Fardon v Attorney-General for State of Queensland

[2003] HCATrans 533

[2003] HCATrans 533

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B81 of 2003

B e t w e e n -

ROBERT JOHN FARDON

Applicant

and

RODNEY JON WELFORD, ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 9.02 AM

Copyright in the High Court of Australia

MR S.R. SOUTHWOOD, QC:   If the Court pleases, I appear on behalf of the applicant with MR P.D. KEYZER.  (instructed by Prisoners Legal Service Inc)

MR R.V. HANSON, QC:   If the Court pleases, I appear with my learned friend, MS M. MALONEY, for the respondent.  (instructed by Crown Solicitor for Queensland)

GUMMOW J:   Yes, Mr Southwood.

MR SOUTHWOOD:   If the Court pleases, this is a case where it is submitted that there should be a grant of special leave because of the public importance of the issue involved.

GUMMOW J:   Provisionally, and not yet having heard what Mr Hanson has to say, we can both see some force in that, but appeal against what?  It seems to me your task must be to get set aside the order that confines your client, and that order at the moment, I think, is the order of Justice White, is it not?

MR SOUTHWOOD:   It is, at the moment.

GUMMOW J:   Which is an order for indefinite detention.

MR SOUTHWOOD:   That is so, your Honour.

GUMMOW J:   When was that made?

MR SOUTHWOOD:   That order was made I think on 6 November 2003.

GUMMOW J:   Yes, we have been supplied with that.

KIRBY J:   That is still extant.

MR SOUTHWOOD:   It is still extant.

KIRBY J:   That is the order on which your client is, at the moment, being detained.

MR SOUTHWOOD:   That is so.

GUMMOW J:   And that would supplant the earlier interlocutory orders.

MR SOUTHWOOD:   Yes, it does obviously in terms of the applicant’s position at the moment.

GUMMOW J:   That is the order that the gaol‑keeper, or whoever it is, would rely on if asked to justify the detention of your client made with the order of Justice White.

MR SOUTHWOOD:   Quite so, your Honour.

KIRBY J:   It is sustained by her Honour’s obedience to the decision of the Court of Appeal.

MR SOUTHWOOD:   Yes.

KIRBY J:   So you can still challenge the reasoning of the Court of Appeal which sustains that order.

GUMMOW J:   Yes.

MR SOUTHWOOD:   Yes.  May I deal with what your Honours raise?

GUMMOW J:   No, we have not finished yet.  Now, what are the appellate processes, if any, that have been set in motion with respect to Justice White’s order?

MR SOUTHWOOD:   On 4 December a notice of appeal was filed in relation to Justice White’s order.  On 11 December an amended notice of appeal was filed.

GUMMOW J:   Do we have that?

MR SOUTHWOOD:   Your Honours may not have the amended notice of appeal.

GUMMOW J:   I think we only have the original notice.

MR SOUTHWOOD:   Yes, I am in a position to hand up to your Honours as an annexure to an affidavit a copy of the amended notice of appeal.  If your Honours please.

GUMMOW J:   This is to the Queensland Court of Appeal from Justice White’s order.

MR SOUTHWOOD:   This is to the Queensland Court of Appeal.

GUMMOW J:   I see.

MR SOUTHWOOD:   If I could refer your Honours to clause 2(d).

GUMMOW J:   Yes, that raises the constitutional question and, as Justice Kirby says, it implicitly challenges the earlier Court of Appeal decision.

MR SOUTHWOOD:   Yes, it does.

GUMMOW J:   Why is not the appropriate procedure then, if we were so minded, to remove so much of the appeal to the Queensland Court of Appeal as raises ground 2(d).

MR SOUTHWOOD:   Yes, we are in a position to make that application, your Honour.

GUMMOW J:   Let us first hear what Mr Hanson says on the merits of the matter before we get back to the procedure.

MR SOUTHWOOD:   If the Court pleases.

MR HANSON:   Your Honours, we acknowledge in our written outline that the application does raise matters of public importance.  Nonetheless, in our submission, the Court of Appeal has correctly dealt with those matters.  The applicant seems to have two arguments of substance, in our submission.  One is that the legislation has compromised the judicial process and the other is that the legislation is punitive in character.

As to the first, could we point out that the argument ignores how the legislation is working in practice.  You will see from the papers in the application book that there have been other applications by the Attorney, two others have been refused.  Could I just take your Honours through what has happened since this legislation became law just a few months ago.

GUMMOW J:   Yes.

