Lawrence v Attorney-General for the State of Queensland

[2009] HCATrans 244

[2009] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B21 of 2009

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, 2 OCTOBER 2009, AT 11.00 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please the Court, I appear with MS S.M. RYAN for the applicant.  (instructed by Legal Aid Queensland)

MR W. SOFRONOFF, QC, (Solicitor-General for the State of Queensland):   If the Court pleases, I appear with my learned friends, MR J.B. ROLLS and MR D.E.F. CHESTERMAN.  (instructed by Crown Law)

FRENCH CJ:   Yes, Mr Smith.

MR SMITH:   Your Honours, can I turn to the first special leave point in this case which deals with the purpose of the Act and the validity of the order.  In Fardon v Attorney‑General (Qld) (2004) 223 CLR 575, the High Court nominated certain features of the legislation which supported its constitutional validity. The two major features were, firstly, the fact that there were annual reviews of continuing detention orders, so that if a Supreme Court judge makes such an order then yearly they come back before the court and the matter is reviewed. Secondly, the stated purpose of detention under the Act is not only protection of the community, but also rehabilitation of the offender which, in the applicant’s submission, is relevant itself to protection of the community.

Your Honours, in this case the learned trial judge recognised that an order for indefinite detention of the applicant for control would mean he could not engage in further treatment to further his rehabilitation.  His Honour specifically found at appeal book page 26, line 51:

From the therapeutic point of view the risk to the community cannot be reduced by his continued detention.  Indeed such detention places at risk the gains which have been made until now.

The applicant’s positional point is that, on the evidence found, my client’s rehabilitation will go backwards so that by the time the review takes place it will be most likely that he will be released because he cannot gain anything more by detention.  Justice Gummow in Fardon at paragraph 113 of the decision, found that if the review was likely to be nothing more than a periodic formality – I am referring to the first passage on page 621 concerning periodic formality:

then invalidity of such legislation may well result.

The applicant says that the finding by his Honour that the desired rehabilitative treatment was not available in gaol but more easily available outside supports this contention that his continued detention puts at risk his rehabilitation and his detention is for control only, not because it is suggested he is out of control but because the relevant therapy is not available in detention.

So the submission by the applicant is that the effect of the order is that it is punitive only and therefore inconsistent with the principles expressed by particularly Justices Callinan and Heydon at 215 of Fardon and Lim v The Minister for Immigration (1992) 176 CLR 1, particularly at pages 27 to 30 and 71.

The issue really is Mr Lawrence submits that the exercise of power is really inconsistent in light of the findings with the exercise of judicial power.  That is his first point, your Honours.  The second point relates to the onus of proof in this case, and to an extent that overlaps the first point.  It is submitted by the applicant that the learned trial judge arrived at the order for control because he did err in the application of the onus of proof here.  In this case his Honour made some important findings in my client’s favour, the first of which appears at page 20, line 32 of the judgment:

I accept that Mr Lawrence has been genuine in his participation in the programs . . . I also accept that . . . they have brought about some improvement in his condition.

He accepted at page 22, line 45, that it was desirable for his rehabilitation that he take part in one‑on‑one treatment, and it was accepted, at point (d), that:

In any event such treatment would more easily be available if Mr Lawrence were released under a supervision order.

At 28, line 45, his Honour found:

I am satisfied that placing him in low security accommodation would not pose an unacceptable risk to the public.  Placing him directly into accommodation in the community would do so.

In the result, his Honour then commenced discussing the onus of proof issues at page 18, line 50, where his Honour, when coming to this issue about whether it should be detention or supervision, found that there was:

a discretion to be exercised having regard to all of the evidence.  In that context it is unhelpful to talk in terms of onus of proof or standard of proof.

FRENCH CJ:   That is right, is it not?  It is a question of what option you look at first, rather than in terms of onus or standard of proof when you are talking about the exercise of a discretion which involves a choice between two kinds of disposition.  I think the Court of Appeal in this case said, did it not, that however he articulated it he approached it on the basis that the control order was the last resort after consideration of a supervision order?

