Attorney-General v Fardon - [2018] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Fardon [2018] QCA 251

PARTIES:

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

FILE NO/S:

Appeal No 9441 of 2018
SC No 5346 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 193 (Jackson J)

DELIVERED ON:

3 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2018

JUDGES:

Holmes CJ and Gotterson JA and Henry J

ORDERS:

Appeal allowed.1.

Leave for the appellant to adduce further evidence granted.2.

The Court being satisfied pursuant to s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order, a judge of the Trial Division will conduct a s 13 hearing of the application for a further supervision order.3.

The respondent undergo examination by two psychiatrists, namely Dr Elizabeth McVie and Dr Scott Harden, who are to prepare independent reports.4.

The duration of the supervision order made 4 October 2013, expressed as lasting “until 3 October 2018”, is varied to “until disposition of the s 13 hearing”.5.

Liberty to apply.6.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – GENERAL PRINCIPLES – where the respondent is subject to a soon to expire supervision order – where the applicant applied for a further supervision order – where that application was dismissed at the preliminary hearing – where the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) imposes a threshold test at the preliminary hearing – where the Act requires satisfaction at the preliminary hearing that there are reasonable grounds for believing a prisoner is a serious danger to the community – where the test at final hearing is whether a court is satisfied the prisoner is a serious danger to the community – whether the satisfaction of the preliminary hearing test was conflated with the final hearing test at first instance – whether the Court of Appeal, in applying the preliminary hearing test afresh, is satisfied that test has been met

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 8, s 13
Police Powers and Responsibilities and Other Legislation Amendment Act 2018 (Qld)

Attorney-General (Qld) v Fardon [2018] QSC 193, cited
Attorney-General (Qld) v Nemo [2018] QSC 202, cited
George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited
Prior v Mole (2017) 91 ALJR 441; (2017) 343 ALR 1; [2017] HCA 10, cited

COUNSEL:

P J Dunning QC SG, with J B Rolls, for the appellant
D O’Gorman SC, with R Reed, for the respondent

SOLICITORS:

Crown Law for the appellant
Patrick Thomas Murphy for the respondent

THE COURT: On 17 April 1967 in the Grafton District Court, when the respondent was 19, he…

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: [2018] QCA 251
Decision Date: 3 October 2018

CaseChat Overview and Summary

The appeal in this case involves the Attorney-General of Queensland against Fardon, a prisoner subject to a soon-to-expire supervision order. The Attorney-General applied for a further supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), but the application was dismissed at the preliminary hearing. Fardon appealed against this decision. The primary legal issues before the court were whether the satisfaction of the preliminary hearing test was incorrectly conflated with the final hearing test, and whether the Court of Appeal, in applying the preliminary hearing test afresh, was satisfied that the test had been met.

The court examined the statutory framework and the procedural steps required under the Dangerous Prisoners (Sexual Offenders) Act. The court noted that the preliminary hearing required satisfaction that there were reasonable grounds for believing the respondent was a serious danger to the community, while the final hearing required the court to be satisfied that the respondent was indeed a serious danger to the community. The court found that the trial judge had conflated the two tests, leading to an error in the dismissal of the application. The Court of Appeal conducted its own assessment of the preliminary hearing test and found that there were reasonable grounds for believing Fardon to be a serious danger to the community.

The appeal was allowed, and leave was granted for the Attorney-General to adduce further evidence. The court ordered that a judge of the Trial Division conduct a final hearing of the application for a further supervision order. Fardon was required to undergo examination by two psychiatrists, Dr Elizabeth McVie and Dr Scott Harden, who would prepare independent reports. The duration of the supervision order was varied to remain in effect until the disposition of the final hearing. The order included liberty to apply for further directions if necessary.

Orders

Orders of the court

Appeal allowed.1.

Leave for the appellant to adduce further evidence granted.2.

The Court being satisfied pursuant to s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order, a judge of the Trial Division will conduct a s 13 hearing of the application for a further supervision order.3.

The respondent undergo examination by two psychiatrists, namely Dr Elizabeth McVie and Dr Scott Harden, who are to prepare independent reports.4.

The duration of the supervision order made 4 October 2013, expressed as lasting “until 3 October 2018”, is varied to “until disposition of the s 13 hearing”.5.

Liberty to apply.6.

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 Fardon [2018] QCA 251
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v ROBERT JOHN FARDON (respondent)
FILE NO/S:	Appeal No 9441 of 2018 SC No 5346 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2018] QSC 193 (Jackson J)
DELIVERED ON:	3 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2018
JUDGES:	Holmes CJ and Gotterson JA and Henry J
ORDERS:	Appeal allowed.1. Leave for the appellant to adduce further evidence granted.2. The Court being satisfied pursuant to s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order, a judge of the Trial Division will conduct a s 13 hearing of the application for a further supervision order.3. The respondent undergo examination by two psychiatrists, namely Dr Elizabeth McVie and Dr Scott Harden, who are to prepare independent reports.4. The duration of the supervision order made 4 October 2013, expressed as lasting “until 3 October 2018”, is varied to “until disposition of the s 13 hearing”.5. Liberty to apply.6.
CATCHWORDS:	APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – GENERAL PRINCIPLES – where the respondent is subject to a soon to expire supervision order – where the applicant applied for a further supervision order – where that application was dismissed at the preliminary hearing – where the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) imposes a threshold test at the preliminary hearing – where the Act requires satisfaction at the preliminary hearing that there are reasonable grounds for believing a prisoner is a serious danger to the community – where the test at final hearing is whether a court is satisfied the prisoner is a serious danger to the community – whether the satisfaction of the preliminary hearing test was conflated with the final hearing test at first instance – whether the Court of Appeal, in applying the preliminary hearing test afresh, is satisfied that test has been met Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 8, s 13 Police Powers and Responsibilities and Other Legislation Amendment Act 2018 (Qld) Attorney-General (Qld) v Fardon [2018] QSC 193, cited Attorney-General (Qld) v Nemo [2018] QSC 202, cited George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited Prior v Mole (2017) 91 ALJR 441; (2017) 343 ALR 1; [2017] HCA 10, cited
COUNSEL:	P J Dunning QC SG, with J B Rolls, for the appellant D O’Gorman SC, with R Reed, for the respondent
SOLICITORS:	Crown Law for the appellant Patrick Thomas Murphy for the respondent