MR HANSON:   Before Justice Muir, the judge at first instance in this matter, you will see from his judgment that he chose to disregard some of the material put before his Honour as he thought being inadmissible, so there was the judicial process working as it usually does.  The matter then came before Justice Philippides on an occasion when there was to be a hearing for a final order.  The prisoner applied for the proceedings to be adjourned and that application was granted, although on our side we suggested that her Honour might embark upon a hearing of some of the evidence and adjourn the matter part heard.  She declined.  So there was an application for an adjournment at the request of the prisoner.

The matter came before Justice Atkinson to extend the interim order that was in place.  On that occasion we were there for three days hearing evidence, including cross‑examination of quite a number of the Attorney’s witnesses, followed by extensive submissions, a reserved judgment and then an order by her Honour extending the interim detention order. 

The matter came before Justice White on an application for final order.  I think we were there for three days.  She refused to receive evidence of one of the court‑appointed psychiatrists on the basis that she thought, after questioning by my learned friend, that he was shown not to be appropriately qualified.  So his evidence was rejected.  There was extensive cross‑examination of the Attorney’s witnesses.  The prisoner himself gave evidence by video link and he was cross‑examined and there were extensive submissions ‑ ‑ ‑

GUMMOW J:   Did he have counsel?

MR HANSON:   Mr Southwood, the same two counsel – extensive submissions, reserved judgment and an order made.  Then, as I have mentioned, Watego, which is in our book of authorities, and Nash, two applications by the Attorney refused by the court, not entirely on the merits but refused because a court was of the view that the notice to the prisoner had been too short, refused on natural justice grounds.

KIRBY J:   That rather suggests that if proper notice is given they will be back seeking the orders.

MR HANSON:   It cannot happen in those two cases, your Honour.

KIRBY J:   It cannot.

MR HANSON:   The Act only applies to prisoners.

KIRBY J:   So they have been released after serving their term.

MR HANSON:   They have gone forever, yes.  The respondent has to be a prisoner ‑ ‑ ‑

KIRBY J:   The fact remains that we have a piece of legislation which, so far as I know, for the first time when a prisoner after a long sentence is approaching the conclusion of the term, imposes a new penalty by order of Parliament, in effect.

MR HANSON:   Can I come to that in a moment, if your Honour please?  That is my friend’s second argument.

KIRBY J:   Yes, and extends the term of punishment indefinitely by a court order, not at the time of the original conviction and sentence, but when the prisoner, having served most of the sentence, is anticipating release and in very open‑ended criteria the judges have to do their duty and, subject to its validity, apply the law, but the challenge is made and the President in the Court of Appeal dissented.  The issue is novel and it does, by concession, raise a matter of public importance.  So why would we not grant special leave?

MR HANSON:   As to the point your Honour is presently dealing with, that the legislation is punitive, our submission is this, that is only part of the question.  Involuntary detention of a subject is punitive, whatever the reason, this Court has said on many occasions.  But that is not the question.  The question is whether it is detention for a reasonably appropriate purpose, as the cases have shown.  Is there a legitimate purpose in the legislation and is the legislation reasonably appropriate to achieve that purpose? 

Your Honour will recall the examples given in the cases, of course, of people who are mentally disturbed, people with infectious diseases, people seeking bail, et cetera.  So that is the inquiry.  It is not just an inquiry as to whether the legislation is punitive.  It is.  There is no denying that, but is it punitive in order to achieve a legitimate purpose, and we say the purpose of course is protection of the community.

GUMMOW J:   Now, does any other State have legislation quite like this?  There was some Victorian legislation, I think, mentioned in the course of argument in Kable.

MR HANSON:   Yes, that was slightly different in that, as part of the sentencing process, it was tacked on.

GUMMOW J:   That is what I thought, yes.

KIRBY J:   It was decided in the Court of Appeal in Victoria and I think that is Marshall’s Case, is it not, or some name like that?  Justice Hayne sat in the Full Court of Appeal.

MR HANSON:   Yes, I think, is it Moffatt, your Honour?

KIRBY J:   Morgan, it might have been.

GUMMOW J:   That is the only other State, is it?

MR HANSON:   Well, we have similar legislation in Queensland, your Honour, for indeterminate detention.

GUMMOW J:   There is nothing in Western Australia resembling this?

KIRBY J:   They tend to follow you in criminal matters.

MR HANSON:   Since 1901.

GUMMOW J:   Yes, very well.