MR SMITH:   They did ultimately decide that, your Honour, but Justice Chesterman at page 45, line 52, did come to the conclusion that the onus was on the Attorney‑General to persuade the court that one or other of the orders should be made and his Honour, correctly in the applicant’s submission, found that he must do that.  At page 46, line 20, in the last two sentences, his Honour found that:

This necessarily involves proving that the community will not be adequately protected by a supervision order.  I would respectfully disagree with the trial judge if, in the passage quoted, his Honour meant to express a different view.

The applicant does rely on what the Court of Appeal found about the onus issue concerning whether it should be supervision or detention, but the heart of the matter really is this, your Honours.  Justice Fryberg found ultimately – and I will just turn up the page, your Honours – page 31, line 42 in the last sentence:

From the evidence which was given by Mr Udemans I suspect that a suitable regime could be put in place at a not unreasonable cost, but I am not prepared so to find.  On the evidence there are too many variables and unknowns.

The applicant’s submission is that when this finding is made there could be such a system, and applying what the Court of Appeal said about the onus, then a supervision order should have been made in Mr Lawrence’s case.  Justice Chesterman found there was no evidence – this is paragraph [38] of his decision on page 48 on the last line:

The evidence did not allow that finding to be made.

That is the one in the previous sentence.  That is where Mr Lawrence joins issue with the judgment.

FRENCH CJ:   What page are you taking us to, Mr Smith?

MR SMITH:   I am taking your Honours to page 48 of the application book and to Justice Chesterman’s finding in the last two sentences there.

FRENCH CJ:   Thank you.

MR SMITH:   That is where the applicant says error occurred because Justice Fryberg did find on the evidence - he suspected a reasonable regime could be put in place for Mr Lawrence.  But then the Court of Appeal said that the evidence did not allow that finding to be made.  That is where Mr Lawrence says the onus is important here.  The applicant says this.  It would be unfair on a person in his position who is in gaol to lead evidence and obtain witnesses about supervision, monitoring and so on.  It would be unfair to allow the Attorney just to simply turn up on these applications and, as it were, put an evidential onus on an applicant to put up what is reasonable about supervision.  The Attorney in these applications brings the application, has the onus to prove supervision or detention, and it should be the Attorney who is required to produce evidence on these topics.

Indeed, your Honours, in a sense, the Court of Appeal in Queensland in Francis’ Case [2007] 1 Qd R 396, seems to accept that to be an approach to be taken in such a case. At 399 at line 40 the court referred to the fact that the primary judge was not satisfied the appellant could be sufficiently supervised in such accommodation to ensure that the conditions necessary for a supervision order would be enforced. In the end he was not persuaded that adequate protection to the community can be achieved by a supervision order, but the court in that regard at page 404, lines 36 to 50, noted:

There was no evidence, however, that the resources required of the department to provide effective monitoring of the appellant’s compliance with the conditions of supervised release would be so extensive that it would be unreasonable to expect them to be provided, or that the effective provision of such resources would be impracticable . . . The Act thus assumes that supervision will be available.  The court should not conclude either that it will not be made available or will not be made sufficiently available in the absence of clear evidence to that effect and an explanation as to why its provision is regarded as unreasonable or impracticable.  There was no reason to conclude that any necessary supervision by the department could not, or would not, be made available.

The applicant relies on that that passage to go back to that finding by Justice Fryberg and make the point to the Court that the government has put in place this very serious regime for dangerous offenders and the government should provide a scheme of supervision and put evidence of that in a clear way before the court to discharge the onus I have referred to.  Your Honours, I think that covers my second point.

The final point, your Honours, relates to the decisions of this Court in Chester v The Queen (1998) 165 CLR 611 and Buckley v The Queen (2006) 80 ALJR 605. The point made by my learned friends is that that involved different legislation. That involved, for example, in Chester’s

Case indefinite detention because a person could not control themselves and Buckley’s Case involved the indefinite sentencing provisions under the Penalties and Sentences Act (Qld). Such penalties or indefinite detention orders are made at the time of sentence.

In this case the court is concerned as to an Act where a person has completed their sentence, they have been punished, they have been given a definite release date and then at the end of their incarceration the Attorney makes an application which in this case had the effect that my client was deprived of his liberty indefinitely.  It is submitted that the principles expressed in both those cases more so apply in this case, that is, it is an exceptional exercise of power and it should be sparingly exercised.

