Van De Wetering v Attorney-General (Qld)

In Van De Wetering v Attorney-General (Qld), the appellant, who had completed his sentence for serious sexual offences, appealed against the decision of the primary judge who made a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General had applied for the order to detain the appellant in custody for an indefinite term or for his release from custody subject to a supervision order. The appellant conceded that he was a serious danger to the community in the absence of a division 3 order. The primary judge was satisfied that adequate protection of the community could not be managed by the appellant’s release on a supervision order. The Court was required to determine whether the primary judge failed to take account of relevant considerations for the purpose of the decision under s 13(5) of the Act, and whether the Court should make an interim detention order or interim supervision order pending the rehearing of the application for a division 3 order.

The court considered that the key to the primary judge’s conclusion was the presence of ‘important gaps’ or ‘uncertainties’ around the material facts known about the appellant’s motivations and desires, such that more needed to be known before it could be said that it was likely that the appellant’s risk was one that could be managed under a supervision order. The primary judge had considered the evidence of two psychiatrists, who expressed a preference for more information about the appellant’s motivation for the subject offences. The court found that the primary judge had considered the relevant factors and had reached a reasonable conclusion that a supervision order would not ensure adequate protection of the community from the risk that the appellant would commit a serious sexual offence, if released from custody on a supervision order. The court also found that there were developments in respect of the appellant’s circumstances since the hearing before the primary judge and that both parties submitted that the originating application should be remitted to the Trial Division for rehearing.

The court allowed the appeal, set aside the order made by the primary judge, and remitted the originating application for the division 3 order to the Trial Division for rehearing. The court made an interim supervision order that required the appellant to follow certain rules until the determination of the application for the division 3 order, or earlier order. The court held that the primary judge had not failed to take account of relevant considerations and that the appellant should be released from prison on an interim supervision order.