GARY UNE TURNBULL (appellant) v ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent)
FILE NO/S:
Appeal No 6396 of 2014 SC No 3675 of 2014
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
14 April 2015
DELIVERED AT:
Brisbane
HEARING DATE:
26 February 2015
JUDGES:
Morrison and Philippides JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH THE JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where the appellant was convicted in 2002 for 10 counts, which consisted of one attempted rape and three counts of rape – where the appellant was originally sentenced concurrently to 16, 20 and 20 years for the three rapes – where in 2013 the appellant was granted an extension of time to appeal against sentence and the sentences were reduced to 10, 13 and 13 years respectively – where, as a result, the sentence was reduced by seven years and the appellant was to be released in six months – where it had been identified that the appellant undergo the High Intensity Sexual Offender Program – where this program takes more than six months – where the appellant was not able to complete the program earlier in his sentence as it was only offered immediately prior to release – where the appellant had not completed this program – where the Attorney-General made an application under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for the appellant’s continuing detention – where an order was made declaring the appellant a Dangerous Prisoner requiring continuing detention – whether in making that order the primary judge erred in accepting the evidence of the psychiatrists – where the psychiatrists’ use of certain actuarial instruments was questioned – whether there was acceptable, cogent evidence that the appellant was a serious danger to the community under s 13(1) of the Act – whether in order to access the true risk of the appellant he had to undergo the High Intensity Sexual Offender Program – whether the appellant should have been released under a supervision order
A M Nelson for the appellant P Davis QC, with M Maloney, for the respondent
SOLICITORS:
Alexander Law for the appellant Crown Law for the respondent
MORRISON JA: In 1998 and 2001 Mr Turnbull committed a series of 10 sexual assaults, including one offence of attempted rape and three counts of rape. All of the assaults were against women who were complete strangers to him.
The first two offences in 1998 were against a woman he followed from a railway station. He placed his arm around…
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
AGLC
Turnbull v Attorney-General (Qld) [2015] QCA 54
Case
[2015] QCA 54
Decision Date
CaseChat Overview and Summary
In the case of Turnbull v Attorney-General, the appellant, Turnbull, sought to appeal against a decision that he should remain in detention as a dangerous sexual offender. The appellant was originally sentenced for multiple counts of rape, and his sentence was subsequently reduced. The Attorney-General applied for the appellant's continuing detention under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and an order was made declaring the appellant a dangerous prisoner requiring continuing detention. The appellant challenged the decision, arguing that the primary judge erred in accepting the evidence of the psychiatrists, and that there was no acceptable, cogent evidence that he was a serious danger to the community.
The court considered whether the primary judge erred in accepting the evidence of the psychiatrists, and whether there was acceptable, cogent evidence that the appellant was a serious danger to the community. The court found that the psychiatrists had extensive experience and qualifications, and that their opinions were formed by a combination of clinical judgment and actuarial instruments. The court noted that the experts had acknowledged the limitations of the actuarial instruments, and that their assessment of the appellant's risk category would not change if more recent versions of the instruments were used. The court also found that the evidence supported the conclusion that the appellant was a serious danger to the community, and that there were important gaps in the information about his motivations and desires.
The court concluded that the evidence supported only one conclusion as to the appellant's risk. In the absence of the appellant undergoing the High Intensity Sexual Offender Program, it could not be concluded that a supervision order could be fashioned which would reasonably and practicably manage the question of adequate protection of the community. The court found that the learned primary judge's view that the appellant was a serious danger to the community was supported by the evidence, and that there was no error on the part of the learned primary judge. The appeal was dismissed, and the order declaring the appellant a dangerous prisoner requiring continuing detention was upheld.
