Bickle v Attorney-General

Case [2015] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION:

Bickle v Attorney-General for the State of Queensland [2015] QCA 263

PARTIES:

STEVEN SHANE BICKLE
(appellant)
v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 4273 of 2015
SC No 846 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2015] QSC 64

DELIVERED ON:

8 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2015

JUDGES:

Fraser and Philippides JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed.
CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the appellant was subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the order expires on 18 May 2016 – where the appellant applied for a declaration he was no longer a serious danger to the community and an order that the supervision order be discharged – where the primary judge found that the risk of the appellant committing a serious sexual offence was low – where, despite this finding, the primary judge refused to make the requested order – where the primary judge held that there was no power under the Act to discharge a supervision order – where the appellant argued that the power to terminate a supervision order is found in s 48 of the Constitution of Queensland 2001, the inherent jurisdiction of the Supreme Court or r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the Supreme Court has the power to shorten the duration of a supervision order – whether the Supreme Court has the power to discharge a supervision order

HIGH COURT AND FEDERAL COURT – THE FEDERAL JUDICATURE – NATURE AND EXTENT OF JUDICIAL POWER – CONFERRAL ON STATE COURTS – where the appellant argued, in the alternative, that if the Supreme Court did not have the power to discharge a supervision order it was unconstitutional – where the High Court of Australia held in Kable v Director of Public Prosecutions (NSW) that State legislation that purports to confer upon a State court a power or function which substantially impairs the court’s institutional integrity is constitutionally invalid – where the appellant argued that the Act required the Supreme Court to maintain a declaration that is not true, contrary to the Court’s own finding – whether the reasoning and logic of the Supreme Court contradicted the supervision order – whether the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was unconstitutional

Constitution of Queensland 2001, s 48
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 13, s 15, s 16, s 18, s 19, s 20, s 21, s 22
Uniform Civil Procedure Rules 1999 (Qld), r 668

Attorney-General v Hansen [2006] QSC 35, cited
Attorney-General for the State of Queensland v Bickle [2006] QSC 130, related
Attorney-General for the State…

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AGLC
Bickle v Attorney-General [2015] QCA 263
Case
[2015] QCA 263
Decision Date

CaseChat Overview and Summary

The case of Bickle v Attorney-General involved the appellant, who had been subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The order was set to expire on 18 May 2016. The appellant applied for a declaration that he was no longer a serious danger to the community and sought an order to discharge the supervision order. The primary judge found that the risk of the appellant committing a serious sexual offence was low but refused to discharge the supervision order, holding that there was no power under the Act to discharge such an order. The appellant argued that the power to terminate a supervision order could be found in section 48 of the Constitution of Queensland 2001, the inherent jurisdiction of the Supreme Court, or rule 668 of the Uniform Civil Procedure Rules 1999 (Qld).

The central legal issues were whether the Supreme Court has the power to shorten the duration of a supervision order and whether it has the power to discharge a supervision order. The appellant also argued, in the alternative, that if the Supreme Court did not have the power to discharge a supervision order, it was unconstitutional. The court had to determine if the reasoning and logic of the Supreme Court contradicted the supervision order and whether the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was unconstitutional. The High Court of Australia had previously held in Kable v Director of Public Prosecutions (NSW) that State legislation that substantially impairs the institutional integrity of a court is constitutionally invalid.

The court found that both questions should be answered in the negative and dismissed the appeal. The primary judge had correctly determined that there was no power under the Act to discharge a supervision order. The reasoning and logic of the Supreme Court did not contradict the supervision order, and there was no constitutional defect in the Act. The appeal was dismissed, and the supervision order remained in effect until the expiration date of 18 May 2016.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons both questions should be answered in the negative and the appeal should be dismissed.Decision of the primary judge The primary judge summarised the circumstances in which the supervision order against the appellant was made.[2] From about 1988 until the appellant was incarcerated in 1992 he committed sexual offences against adolescent and pre-adolescent children. The appellant committed those offences at a time when he was under significant interpersonal stresses and while he was a step-parent or de facto parent of the complainants. For those offences the appellant was sentenced to imprisonment for a total period of 13 years and nine months. Whilst imprisoned the appellant completed courses which were designed to address the issues giving rise to his offending. The judge who made the supervision order in 2006 considered that a risk that the appellant would re-offend would arise if he was released without appropriate constraints and support, and particularly if he abused alcohol or other substances or experienced stress when he had access to children, particularly pre-pubertal girls in a family situation.[2]Attorney-General for the State of Queensland v Bickle [2006] QSC 130. The supervision order stated that it would remain in effect until 18 May 2026. In 2008 a judge in the Trial Division ordered amendments to the supervision order, including an amendment which substituted 18 May 2016 for the original end date of 18 May 2026. The judge who ordered the amendments referred to expert evidence given by psychiatrists. Professor Nurcombe considered that at the end of 10 years the appellant’s risk of re-offending would be “infinitesimal”, largely because of the appellant’s age. Similarly, Dr Harden accepted that a 10 year supervision order was sufficient to adequately protect the community. The judge preferred Professor Nurcombe’s evidence that an emphasis upon the restrictions of the supervision order would be counter-productive for the respondent’s rehabilitation and explained the reason for the amendment in the following passage:“Mr Hunter submitted that it was inappropriate that a hearing brought about by the respondent’s breach should be productive of a reduction in the time that the order operates upon him. This is to see such an order as in some way punitive. The only justification for making an order of the kind contemplated by Division 3 is the protection of the community and the facilitation of the rehabilitation of the respondent. The two years during which the respondent has been subjected to the order demonstrates that the risk to the community may be addressed with a reduced period. That reduction will positively, facilitate the respondent’s rehabilitation. I am persuaded that the opinion, particularly of Professor Nurcombe, and not dissented from by Dr Harden, together with the period of supervision without breach, dictates that the duration of the order should be reduced from 20 to 10 years.”[3][3]Attorney-General for the State of Queensland v Bickle [2008] QSC 211 at [15].

Ratio Decidendi

Legal Principle Established

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