The High Court, in particular Buckley’s Case – and I am referring to paragraph [44] in particular of the decision – held that before a judge takes such an extreme step the power is to be exercised sparingly; there should be a clear appreciation of its exercise.  In this case the trial judge did not apply such principles.  The Court of Appeal thought that the principles did not apply because of the nature of the Act, and the applicant submits that that is in error.  In the circumstances, your Honour, leave should be given on this important question for Mr Lawrence.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Smith.  Yes, Mr Sofronoff.

MR SOFRONOFF:   Your Honours, may I deal with the argument in the order of the grounds of appeal as they appear at page 53 of the application book.  The first ground raises a constitutional point that the Act is invalid in that it permits the detention of persons for control only.  Could I take your Honours to application book page 42 firstly.  As to the argument that the Act does not permit that, that was dealt with by Justice Chesterman in his reasons at pages 42 and 43 at paragraphs [18], [19] and [20], where his Honour pointed out that the terms of the Act expressly, by using the disjunctive “or”, lead to no other conclusion but that an order can be made for the purposes of control or care or treatment of a particular class of prisoner to facilitate their rehabilitation.  In our respectful submission no other construction is reasonably open.

That was the form of the Act when the High Court declared its validity in Fardon.  May I take your Honours to Fardon. It is only necessary in this connection to go to a passage in the reasons of the Chief Justice in (2004) 223 CLR 575 at page 592, where his Honour at paragraph 19 at the top of the page observed:

The Act is a general law authorising the preventative detention of a prisoner in the interests of community protection.

We respectfully submit that that is an accurate general summary of the nature of this law.  In paragraph 20 then his Honour, after making an observation as to why the Court might have been selected as the arbiter for this purpose, went on in the second sentence to say:

Unless it can be said that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court, then it is hard to see the foundation for the appellant’s argument.  As was noted above, there is legislation, in Queensland and elsewhere, providing for sentencing judges to impose indefinite sentences, or sentences longer than would be commensurate with the seriousness of a particular offence, by way of response to an apprehension of danger to the community.  The validity of such legislation, when tested against the Kable principle, was upheld in Moffatt.

What his Honour is talking about there, we respectfully submit, is the element of control about which a contention is raised now; that is to say there might be rehabilitation in the course of the continuing detention of a prisoner or there might not be.  But the potential for rehabilitation might be one full of hope or, as in this case, there might be no hope and one might be surprised in the future to the contrary.  In any event, notwithstanding that the purpose of a particular detention is the protection of the community by incarcerating a prisoner because of the danger that he presents, that does not lead to the unconstitutionality of the legislation.

FRENCH CJ:   Was it the entirety of the Dangerous Prisoners (Sexual Offenders) Act which was under challenge in Fardon or just particular provisions?

MR SOFRONOFF:   Your Honour, at page 576 in the summary at the foot of the page, about 10 lines up:

Fardon appealed from that decision to the Court of Appeal of the Supreme Court and in that appeal also challenged the validity of s 13. On 23 September 2003 the Court of Appeal . . . held that ss 8 and 13 were valid.

Section 8, your Honours, is the section which authorises a court which if:

satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community . . . set a date for a hearing –

so that is the preliminary remand hearing, we can call it, and section 13 of course, is the key provision which contains the matters of which a court must be satisfied before making any order, and it contains the major criterion in subsection (2):

A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence –

Section 3 of the Act which provides for the objects, contains in subclause (b) the object:

to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.

FRENCH CJ:   It is really section 13(5) we are concerned with, of course, but you say the whole of section 13 is under challenge?

MR SOFRONOFF:   Yes.

FRENCH CJ:   Albeit in the context of that particular appeal on the particular order that had been made?

MR SOFRONOFF:   Yes, quite, and if one needs more support for the proposition that the issue of control, in the sense that their Honours in Fardon were discussing preventative detention in the context of Chapter III, that control lay at the heart of the case, one can also see from the reasons of Justice McHugh at 597 at about point 6 of the page, his Honour said:

Fifthly, the Act is not designed to punish the prisoner.  It is designed to protect the community against certain classes of convicted sexual offenders who have not been rehabilitated during their period of imprisonment.

Then at page 620 in the reasons of Justice Gummow, at paragraph 112, after referring to the requirement for review, in the fourth line:

That which is affirmed under s 30 is the primary decision “that the prisoner is a serious danger to the community in the absence of a division 3 order” . . . The phrase “is a serious danger” involves the use of the continuous present to require a decision that, by reason of the attainment of satisfaction by the means and to the degree specified in s 30(3), the prisoner presently is a serious danger to the community –

and then when his Honour goes on to consider the process of review and what is involved, three lines from the foot of the page:

However, what is vital for Pt 3, and thus to the validity of the Act, is the requirement that the regular “review” does not, with the passage of time, become no more than a periodic formality; if the exercise in which the court was involved had been permitted by the legislation to lose its requirement for deeply serious consideration upon specified criteria and to a high degree of satisfaction, then invalidity of such legislation may well result.

So one sees ‑ ‑ ‑

FRENCH CJ:   That requires consideration of the legislation.  It is not a question of what might happen down the track as a matter of fact.  It is a question of what the legislation requires the Court to do upon review.

MR SOFRONOFF:   Quite, your Honour, but my purpose in taking your Honours to those passages is that one can see from paragraph 112 that what is at the heart of the consideration of his Honour in this part, and indeed in the whole of the judgment, is whether legislation, the purpose of which is to incarcerate a person for a further 12 months, merely for the purpose of controlling that person so that that person does not re‑offend, is valid or invalid legislation, and the answer was in the affirmative.  Hence, in our respectful submission, there is nothing in the point that this particular applicant was detained, notwithstanding that Justice Fryberg and the Court of Appeal concluded that the prospects for rehabilitation were nonexistent. 

The third point, your Honours, in paragraph 4 at page 53 of the appeal book, the notice of appeal, relates to the onus of proof.  It is true that the reasons of Justice Fryberg could be read as if his Honour – and I should proceed upon the footing that they should be read – as if his Honour concluded that while the onus is upon the Attorney‑General to satisfy the Court upon an application that the prisoner would be a serious danger to the community if released, the question of whether to make a supervision order, a detention order or no order was not the subject of such an onus upon the Attorney‑General.

That point was argued before the Court of Appeal.  If your Honours go to page 44, at the foot of page 44 in paragraph [25], Justice Chesterman began to consider that point as to whether Justice Fryberg had reversed the onus of proof.  After setting out the passage in the reasons about which complaint was made – and your Honours will see that at the top of page 45 – the last two sentences were the troubling ones where his Honour said:

In my judgment s 13(5) confers a discretion to be exercised having regard to all of the evidence. In that context it is unhelpful to talk in terms of onus of proof or standard of proof.

His Honour then adverted to the provisions of the Act.  Then at the foot of the page, paragraph [30], stated in unmistakable terms that the onus does lie upon the Attorney‑General in satisfying a court whether an order should be made, having gotten to that point by having satisfied the court that the prisoner is a serious danger, that is to say, there is a two‑step process and the Attorney bears the onus in each.

Having stated it in paragraph [30] for the first time his Honour then restated it in [31], five lines from the foot of 31:

there is an onus on him to prove that that is the appropriate order.

His Honour then restated it in [33] in the third line:

the burden of proving the contention is on the Attorney.  The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of the supervision order is demonstrated.

So that is a fourth time.  In the last two lines of that paragraph:

It means only that the evidence put before the Court must satisfy it that a supervision order will not afford adequate protection.

That can be regarded as a fifth occasion.  Finally, his Honour repeated it at the foot of page 46:

If the Attorney‑General argues for an exercise of the discretion that will keep a prisoner in gaol, it is consistent with legal orthodoxy and consonant with the seriousness of the consequences for the prisoner that the Attorney‑General bear the onus of proving that the order should be made.

So all of their Honours agreed with the reasons of his Honour.  Then his Honour, of course, had to turn then to the question whether a wrong decision had been made below by reason of any wrong process of reasoning and his Honour turned to some passages in the trial judge’s reasons at page 47.  Then over at page 48 at the top of the page, second line, said:

The clear thrust of the judgment is that there was a high risk that the appellant would commit a violent sexual offence if released unsupervised.  There was then an investigation of whether supervision would reduce the risk to acceptable limits.  The evidence did not allow that finding to be made.

The logical process was impeccable –

Would your Honours note the next sentence –

It follows precisely the course it would have if the judge had thought that the Attorney bore the onus of proving that a supervision order would not afford adequate protection.  That was the only question to be determined.  Unless the answer was favourable to the appellant, whoever bore the onus of proof, the order made was the correct one.

