Harvey v Attorney-General (Qld) - [2014] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

Harvey v Attorney-General (Qld) [2014] QCA 146

PARTIES:

SHANE EDWARD HARVEY
(applicant/appellant)
v
ATTORNEY-GENERAL OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 6420 of 2012
Appeal No 5269 of 2013
Appeal No 9444 of 2013
SC No 1736 of 2006

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeals
Application for Extension of Time

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2014

JUDGES:

Holmes and Fraser JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for an extension of time in Appeal No 9444/13 is refused.

2.   The appeal in Appeal No 6420/12 is dismissed.

3.   The appeal in Appeal No 5269/13 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant has been the subject of continuing detention orders and a supervision order under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) – where the appellant offered no explanation for why he had not previously sought to appeal against the imposition of a condition requiring that he not commit a further indictable offence – where the appellant contended that the provision was ultra vires the DP(SO)A – whether an extension of time to appeal should be granted

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the appellant has been the subject of continuing detention orders and a supervision order under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) – where the appellant appealed against a finding by a trial judge that the appellant had committed an assault occasioning grievous bodily harm – where the appellant was thus in breach of the indictable offence condition of the supervision order – whether the trial judge had erred in his use of what were said to be the appellant's lies told to police – whether the finding that the appellant had committed the offence was against the weight of the evidence or was unreasonable

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent brought an application for a continuing detention order – where the appellant had breached the supervision order – where the appellant had not discharged the onus on him to show that a further supervision order could, despite the breaches, ensure the adequate protection of the community – whether the trial judge gave adequate reasons for his decision to rescind the supervision order and make a continuing detention order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 17, s 22, s 27(1)

Attorney-General for the State of Queensland v Ellis[2012] QCA 182,…

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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Details

Case: [2014] QCA 146
Decision Date: 20 June 2014

CaseChat Overview and Summary

The case of Harvey v Attorney-General (Qld) involved an appellant who was subject to continuing detention orders and a supervision order under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld). The appellant appealed against a finding by a trial judge that he had committed an assault occasioning grievous bodily harm, which resulted in a breach of the indictable offence condition of the supervision order. The Attorney-General brought an application for a continuing detention order due to the appellant's breach of the supervision order. The central legal issues were whether the trial judge had erred in his use of the appellant's statements to the police and whether the finding of the offence was against the weight of the evidence or unreasonable. Additionally, the court had to decide whether the trial judge gave adequate reasons for rescinding the supervision order and making a continuing detention order. Furthermore, the court needed to determine whether an extension of time to appeal should be granted, considering the appellant's lack of explanation for not previously appealing against the condition requiring him not to commit a further indictable offence.

The court carefully considered the evidence and the arguments presented by both parties. In relation to the extension of time to appeal, the court found that the appellant had failed to provide any explanation for the delay, and therefore, refused the application. Regarding the appeal against the finding of the assault occasioning grievous bodily harm, the court concluded that the trial judge had not erred in using the appellant's statements to the police and that the finding was not against the weight of the evidence or unreasonable. The court also found that the trial judge gave adequate reasons for rescinding the supervision order and making a continuing detention order, as the appellant had not discharged the onus on him to show that a further supervision order could ensure the adequate protection of the community.

In light of the above findings, the court dismissed both appeals and refused the application for an extension of time. Consequently, the appellant remained subject to the continuing detention order. The court's decision underscores the importance of providing adequate reasons for decisions affecting an individual's liberty and the need for timely appeals against such decisions.

Orders

Orders of the court

1. The application for an extension of time in Appeal No 9444/13 is refused.

2. The appeal in Appeal No 6420/12 is dismissed.

3. The appeal in Appeal No 5269/13 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Harvey v Attorney-General (Qld) [2014] QCA 146
PARTIES:	SHANE EDWARD HARVEY (applicant/appellant) v ATTORNEY-GENERAL OF QUEENSLAND (respondent)
FILE NO/S:	Appeal No 6420 of 2012 Appeal No 5269 of 2013 Appeal No 9444 of 2013 SC No 1736 of 2006
DIVISION:	Court of Appeal
PROCEEDINGS:	General Civil Appeals Application for Extension of Time
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2014
JUDGES:	Holmes and Fraser JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for an extension of time in Appeal No 9444/13 is refused. 2. The appeal in Appeal No 6420/12 is dismissed. 3. The appeal in Appeal No 5269/13 is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant has been the subject of continuing detention orders and a supervision order under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) – where the appellant offered no explanation for why he had not previously sought to appeal against the imposition of a condition requiring that he not commit a further indictable offence – where the appellant contended that the provision was ultra vires the DP(SO)A – whether an extension of time to appeal should be granted CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the appellant has been the subject of continuing detention orders and a supervision order under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) – where the appellant appealed against a finding by a trial judge that the appellant had committed an assault occasioning grievous bodily harm – where the appellant was thus in breach of the indictable offence condition of the supervision order – whether the trial judge had erred in his use of what were said to be the appellant's lies told to police – whether the finding that the appellant had committed the offence was against the weight of the evidence or was unreasonable CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent brought an application for a continuing detention order – where the appellant had breached the supervision order – where the appellant had not discharged the onus on him to show that a further supervision order could, despite the breaches, ensure the adequate protection of the community – whether the trial judge gave adequate reasons for his decision to rescind the supervision order and make a continuing detention order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 17, s 22, s 27(1) Attorney-General for the State of Queensland v Ellis[2012] QCA 182,…