Attorney-General v Francis

[2008] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General v. Francis [2008] QSC 69

PARTIES:

Darren Anthony Francis

(Applicant)

v

Attorney General for the State of Queensland

(Respondent)

FILE NO:

BS 3069 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

11 April 2008 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2008

JUDGE:

PD McMurdo J

ORDER:

Pursuant to section 21(6) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the Applicant is released subject to the supervision order made by Justice Philippides on 7 November 2007.

CATCHWORDS:

DANGEROUS PRISONERS – Supervision orders under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)- breach of order – application for release under section 21(3) pending determination of final application – “exceptional circumstances” under section 21(4)

COUNSEL:

Mr M Cooke QC with Mr Fenton for the applicant

Mr B Farr SC with Mr G Del Villar for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islanders Legal Service for the applicant

Crown Law for the respondent

1. Mr Francis is subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) made on 7 November 2007[1].  It is alleged that he has recently breached a requirement of that order by using cannabis.  A warrant was issued for his arrest under s 20 of the Act and he was arrested on 25 March and brought before the court the next day.  The Attorney-General has filed an application for the rescission of the supervision order and for a continuing detention order in its place.  That application has been set down for hearing on 12 May next. 

   [1][2007] QSC 328.

1. Mr Francis applies pursuant to s 21(3) for an order that he be released pending the final decision on the Attorney-General's application. 

1. By the terms of s 21(4), Mr Francis must satisfy the court that because exceptional circumstances exist, his interim detention is not justified.

1. The Attorney-General's case to be heard next month requires the Attorney to prove that Mr Francis has used cannabis.  The evidence to be relied upon is the results of some random tests of urine samples on 18 and 21 March.  The reliability of those tests is to be challenged at that hearing.  That will require a considerable factual enquiry which is why the parties have asked for several days of hearing to be allocated.  It is not possible to engage in that enquiry within this hearing and it would be inappropriate to do so.  I will act on the basis that, as was conceded for Mr Francis, there is a serious question to be tried that he breached the order by using cannabis, but there is also an apparent  argument that a breach cannot be proved.

1. On his behalf it was argued that the alleged use of cannabis was on any view slight and therefore any breach was not so serious as to warrant his going back into custody.  But in my view that is more a question for the judge…