The final orders of the court were that the appeal be dismissed, and the order declaring the appellant a dangerous prisoner requiring continuing detention be upheld. The appellant remained in detention as a dangerous sexual offender.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Issues 1 and 2 will be dealt with together, as will issues 3 and 4.Did the primary judge err in accepting the evidence of the psychiatrists? As developed on the appeal, Mr Turnbull’s main contention was that the learned primary judge should not have accepted the evidence of three expert psychiatrists, because their opinions had been formed, at least in a significant part, by the use of outdated and inaccurate actuarial instruments, and interpreted with similarly outdated statistics on the recidivism rates.[6][6]Amended outline, paragraph 127. For the reasons which follow, this contention cannot be accepted. A review of the expert evidence is required to demonstrate why that is so. All three experts (Dr Grant, Professor Nurcombe and Dr Aboud): (a)had extensive experience and qualifications in psychiatric assessment, and gave evidence by written reports[7] and oral evidence;(b)detailed their use of the various actuarial instruments;(c)acknowledged the historical development of the instruments and that there were differing views as to their utility;(d)acknowledged their limitations in terms of the type of samples used to develop the instruments; this included that the samples were based on group estimates, not standardised for Australian populations, nor for indigenous populations;[8](e)said that the instruments were used as a part of the assessment of the risk posed by Mr Turnbull.[7]Dr Grant at AB 81; Professor Nurcombe at AB 128; Dr Aboud at AB 190.[8]Relevant as Mr Turnbull is an indigenous person. All three experts were agreed as to the appropriate way to assess the risk. It was to combine clinical judgment, based on an interview and a review of records, with use of the actuarial instruments, to produce a structured clinical judgment.[9] That judgment was not based solely or even mainly on the use of actuarial instruments. Dr Grant described it as a “complex and multi-factorial assessment” utilising material in relation to the offending history, transcripts and other material from the trial, prison records, a standard psychiatric assessment by interview, and the application of instruments.[9]Dr Grant at AB 11, 25; Professor Nurcombe at AB 148; Dr Aboud at AB 52. Most importantly for this issue, all three experts said that their assessment of Mr Turnbull’s risk category would not change if the actuarial aspect was carried out using more recent editions of those instruments, or if various different individual figures were applied to some of the scores.[10] That evidence was maintained by each of them during cross-examination.[10]Dr Grant at AB 19, 21-23 and 24; Professor Nurcombe at AB 39, 40, 43 and 80; Dr Aboud at AB 46, 50. The evidence reviewed above shows that none of the expert psychiatrists based his opinion only on actuarial statistics, but upon a combined use of them with clinical judgment. All experts said that neither the use of the more recent versions of the actuarial instruments, nor suggested changes in individual scores, made any difference to their overall assessment of the risk.
Decision
Reasons for decision
In my view the evidence supported only one conclusion as to that. In the absence of Mr Turnbull undergoing the HISOP, one could not conclude that a supervision order could be fashioned which would reasonably and practicably manage the question of adequate protection of the community. The expert evidence was that there are important gaps in the information about Mr Turnbull’s motivations and desires, and that more needs to be known before it can be said that his risk is one that can be managed, if that was possible at all. The unknown factors underlying the violent and severe attacks perpetrated by Mr Turnbull prevented, in my view, the conclusion that adequate protection of the community could be ensured under a supervision order.Conclusion For the reasons expressed above it has not been demonstrated that was any error on the part of the learned primary judge. I would dismiss the appeal. PHILIPPIDES JA: I agree with the order proposed by Morrison JA for the reasons given by his Honour. DOUGLAS J: The learned trial judge’s view that the appellant was a serious danger to the community recognised that, while the psychiatric assessment of the risk of his reoffending was low to moderate, the psychiatrists believed there was insufficient information to identify the true triggers behind his disturbing acts of sexual violence. There was a need to identify those underlying triggers before there could be a proper assessment of the risk factors so as to structure any conditions of a supervision order.[37][37]Attorney-General (Qld) v Turnbull [2014] QSC 132 at [27]. Absent the ability to determine those conditions, the risk that he would commit a serious sexual offence, even if assessed as moderate by the psychiatrists, remained unacceptable; see s 13(2) of the Act. Nor, as Morrison JA discusses at [34] – [40], in the absence of the further information likely to become available if the appellant underwent the HISOP, would the court have been in a position to consider properly whether the adequate protection of the community could be reasonably and practicably managed by a supervision order; see s 13(6)(b)(i) of the Act. I agree, therefore, with the reasons of Morrison JA and the order proposed by his Honour.