Attorney-General (Qld) v Winston - [2017] QSC 336

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Winston [2017] QSC 336

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
DENIS WINSTON

(respondent)

FILE NO:

BS No 9202 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

16 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2017

JUDGE:

Burns J

ORDERS:

The orders of the court are:

1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘the Act’), the decision made on 6 February 2009 that the respondent, Denis Winston, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed.

2. Pursuant to s 30(5) of the Act, the continuing detention order made on 6 February 2009 is rescinded.

3. Pursuant to s 30(3)(b) of the Act, the respondent is released from custody subject to the conditions set out in the Schedule to this judgment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a continuing detention order was made with respect to the respondent pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the Attorney-General applied, pursuant to s 27 of the Act, for the review of that order – whether the respondent is a serious danger to the community in the absence of an order under Division 3 of the Act – whether the continuing detention order ought be affirmed – whether the adequate protection of the community can be reasonably and practically managed by a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(4), s 13(5)(a), s 13(6), s 16, s 27, s 30, s 30(1)

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

Attorney-General for the State of Queensland v Winston [2015] QSC 297, cited

COUNSEL:

J Rolls for the applicant

K Prskalo for the respondent

SOLICITORS:

G R Cooper Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

HIS HONOUR: The Honourable Attorney-General for the State of Queensland has applied pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for the review of a continuing detention order made in relation to respondent, Denis Winston.

On 6 February 2009, Byrne SJA ordered that Mr Winston be detained in custody for an indefinite term for care, control and treatment pursuant to s 13(5)(a) of the Act.

On 27 May 2010 the order was reviewed by Douglas J and affirmed.

On 26 October 2015 the order was reviewed, on this occasion by A Lyons J, and again affirmed: see Attorney-General for the State of Queensland v Winston [2015] QSC 297.

On 24 October 2016, the order was reviewed by Applegarth J. His Honour affirmed the decision.

Mr Winston is 69 years of age. In January 1996 he was dealt…

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 336
Decision Date: 16 November 2017

CaseChat Overview and Summary

In the matter of Attorney-General (Qld) v Winston, the Queensland Court of Appeal was tasked with reviewing a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General had applied for the review of the order, which was made with respect to Denis Winston, who had previously been convicted of serious sexual offences. The central issue before the court was whether Winston posed a serious danger to the community in the absence of a supervision order under Division 3 of the Act, and whether his continued detention was necessary for the adequate protection of the community.

The legal issues for the court to determine included the interpretation and application of the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), particularly in relation to the criteria for assessing whether an individual is a serious danger to the community. The court also needed to consider whether the conditions of a supervision order could reasonably and practically manage the risk posed by Winston. The court's role was to review the evidence and expert assessments presented to determine whether the original decision to detain Winston was supported by the material before the court.

The court found that the evidence did not support the continued detention of Winston. The court concluded that the criteria for a serious danger to the community had not been met and that the risk posed by Winston could be managed through a supervision order. The court accordingly affirmed the decision that Winston was a serious danger to the community in the absence of a supervision order but rescinded the continuing detention order. Instead, the court ordered Winston's release from custody subject to specific conditions set out in the judgment. This decision highlights the importance of rigorous evidence and expert assessments in determining the appropriate measures for managing the risk posed by serious sexual offenders.

Orders

Orders of the court

The orders of the court are:

1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘the Act’), the decision made on 6 February 2009 that the respondent, Denis Winston, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed.

2. Pursuant to s 30(5) of the Act, the continuing detention order made on 6 February 2009 is rescinded.

3. Pursuant to s 30(3)(b) of the Act, the respondent is released from custody subject to the conditions set out in the Schedule to this judgment.

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 Winston [2017] QSC 336
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DENIS WINSTON (respondent)
FILE NO:	BS No 9202 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	16 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2017
JUDGE:	Burns J
ORDERS:	The orders of the court are: 1. Pursuant to s 30(1) of the *Dangerous Prisoners (Sexual Offenders) Act* 2003 (Qld) (‘the Act’), the decision made on 6 February 2009 that the respondent, Denis Winston, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed. 2. Pursuant to s 30(5) of the Act, the continuing detention order made on 6 February 2009 is rescinded. 3. Pursuant to s 30(3)(b) of the Act, the respondent is released from custody subject to the conditions set out in the Schedule to this judgment.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a continuing detention order was made with respect to the respondent pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the Attorney-General applied, pursuant to s 27 of the Act, for the review of that order – whether the respondent is a serious danger to the community in the absence of an order under Division 3 of the Act – whether the continuing detention order ought be affirmed – whether the adequate protection of the community can be reasonably and practically managed by a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(4), s 13(5)(a), s 13(6), s 16, s 27, s 30, s 30(1) Attorney-General for the State of Queensland v Fardon[2011] QCA 111, cited Attorney-General for the State of Queensland v Winston [2015] QSC 297, cited
COUNSEL:	J Rolls for the applicant K Prskalo for the respondent
SOLICITORS:	G R Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent