ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant/respondent) v MARK RICHARD LAWRENCE (respondent/appellant)
FILE NO:
Appeal No 10696 of 2008 SC No 7468 of 2007
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
24 April 2009
JUDGES:
Muir and Chesterman JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
The appeal is dismissed
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the appellant was subject to a continuing detention order pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) – where the primary judge made a continuing detention order – whether the court had the power to make such an order – whether such an order was unconstitutional
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – where appellant argued that supervision order would suffice – whether primary judge appreciated the seriousness of the order – whether primary judge reversed the onus of proof as required by s 13(7) of the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld)
P E Smith for the appellant J B Rolls for the respondent
SOLICITORS:
Volk Lawyers for the appellant Crown Law for the respondent
MUIR JA: I agree with the reasons of Chesterman JA and with the order he proposes save that I would prefer not to address questions of onus of proof.
Paragraphs [37] to [43], in particular, of Chesterman JA’s reasons show that the outcome of the appeal turns on no nice questions of onus of proof.
CHESTERMAN JA: On 3 October 2008 Fryberg J ordered that the appellant, Mark Richard Lawrence, be detained in custody for an indefinite term for control. The order was made on the application of the Attorney-General, pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”).
The appellant asks that the order be set aside and that instead he be released from custody subject to a supervision order, pursuant to s 13(5)(b) of the Act. The appellant did not suggest what requirements are appropriate for his release. He seeks an order pursuant to s 43(2)(d) of the Act that that inquiry be remitted to a judge of the Trial Division for determination.
The appellant…
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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AGLC
Attorney-General v Lawrence [2009] QCA 136
Case
[2009] QCA 136
Decision Date
CaseChat Overview and Summary
The matter before the court was an appeal brought by the appellant, the Attorney-General, against the decision of the primary judge to issue a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The appellant argued that the primary judge erred in law by issuing a continuing detention order when a supervision order would have sufficed, and that the order was unconstitutional. The court was required to determine whether the primary judge had the power to issue such an order, and if the order was constitutional.
The court found that the primary judge did have the power to issue the continuing detention order under the relevant statute. The court was also satisfied that the primary judge had correctly considered the seriousness of the order and did not reverse the onus of proof as required by the statute. The court found that the appellant had not demonstrated any error of law on the part of the primary judge that would warrant interference with the primary judge's discretion.
Having considered the arguments put forward by the appellant, the court found that there was no error of law on the part of the primary judge. The court dismissed the appeal and affirmed the decision of the primary judge to issue the continuing detention order. The court did not make any further orders.