequate evidence to assume that Lawrence was being truthful about certain matters, and in not considering whether a supervision order could adequately protect the community. The court held that the principles concerning appellable error in House v The King applied, and that the primary judge's decision was open to interference. The appeal was allowed, the orders of the primary judge were set aside, and Lawrence was to continue to be subject to the continuing detention order.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the learned primary judge made on 2 May 2014 be set aside.

3. The respondent, Mark Richard Lawrence, continue to be subject to the continuing detention order made on 3 October 2008.

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 Lawrence [2014] QCA 220
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v MARK RICHARD LAWRENCE (respondent)
FILE NO/S:	Appeal No 4117 of 2014 SC No 7468 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 June 2014
JUDGES:	Fraser, Gotterson and Morrison JJA Judgment of the Court
ORDERS:	1. The appeal be allowed. 2. The orders of the learned primary judge made on 2 May 2014 be set aside. 3. The respondent, Mark Richard Lawrence, continue to be subject to the continuing detention order made on 3 October 2008.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – where the respondent has been subject to a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) since 2008 – where the primary judge rescinded that order and ordered the respondent be released subject to a supervision order – where the appellant argues the appellate court should substitute its own decision for the primary judge’s even if error in the primary decision of the kind described in House v The King is not demonstrated – whether the principles in House v The King concerning appellable error are applicable to an appeal against a discretionary decision to release a prisoner on a supervision under s 30(3) of the Act CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the primary judge rescinded the continuing detention order to which the respondent had been subject since 2008 – where the expert witnesses gave evidence that the respondent’s risk level had decreased – where those assessments were based on the assumption that the respondent was being truthful about certain matters – where the respondent was not called to give evidence about those matters– whether the primary judge properly assessed whether there was adequate evidence for assuming the respondent was being truthful about those matters – whether in all the circumstances a supervision order could ensure adequate protection of the community Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 30(1), s 30(3), s 30(4), s 31, s 43 Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, related Attorney-General for the State of Queensland v Yeo [2010] QCA 69, considered Attorney-General (Qld) v Lawrence [2011] QCA 347, cited Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, related Attorney-General (Qld) v Lawrence [2014] QSC 77, related House v The King (1936) 55 CLR 499; [1936] HCA 40, considered Norbis v Norbis (1986) 161 CLR…