Attorney-General v Friend (No. 1)

[2011] QSC 225

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General v Friend [No. 1] [2011] QSC 225

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v  
ROY FRIEND(respondent)

FILE NO:

BS 886 of 2006

DIVISION:

Trial

PROCEEDING:

Applications

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 and 24 June 2011

JUDGE:

Fryberg J

ORDERS:

Application for the adjournment is refused.

CATCHWORDS:

Criminal Law – Sentence – Sentencing Orders – Orders and Declarations Relating to Serious or Violent Dangerous Sexual Offenders – Dangerous Sexual Offender – Generally –
warrant for breach of a supervision order under Dangerous Prisoners (Sexual Offenders) Act 2003, s 20 – application for adjournment – respondent satisfied s 22(2) that on the balance of probabilities adequate community protection under supervision order – delay for psychiatric reports was a relevant consideration

Dangerous Prisoners (Sexual Offenders) Act 2003 ss 20, 22

COUNSEL:

A Scott for the applicant

J Godbolt for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

HIS HONOUR:  I have before me a prisoner who has been brought
before the Court pursuant to a warrant issued under section
20 of the Dangerous Prisoners Sexual Offenders Act 2003. That
Act requires in the circumstance that has occurred, that is
his being brought before the Court on a warrant complaining of
breach of a supervision order, that the Court must either
order that the prisoner be detained in custody until the final
decision of the Court under section 22 or release the
prisoner.  The release may be ordered only if the prisoner
satisfies the Court on the balance of probabilities that his
detention in custody is not justified because of exceptional
circumstances.  No application under that provision has been
made.

Section 22 makes provision for what is to happen if the Court
is satisfied on the balance of probabilities that the prisoner
is likely to contravene or has contravened a requirement of a
supervision order.  It is uncontested, as I understand the
evidence, that the present prisoner has contravened a
supervision order.  That means that under subsection 22(2) the
prisoner must satisfy the Court on the balance of
probabilities that adequate protection of the community can,
despite the contraventions, be ensured by the existing order
as amended under subsection 7 if necessary.  That question
must be resolved in the present proceeding subject, of course,
to any proper adjournments.

In the present case Mr Scott, who has appeared on behalf of
both the Attorney-General, who has a right of appearance under
section 22A of the Act, and of Mr Wilden, the Corrective
Services officer who brought the prisoner before the Court,
has applied for an adjournment.  The purpose of the
adjournment is said to be the obtaining of a further pair of
psychiatric reports from those doctors who previously examined
the prisoner, Professor James and Dr Harden.  Both of those
practitioners provided reports toward the end of last year and
Professor James has provided a supplementary report in March
this year albeit without having further seen the prisoner for
the purposes of that report.

It is submitted that further reports are desirable because on
the medical evidence as disclosed by the evidence orally given
today by Dr Harden and Professor James, there is a possibility
that the psychiatric condition of the prisoner may have
changed.  Professor James conceded explicitly that the events
constituting the breach of the order were not indicative of
any substantial likelihood of a change but he was concerned,
particularly regarding the overall need to keep regular
monitoring of the prisoner, and was reluctant to, himself,
express a further view without a further examination.

Dr Harden, in his letter dated 24 June, conceded that the
events constituting the breach which consist of a very limited
contact with the parents of some young children, would not
necessarily alter the level of risk.  He expressed concern
about the dynamic and acute risk level arising from the
emotional state described in previous reports.  That has
already been taken into account in orders previously made by
the Court.  The circumstances of the breaching are the only
material change on the evidence before the Court which could  provide a foundation for a need for a further examination by the doctors.  Those circumstances are described in Mr Friend’s affidavit and are not challenged by any of the witnesses or makers of statements whose evidence has been put before the Court on behalf of the Attorney-General.  I note in particular that on the adjournment application there has been no application to cross-examine Mr Friend on behalf of the Attorney-General. I infer that nothing in the affidavit is challenged by the Attorney-General.

I am not satisfied that there is any demonstrated need for
further psychiatric examinations having regard to the recency
and number of reports already made by psychiatrists about this
prisoner.  It seems to me that the provision of further
reports is unlikely to have any material effect on the
evidence as it presently stands and is likely to be both
expensive and productive of very substantial delay.  That very
substantial delay would, in fact, amount to six months.

It will be six months before this application can be heard if
it has to be adjourned today.  The reason for that is that
despite the immensely increased work load which the Court has
been given in respect of these applications no additional
resources have been provided to the Court.  The consequence is
that unless other litigants are made to suffer delay, these matters
cannot be brought on speedily.

It seems to me that the consideration that this man would be
retained in custody for six months when the likely outcome is
that at the end of the period the position would be no
different from what it is now, is a relevant consideration in
assessing whether an adjournment should be granted.  The cost,
delay and other matters relating to an adjournment, in my
view, also mean that the application for the adjournment should be refused.