Pollentine & Anor v Bleijie & Ors

[2014] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 2013

B e t w e e n -

EDWARD POLLENTINE

First Plaintiff

ERROL GEORGE RADAN

Second Plaintiff

and

THE HONOURABLE JARROD PIETER BLEIJIE ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

First Defendant

JOHN FRANCIS SOSSO, DIRECTOR‑GENERAL, THE DEPARTMENT OF JUSTICE AND ATTORNEY‑GENERAL

Second Defendant

THE CHIEF JUDGE AND JUDGES OF THE DISTRICT COURT OF QUEENSLAND

Third Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 17 JUNE 2014, AT 10.14 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with my learned friends, MS K.L. WALKER and MR R.W. HADDRICK, for the plaintiffs.  (instructed by Prisoners’ Legal Service Inc)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MR G.J.D. DEL VILLAR and MR J.A. KAPELERIS, for the defendants.  (instructed by Crown Law (Qld))

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS N.M. SCHWARZ, on the instructions of the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   If it please your Honours, I appear with my learned friend, MR J.D. BERSON, for the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor (WA))

FRENCH CJ:   Mr Donaghue.

MR DONAGHUE: Your Honours, the first plaintiff, Mr Pollentine, is now 55 years old, and the second plaintiff, Mr Radan, is now 75 years old. Thirty years ago, in 1984, in separate proceedings, each of those plaintiffs was convicted of serious sexual offences against children. Both of them pleaded guilty and in each case after short and essentially uncontested sentencing hearings in the District Court of Queensland, a judge acting pursuant to section 18 of the Criminal Law Amendment Act 1945 (Qld), which I will refer to as the Act, declared that each of the accused was incapable of exercising proper control over his sexual instincts and directed that each be detained in institution at Her Majesty’s pleasure.

In Mr Radan’s case, he was also sentenced to a fixed term of imprisonment of 12 years, which was reduced on appeal by the Court of Appeal to three years, and his counsel in the course of the sentencing hearing affirmatively urged the judge to make the order for indefinite detention so as to facilitate his client’s access to treatment.  Thirty years later, both plaintiffs are still detained as…