Lawrence v Attorney-General for the State of Queensland

[2012] HCATrans 247

[2012] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B29 of 2012

B e t w e e n -

MARK RICHARD LAWRENCE

Applicant

and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 OCTOBER 2012, AT 12.18 PM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please the Court, I appear with MS K.M. HILLARD for the applicant, Mr Lawrence.  (instructed by Fisher Dore Lawyers)

MR P.J. DAVIS, SC:   I appear with MR J.B. ROLLS for the respondent, your Honours.  (instructed by Crown Solicitor (Qld))

MR SMITH:   Your Honours, I seek an extension of time within which to file the application for leave.

FRENCH CJ:   Is that opposed?

MR DAVIS:   Not opposed, your Honour.

FRENCH CJ:   Yes, very well.  The extension is granted.  Yes, Mr Smith.

MR SMITH:   Thank you, your Honours.  Your Honours, the two special leave questions Mr Lawrence seeks to raise in this case are firstly the extent to which the findings or report by the UNHCR concerning the Fardon Case is relevant to the exercise of a discretion under the dangerous prisoners legislation, and the second aspect is the extent to which an intermediate Court of Appeal could in such a matter interfere with the findings of a judge of the trial division when one is concerned with this legislation. Your Honours, can I firstly take your Honours to section 43 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and ask your Honours to note that section 43(1) provides:

An appeal is by way of rehearing.

But, subsection (2)(b) enables the Court of Appeal to:

draw inferences of fact, not inconsistent with the findings of the court; and –

it must be that the court is the court below, not the Court of Appeal.  The reason I wanted to refer to that provision, your Honours, is that in the judgment of the court allowing the Attorney’s appeal – and if I could take your Honours to the three grounds of appeal relied upon below.  This is at page – sorry, I am just turning up the page of the summary of the arguments - page 82 of the appeal book.  It was seen in Ground 1 at line 48 that:

the primary judge erred in giving undue credence to the respondent’s evidence and in concluding that Dr Lawrence . . . had not provided any convincing basis for her view that the respondent’s statements concerning his condition could not be relied upon and, in consequence of that finding, not relying on that opinion by Dr Lawrence –

The second ground which was upheld was there was a miscarriage of the exercise of the discretion because of:

Professor Nurcombe’s opinion as to the uncertainty of the permanency of the changes in the respondent’s sexual and sadist urges which he claimed to have occurred.

In respect of Ground 1, your Honours, that was considered by the court, and at page 98, at line 41, after an examination of the evidence it was determined:

the primary judge did err in concluding that the respondent’s “statements about his current condition” should be accepted.

Their Honours criticised the manner in which his Honour below had made the findings.  The reason I point to this, your Honours, is this.  I have set out in the authorities the case of Gronow v Gronow which is the Family Court decision from the High Court back from the 1970s, which establishes principles of the importance of the advantage a trial judge has when seeing witnesses give evidence in difficult matters.  And, taking into account 43(2)(b), I am submitting that there was really an error by the Court of  Appeal in finding contrary to the finding of fact of the respondent’s credit by the trial judge.

KIEFEL J:   It was not so much credibility as reliability in terms of an objective assessment of the sometimes contradictory statements that he made to the various psychiatrists.

MR SMITH:   True, it is, your Honour.  But, his Honour did examine those issues and his Honour noted Mr Lawrence was not an overly intelligent fellow which would explain many of the contradictions.  He also relied on the consistency of accounts given to Professor Nurcombe who, incidentally your Honours, had been one of the reporting psychiatrists back at the decision stage before Justice Fryberg and had also given reports in the matter before Justice Peter Lyons. 

But, I do take your Honour’s point about that but what I am really submitting, your Honours, is that his Honour did below at least did carefully analyse the carefully reasoned judgment all of those matters, and was entitled to alter the plea after having seen Mr Lawrence be cross‑examined and take into account what he had said previously, that his statements about his current condition should be accepted.

KIEFEL J:   It was the case, was it not, that neither Dr Nurcombe nor Professor Morris really questioned the account given by Mr Lawrence on the critical issue which was as to whether his condition had changed in recent times and his control had improved.  And, it was only Dr Lawrence that really challenged that question and his general reliability.

MR SMITH:   I think it is fair to say, your Honour, that Professor Nurcombe was not wholly on Mr Lawrence’s side.

KIEFEL J:   No, but his opinion of a lower risk of recidivism depended upon an acceptance of Mr Lawrence’s account to him, did it not?

MR SMITH:   That is true.