His Honour then dealt with some of the evidence and at the foot of the page, if your Honours go to paragraph [42], Justice Fryberg raises three matters that needed to be considered:  how he would be supervised, where and how he would be accommodated and how and where he would be employed and his Honour Justice Chesterman then went on at the foot of the page:

He noted that the appellant would need to be supervised by an escort whenever he left his accommodation in which he would have to be, in effect, confined.  He referred to Dr James’ testimony that it would be nigh on impossible to put sufficient restrictions on the appellant to ensure that he did not avoid his escort/supervisor and go alone into the community.

His Honour then quoted another passage and at paragraph [43] concluded:

The appellant would need intense supervision amounting to constant escort if released from custody.  His accommodation would have to be such that he was confined in it whenever he was not in the presence of the escort.  The impracticability of the arrangement needs no elaboration.  The finding that a continuing detention order was necessary –

that is the positive finding discharging the onus -

for adequate public protection did not come from any mistake as to the burden of proof.  The appellant did not attempt to show it to be wrong on any other basis.

So in short, if there were a question to be determined by this Court as to whether the onus lay upon the Attorney, it has been determined by unanimous Court of Appeal in favour of the contention for which our learned friends contend.  The Court of Appeal concluded that applying the statute in that way the order was rightly made.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Sofronoff.  Yes, Mr Smith.

MR SMITH:  Your Honours, my learned friend referred to Justice McHugh’s judgment at page 597 of Fardon v Attorney‑General at about point 6. His Honour did go on to say, and it seemed to me to be relevant to his decision, that the objects of the Act were in section 3. Your Honours may see that whilst section 13 refers to the disjunctive, the objects include “and” before subparagraph (b) which specifically includes the words “to facilitate their rehabilitation”.

Your Honours, my learned friend suggested that there were no prospects of rehabilitation from my client.  The applicant does not agree with that and there are findings favourable to him by Justice Fryberg.  There appears to be a concession made that the onus of proof by Justice Fryberg was not correctly dealt with.  The applicant submits that is a material irregularity and there ought to have been a rehearing or a remittal to deal with the matter with the correct onus applied in this case.

Finally, your Honours, in effect my learned friend sought to say well, really this is a proviso case, if I can use the criminal expression.  But, as I pointed out to the Court in submissions, his Honour did find he suspected a reasonable regime could be put in place, so the proviso is not applicable in this case.  They are my submission in reply, your Honour.

FRENCH CJ:   Thank you very much, Mr Smith. 

On 3 October 2008, a judge of the Supreme Court of Queensland made an order under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the applicant be detained in custody for an indefinite term for control. The Court of Appeal dismissed an appeal against that order.

The applicant had served a sentence of seven years for rape and sexual assault with a circumstance of aggravation, which sentence expired in February 2008.  He had previously served a term of 15 years imprisonment for unlawful killing.  The trial judge found that he would be a serious danger to the community if released without an order being made under the Act.  The alternatives open to the trial judge were to make a continuing detention order, a supervision order or no order. 

The applicant contended that insofar as the Act permits persons to be detained for control only, it is inconsistent with Chapter III of the Constitution and invalid. In our opinion, that contention is foreclosed by the decision of this Court in Fardon v Attorney‑General for Queensland (2004) 223 CLR 575.

The applicant also complained that the trial judge failed to apply the principles enunciated by this Court in Buckley v The Queen (2006) 224 ALR 416 and in Chester v The Queen (1988) 165 CLR 611. As the Court of Appeal properly pointed out, neither of those cases was concerned with the Queensland statute and each was distinguishable.

The applicant also contended that the trial judge erred in failing to place upon the Attorney‑General the onus of demonstrating that a detention order should be made, rather than a supervision order.  Whatever the infelicities of the trial judge’s discussion of onus, the Court of Appeal found that he approached the matter of determining which order should be made in the way it should have been approached, that is to say by, in effect, determining the impracticability of a supervision order before considering a detention order.

None of the matters raised on behalf of the applicant show an error in the approach taken by the Court of Appeal in this case which would warrant the grant of special leave.  Special leave will be refused.

AT 11.37 AM THE MATTER WAS CONCLUDED