SUPREME COURT OF QUEENSLAND
CITATION:
Pollentine v Attorney General [2019] QSC 200
PARTIES:
EDWARD POLLENTINE
(Applicant)
v
THE HONOURABLE YVETTE D’ATH ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
(Respondent)
FILE NO/S:
BS No 496 of 2017
DIVISION:
Trial Division
PROCEEDING:
Application for Review
DELIVERED ON:
15 August 2019
DELIVERED AT:
Brisbane
HEARING DATE:
25 July 2019
JUDGE:
Bowskill J
ORDER:
The application for review is dismissed. I will hear from the parties as to costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant was convicted in 1984 of serious sexual offences against children – where the sentencing judge declared, on the basis of the reports of two specialist psychiatrists, that the applicant “is incapable of exercising proper control over his sexual instincts” and directed that the applicant be indeterminately detained pursuant to s 18(3) of the Criminal Law Amendment Act 1945 (Qld) – where the applicant requested that the Governor in Council exercise the implied power under s 18(5) of the Act to release him – where the Governor in Council was not satisfied, having regard to the reports of psychiatrists before them, that “it is expedient to release” the applicant and accordingly made a decision that he not be released – where the applicant seeks judicial review of the decision, on the basis the Governor in Council failed to make the decision according to law, by not addressing or answering the question whether he was presently incapable of exercising proper control over his sexual instincts – where the applicant claims the Governor in Council made this error, because neither of the two psychiatrists principally relied upon directly or sufficiently addressed that question in their reports – whether the Governor in Council’s decision is affected by error of law and ought to be set aside
Criminal Law Amendment Act 1945 (Qld) s 18, s 18E
Judicial Review Act 1991 (Qld)
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Buck v Bavone (1976) 135 CLR 110
Butler v Attorney-General [2018] QCA 243
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Pollentine v Attorney General [1995] 2 Qd R 412
Pollentine v Bleijie (2014) 253 CLR 629COUNSEL:
D O’Gorman SC and S Lane and for the applicant
S McLeod QC and G del Villar for the respondent
SOLICITORS:
Prisoners’ Legal Service for the applicant
Crown Law for the respondent
Introduction
In July 1984 the applicant pleaded guilty to and was convicted of fourteen counts of serious sexual offences committed against four different children, on three separate occasions between January and April of that year. The detail of the offences appears in the material before the court. It is unnecessary to refer to…
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- AGLC
- Pollentine v Attorney General [2019] QSC 200
- Case
- [2019] QSC 200
- Decision Date
CaseChat Overview and Summary
The court held that the phrase ‘it is expedient to release him’ in section 18(5)(b) of the Act must be understood in the context of the Act as a whole, particularly in light of the provisions authorising detention and conditional release. The court concluded that the required state of satisfaction for release must be based on whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts, as per section 18(1)(a). The court further ruled that neither anticipated adverse community reaction nor other political consequences are relevant to whether it is expedient to release a person detained under section 18. The court’s interpretation emphasised that the decision to release must depend on the assessment of the risk of reoffending and the nature of the offences that the detainee might commit if released without conditions or supervision.
The court dismissed the application for review, holding that the Governor in Council had not erred in law. The court left the question of costs to be addressed in future proceedings.
Orders
Orders of the court
The application for review is dismissed. I will hear from the parties as to costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The plurality said the following, about the CLA Act’s provisions for release:“32 The plaintiffs submitted that the CLA Act provides different criteria for directing detention from those which govern release from detention. In this branch of their argument, the plaintiffs directed chief attention to s 18(5)(b) of the CLA Act and, in particular, what is meant by the phrase ‘it is expedient to release him’. It is important to notice, however, that the provisions governing release from detention must be understood in the context of the Act as a whole. In particular, what is meant by ‘it is expedient to release him’ must be understood in light of not only the Act’s provisions authorising a direction for detention but also the provisions made for conditional release of a detainee. All of these considerations inform the meaning that is to be given to the word ‘expedient’.33 The Governor in Council must (s 18(5)(b)) be satisfied on the report of two medical practitioners that ‘it is expedient to release’ the offender. The required state of satisfaction must thus draw upon the reports and, in the context of this Act, those reports must be directed to whether, at the time of the report, the detainee remains a person whose ‘mental condition is such that he is incapable of exercising proper control over his sexual instincts’ (s 18(1)(a)). Section 18(5) makes no mention of any other source of material which may inform the formation of the required state of satisfaction.34 Because s 18(5) provides for the termination of detention, it should not be construed as conferring an unfettered discretion to grant or refuse a detainee’s release. On the contrary, by identifying the report of the medical practitioners as the foundation for the decision about what is ‘expedient’, the provision should be read as confining the matters which the decision maker may lawfully take into account to the matter with which those reports should deal: whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts. Whether the decision maker may be informed on that subject by reference to more than the reports provided is a question which need not be decided. But what is ‘expedient’ turns only on whether the detainee remains incapable of exercising proper control.” At [35] the plurality addressed an argument about whether anticipated adverse community reaction had any role to play in determining expediency, and continued, at [36]:36 … It is enough to say that, for the reasons which have already been stated, neither ‘anticipated adverse community reaction’ nor other forms of political consequence, whether assumed to be well founded or not, are relevant to whether it is expedient to release a person detained under s 18. As has been explained, whether it is expedient to release must depend upon the assessment that is made of the risk of reoffending and the nature of the offences that the detainee might commit if released from detention without conditions or supervision. To take into account ‘anticipated adverse community reaction’ or ‘public opinion’, even if those expressions could be and were given some legally sufficient meaning, would be to fall into error.37 The conclusions which have been stated follow from construing the expression ‘it is expedient’ in the context in which it appears in s 18(5) and by reference to the subject matter, scope and purpose of the detention provisions made by s 18 and the CLA Act as a whole. They are conclusions which are consistent with, and reinforced by, the conditional release provisions now set out in Pt 3A of the CLA Act. The substance of those provisions has been described earlier in these reasons. For present purposes the observation of central importance is that, as noted earlier, s 18E requires that there be no release on parole unless the Parole Board ‘is satisfied the detainee does not represent an unacceptable risk to the safety of others’.38 What is an ‘unacceptable’ risk may, probably will, differ according to the conditions on which a detainee is released into the community. If detention is terminated under s 18(5), the detainee is released without condition. The risks that are to be considered are to be identified by reference to those circumstances. By contrast, if released on parole, a detainee may be released on conditions including, for example, continued compliance with medication or other forms of treatment. The risks to be considered in that case would be considered against a background where the detainee would risk return to detention for breach of those conditions, regardless of whether the detainee had committed any offence.39 It is not necessary to explore these aspects of the matter further. For the purposes of this case, the important observation to make is that there is no relevant difference between the basis on which a court will act in ordering indefinite detention under s 18(3) and the basis on which the Executive must act in deciding whether it is expedient to terminate the detention.”