FRENCH CJ:   Further than that, looking at paragraph [79] at page 106, this is the way in which the court is approaching the primary judge’s treatment:

the primary judge’s assessment of Professor Nurcombe’s evidence failed to have due regard to the basis on which the Professor’s opinions were expressed . . . dependent on the acceptance of the respondent’s assertions about there being no continuing sadistic sexual fantasies and impulses.

Then the last sentence:

Should the fantasies and impulses be continuing or should they re‑emerge, Professor Nurcombe would rate the risk of re‑offending as high.

So, it is an examination of the interaction between Professor Nurcombe’s, if you like, the stability of Professor Nurcombe’s conclusions and the material upon which he was operating.

MR SMITH:   I agree.  Although, what I say about that – because Ground 2, of course, was upheld by the Court of Appeal and the ground was, in essence, failing to have due regard to those matters referred to in [79] and, in particular, [81].  The finding was the Attorney had demonstrated an error by the primary judge in failing to appreciate the basis of the opinion. 

But, if one goes back to [61], line 45, where Justice Lyons below referred to Professor Nurcombe’s evidence, his Honour did take into account that – and this is at about line 48, your Honours – although Mr Lawrence believed he had changed, Professor Nurcombe remained in some doubt whether the changes were durable, and then he referred to the cross‑examination about the recent good conduct and lack of offending and so forth.  So, the reason I have taken your Honours to that passage is that was really the second error, as it were, my client wishes to rely upon.  That is, there was no failing to appreciate the basis of Professor Nurcombe’s opinion.

KIEFEL J:   Critically, was it not a critical aspect of the primary judge’s decision to exclude the evidence of Dr Joan Lawrence on basis that he did not consider that she had provided a convincing basis for her refusal to accept his account as reliable.  It is the exclusion of that evidence which is the critical factor because if there was a basis for Dr Lawrence’s opinion it remains evidence before his Honour which his Honour would have been obliged to take into account, and it was evidence which supported the Court of Appeal’s final decision.

MR SMITH:   Certainly, your Honour, that was his Honour’s finding, which was found to be an error.  But, it was not that his Honour failed to take into account all of the matters relating to Dr Lawrence’s evidence.  It was his impression after having heard ‑ ‑ ‑

KIEFEL J:   Well, on the critical question of her refusal to accept Mr Lawrence as a reliable narrator of his own condition.

MR SMITH:   Yes.  I accept that was a key issue here.  But really, what I was submitting to your Honours is that Justice Lyons, in the carefully reasoned judgment, did analyse all matters and was entitled after having seen the witnesses give evidence to form a view about whether or not a negative view expressed about Mr Lawrence should be accepted.  But really, it came down to at the end of the day whether you believed Mr Lawrence’s statements, and he gave evidence about them and was cross‑examined, which was a finding of fact his Honour made, and he had that unique advantage having heard him and to ‑ ‑ ‑

KIEFEL J:   But, this is evidence given by a person who suffers a particular mental state and the view that a judge is going to take of such a person is going to be strongly influenced by professional opinion as to how much that state actually impinges upon the person’s ability to give a reliable account.

MR SMITH:   That is true, your Honour.  His Honour did not blandly accept Mr Lawrence’s evidence though.  For example, at page 67 of the record book his Honour at line 20 noted the “significance” of his:

accounts of his current condition; and generally of the reliability and honesty of his statements to the psychiatrists –

He talked about “inconsistency” at paragraph [101] but ultimately made the important factual findings at [102].  That finding at [102] led in to the finding about Dr Lawrence’s evidence at [103].  So really, on this first point, your Honours, which is the advantage his Honour had and whether the court could make inconsistent findings with his findings there was – and even if one disagrees in light of Mr Lawrence’s past history or is very sceptical about it, his Honour had that advantage and was able to make those findings which the Court of Appeal did not.

KIEFEL J:   The Court of Appeal lists approximately, I think, seven major matters which objectively must have suggested strongly that his account could not be taken as reliable.  I think that appears at paragraph [41] onwards. 

MR SMITH:   Yes, your Honour.

KIEFEL J:   His denial to Dr Lawrence of sexual assaults on children, evidence of his deceit of others and distortion of the truth, his accounts of whether his fantasies ceased for which Dr Lawrence was sceptical and she gave reasons for that, inconsistencies in his history and so on.  I mean, these are all objective matters, they do not depend upon a view of someone in the witness box which I think generally is regarded these days as somewhat overstated, particularly in matters like this.

MR SMITH:   On the sexual offences, for example, there was no clear evidence led that they were sexually related.  In fact, Justice Fryberg back in 2008 noted no evidence had been led by either party about the nature of those offences.  There were no sort of what are called QP9 forms, your Honour, which summarise facts which could be placed before the court to explain whether they were or not.