MR HANSON:   In Queensland, of course, we have a slightly different Act.  I am not sure whether it is reflected in other States.  That is an Act that you see mentioned in the President’s judgment, the Criminal Law Amendment Act 1945, which empowers a court to order indeterminate detention of a person who is shown, on the evidence of two psychiatrists, to be incapable of exercising proper control over his sexual instincts. This legislation ‑ ‑ ‑

KIRBY J:   That does involve what the criminologists call the “foresight saga”, the difficulty of anybody looking into the future.

MR HANSON:   In one sense, your Honour, surely the psychiatrist says this man can be expected to carry on because he is incapable of controlling his sexual instincts.

KIRBY J:   I understand that, but if you look at it from the point of view of the Court, the question we always have to ask is, what happens if this becomes a general rule?  Why bother too much about convictions?  You get a conviction and then you have some criterion by which people can just be detained forever and that has not been our tradition.  We have punished people for what they are proved to have done, and proved beyond reasonable doubt.  So I am not saying your point will not be sustained in the end.  If we look at the Kable history, I think, save for one case in the Court of Appeal of Queensland, it has not had many successes and it has had a number of applications.

MR HANSON:   Yes.

KIRBY J:   If special leave is granted, you should both read the argument, if you have not already done so, in Silbert, I think it was, last week which we heard where there was some clarification by Justice McHugh of his thinking on Kable.

MR HANSON:   Yes, we have seen that.

KIRBY J:   But the point is an important point and you have a dissent from the President, indefinite detention of a prisoner who was expecting release by now and concession that it raises a matter of public importance.

MR HANSON:   Yes, that is so.  Might I just respond to one point your Honour mentioned and that is that the Court is called upon to look into the future.  Well, there is nothing novel in that, your Honour.  That is part of the sentencing process in any event.  Sentencing includes ‑ ‑ ‑

KIRBY J:   True, injunctions are granted by judges who look into the future, so we have to do it.

MR HANSON:   Yes.

KIRBY J:   I am not saying the legislation will not be sustained.  The question is, is it important enough for the High Court of Australia to examine?

MR HANSON:   Our simple submission is the majority in the Court of Appeal got it right for cogent and sound reasons.

KIRBY J:   Do you know of any other case, save that decision of the Court of Appeal of Queensland, the other decision that is mentioned in the submissions, where Kable has been sustained?

MR HANSON:   No, your Honour.  That was a very particular piece of legislation, of course, as you will recall.

GUMMOW J:   Kable may nevertheless have had some impact on the enthusiasm of legislators.

MR HANSON:   The Court of Appeal in this case have said that this legislation was obviously written with an eye on Kable.

KIRBY J:   I would hope so.  Mr Keane would be there looking over every word, I would imagine.

MR HANSON:   I do not think I can take the matter any further then, your Honours.  Those are our submissions.

GUMMOW J:   Thank you, yes.  Would you agree that this would be a one‑day case?  It depends the extent to which it attracts intervention by the other States, I imagine, but as between yourselves it would be a one‑day case, would it?

MR HANSON:   We would expect that as between the two of us, certainly within a day.

GUMMOW J:   Yes, thank you. There will be a grant of special leave in this matter, gentlemen. However, we will stand the further process of the matter over before me at 9.30 am on Thursday next, 18 December, if that is convenient, in Sydney for directions for the preparation of the appeal and for the entertainment of any application for removal under section 40 of the Judiciary Act 1903 of so much of the appeal to the Queensland Court of Appeal in matter CA11199/2003 as is raised by ground 2(d) of the amended notice of appeal dated 11 December 2003. Is that clear, gentlemen?

MR HANSON:   If the Court pleases.

GUMMOW J:   So you will have to come up with your documents in order next Thursday.

MR HANSON:   Your Honour, if it is of any assistance to your Honour, the Attorney considered what was conveyed to us over the last few days and he has undertaken to take whatever steps may be necessary to give effect to the order of this Court in the matter pending in the Court of Appeal against the merits.

KIRBY J:   Yes.

GUMMOW J:   Yes, we would not remove the merits.

MR HANSON:   No.

GUMMOW J:   We would only be removing, as it were, the reagitation of the Court of Appeal’s constitutional judgment.

MR HANSON:   As your Honour pleases.

GUMMOW J:   Yes.  Anything else, gentlemen?

MR SOUTHWOOD:   No, your Honour.

GUMMOW J:   Very well, then.

AT 9.18 AM THE MATTER WAS CONCLUDED