Attorney-General v Fardon - [2003] QSC 331

SUPREME COURT OF QUEENSLAND

CITATION:

A-G v Fardon [2003] QSC 331

PARTIES:

RODNEY JOHN WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)

v

ROBERT JOHN FARDON
(respondent)

FILE NO/S:

SC No 5346 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

2 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24 September 2003

JUDGE:

Atkinson J

ORDER:

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – WHERE MEANING AMBIGUOUS OR UNCERTAIN – PRESUMPTION AS TO LEGISLATIVE INTENT – NOT TO INVADE PERSONAL COMMON LAW RIGHTS – LIBERTY OF SUBJECT – where statute confers power on court to order interim detention of a prisoner pending final hearing as to post-sentence detention in custody – where statute sets out test to be applied before court may make the interim order – where no standard of proof provided – meaning of the words “reasonable grounds for believing the prisoner is a serious danger to the community”

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – SUFFICIENCY – where expert evidence given – where applicant’s witnesses cross-examined by respondent – whether evidence of sufficient weight to satisfy court to high degree of probability

EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – QUALIFICATIONS OF WITNESS – EXPERIENCE OR STUDY IN RELEVANT FIELD – where psychiatrist required by court to provide assessment of prisoner’s risk of committing a serious sexual offence – where psychiatrist lacked experience necessary to make an assessment of that kind

EVIDENCE – ADMISSIBILITY AND RELEVANCY – FACTS RELEVANT TO FACTS IN ISSUE – IN GENERAL – where assessment of risk a prisoner will commit a serious sexual offence is in issue – where evidence prisoner threatened to commit violent, non-sexual offence – where such evidence irrelevant to matter in issue

Dangerous Prisoners (Sexual Offences) Act 2003 (Qld), s8(2)(b)
United Nations Covenant on Civil and Political Rights, Art 9.1-3, cited

Chester v The Queen (1988) 165 CLR 611 at 618, cited
Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137, cited
R v Secretary of State for the Home Department, ex parte Khawaja; ex parte Khera [1983] 1 All ER 765, cited
McGarry v The Queen (2001) 207 CLR 121, cited
MIMA v Al Masri [2003] FCAFC 70, cited
Plaintiff S157/2002 v Commonwealth [2003] HCA 2, cited
Townsend v Townsend [2001] NSWCA 136, cited
Williams v The Queen (1986) 161 CLR 278, cited
Wright v Wright (1948) 77 CLR 191, cited

COUNSEL:

Mr RV Hanson QC, with Mr RW Campbell and M Maloney, for the application
Mr SR Southwood QC, with MP Keyzer, for the respondent

SOLICITORS:

L Denysiv, Crown Solicitor, for the applicant
Prisoners Legal Service (Brisbane), for the respondent

The legislative scheme

The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) came into force on 6 June 2003. The Act was introduced to address growing community concern about the unsupervised release of convicted…

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: [2003] QSC 331
Decision Date: 2 October 2003

CaseChat Overview and Summary

The case of Attorney-General v Fardon involved the interpretation of a statute that allowed for the interim detention of a prisoner pending a final hearing about post-sentence detention. The central issue was whether the word “reasonable grounds for believing the prisoner is a serious danger to the community” in the statute required a specific standard of proof, and if so, what that standard should be. The court was also tasked with determining the sufficiency of evidence presented by the applicant, particularly the expert opinion on the prisoner's risk of committing a serious sexual offence.

The legal issues before the court included the interpretation of statutory language in the context of legislative intent, specifically whether the statute implied a higher standard of proof than the balance of probabilities, given its implications for personal liberty. Additionally, the court had to assess the admissibility and sufficiency of expert opinion evidence, including the qualifications of the expert providing the assessment. The court needed to decide if the psychiatrist's lack of relevant experience invalidated their assessment, and if the evidence of threats of non-sexual violence was relevant to the matter at hand.

The court held that the statute did not explicitly require a standard of proof higher than the balance of probabilities, but noted the importance of considering the implications for personal liberty when interpreting ambiguous statutory language. The court found the evidence presented was not sufficient to satisfy the high degree of probability required to meet the statutory test for interim detention. The expert opinion was deemed inadmissible because the psychiatrist did not have the necessary experience to assess the prisoner's risk of committing a serious sexual offence. Furthermore, evidence of the prisoner's threats of non-sexual violence was deemed irrelevant to the matter in issue.

The final orders of the court were that the interim detention order was quashed, and the application for an interim detention order was dismissed. The court emphasized the importance of adhering to the statutory test and ensuring that evidence presented met the required standard of proof.

Orders