KIEFEL J:   I think the Court of Appeal drew an inference by reference to the sentences – the length of the sentences.  They would not have been just general assaults, would they, with those sentences?

MR SMITH:   Well, your Honour may remember in the old days if a child was assaulted, by whatever means, it was an aggravated assault because of the age of the child, and he was a fairly young man at the time.  It was back in 1978 and was given admonishment and discharge.  That was a Children’s Court matter on the first one and probation on the next two – I am referring to page 2 and 3 of the record book, your Honours – a minor fine on the one in 1980. 

So it was fairly hard to draw inferences where penalties at the lower end of the spectrum had been given, I would submit.  That fact, that is whether they were sexual or not, seemed to feature reasonably highly in the Court of Appeal judgments, when analysing the subjective factors your Honour referred to.

FRENCH CJ:   I notice incidentally that it said at page 99 at [53] that in Dr Lawrence’s opinion:

it was unlikely that the fantasies and urges would have ceased entirely.

was unchallenged.

MR SMITH:   I see that, your Honour, and I am just trying to think of what was meant by that, whether it was in the sense of cross‑examination or in the sense of other evidence?  Although I do note this:  I think Mr Lawrence himself conceded that he might have such fantasies but adopted mechanisms of avoiding them like distracting himself and so forth, which were things that he had been taught in this high intensity sexual offenders’ program course, but I do note what your Honour says there. 

But, your Honours, in terms of my time issue, I think that is as much as I can say about that point at this stage.  If I could briefly address your Honours about the other point.  Your Honours, in the material we have delivered down – I think I have one minute left, your Honours.

FRENCH CJ:   I think you do.

MR SMITH:   Briefly stated, in Queensland, your Honours, the Court of Appeal in Yeo v Attorney‑General (2012) 1 QdR 276 held that whilst of course Fardon governs the situation and Article 9 of the covenant cannot overrule unambiguous requirements of the Act, nonetheless it is appropriate to take Article 9 into account in the exercise of the discretion and I would submit ‑ ‑ ‑

KIEFEL J:   The question is whether it is obligatory, is it not, when it is not part of the law of Queensland.

MR SMITH:   That is a question, your Honour.  I note that section 13(4) of the Act has what is called a so‑called “checklist” of matters which the Court must take into account.  The last matter is the Court must take into account any other relevant matter, and really the Article 9 point picks up what the Court of Appeal here said in Attorney‑General v Francis (2007) 1 QdR 396, where the court held that – this is at page 405 – that because the:

intrusions of the Act . . . are exceptional –

then preference ought be given to supervision as distinct from the continuing detention order.  What I am really submitting to your Honours is that we have a finding that there is arbitrariness involved with the implementation of this Act by an important body, in respect of a convention to which Australia is a party.  Because of the exceptional nature of the power to detain someone indefinitely, of course subject to reviews, there should be a preference towards supervision.

Justice Lyons considered this issue in making the supervision order. It was not considered by the Court of Appeal. It was referred to in written submissions made to the court. They re‑exercised the power under section 43 and the court ought to have given regard to that principle. They are my submissions, your Honour.

FRENCH CJ:   Thank you, Mr Smith.  We will not need to trouble you, Mr Davis. 

The applicant for special leave was the subject of an order made on 3 October 2008 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), that he be detained in custody for an indefinite term. The applicant had a history, commencing in 1978, of sexual assaults upon children, young women and fellow prisoners. Upon a review in October 2011, Justice Peter Lyons rescinded that order. Although finding that the applicant was a serious danger to the community, his Honour ordered that he be released subject to conditions including supervision.

The Court of Appeal allowed an appeal from that decision, set aside the order made by the primary judge and ordered that the initial order of detention be affirmed.  At issue before the primary judge was the reliability of the applicant’s account of the improvement in his condition.  This had been the subject of a strongly negative assessment by one of the psychiatrists who gave evidence.  The Court of Appeal gave detailed reasons as to why, objectively, his Honour’s findings in favour of the applicant were erroneous.  We see no reason to doubt the correctness of the Court of Appeal’s reasoning. 

The applicant’s other ground relied upon a view that an order for indefinite detention may constitute a breach of Article 9(1) of the International Covenant on Civil and Political Rights.  It suffices to observe that the covenant is not part of Australian law, albeit it may inform the construction of domestic statutes.  In particular, it does not give rise to a mandatory relevant consideration in this case.  The application for special leave is refused. 

The Court will now adjourn to reconstitute.

AT 12.41 PM THE MATTER WAS CONCLUDED