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  • Unreported Judgment

Darren Anthony Francis v Attorney-General

 

[2008] QSC 62

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

2 April 2008

JUDGE:

P D McMurdo J

ORDER:

The application to set aside the warrant is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – Procedural fairness – Entitlement to natural justice in application for the issue of a warrant

STATUTES – INTERPRETATION – Whether there was an intention to exclude natural justice in the Prisoners (Sexual Offenders) Act 2003 (Qld)

MAGISTRATES – appearance of defendant for a warrant – scope of the entitlement for information about a warrant to be provided to the subject

s 20, s 21, s 22, s 22A Prisoners (Sexual Offenders) Act 2003 (Qld)

Annetts v McCann (1990) 170 CLR 596, cited

George v Rockett (1990) 170 CLR 104, applied

Grech v Featherstone (1991) 33 FCR 63, applied

Kioa v West (1985) 159 CLR 550, cited

Minister for Immigration  v Bhardwaj (2002) 209 CLR 597, cited

Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, applied

Siporex Trade SA v Comdel Commodities [1986] 2 Lloyd's Rep 428, cited

Thomas A Edison v Bullock (1912) 15 CLR 679, cited

COUNSEL:

Mr NM Cook QC with Mr J Fenton for the applicant

Mr J Horton and Mr G Del Villar for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service (Queensland South) Limited for the applicant Crown Law for the respondent

[1] Mr Francis is the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).  That order, made on 7 November 2007, imposed several requirements, including that he "abstain from the use of illicit drugs".

[2] The Attorney-General claims that Mr Francis has breached that condition by using cannabis, and has filed an application that his supervision order be rescinded and that he be sent back to prison.  On 25 March 2008, a Corrective Services officer procured a warrant for his arrest, purportedly pursuant to s 20 of the Act.  He was arrested that evening and brought before this Court on the next day.  He made an oral application to be released under s 21(3) which was adjourned until 28 March.  At the same time it was ordered, as s 21(5) required, that he remain in custody pending the decision on his application to be released.  On 28 March his application was adjourned until 2 April when it came before me.

[3] At the same time there was a further application by Mr Francis[1] for an order to set aside the warrant for his arrest.  By then of course he had been arrested and he was in custody pursuant to the court's order made on 26 March.  But it is argued that the validity of the warrant is an essential pre-condition of the court's jurisdiction under s 21.  If this warrant was invalid, it is argued for Mr Francis that the order made last week for his detention must be set aside and that he must be released pending the hearing of the Attorney-General's application for the rescission of the supervision order.

[4] The parties agreed that the application to set aside the warrant should be determined prior to the alternative application by Mr Francis for release under s 21, which was not able to be heard on 2 April because I had upheld objections to part of the Attorney-General's material and it became necessary for that application to be adjourned for its evidentiary defect to be remedied.

[5] Accordingly, this judgment involves Mr Francis' application to set aside the warrant and for a consequential order for his release.  Before going to the grounds for that application, it is necessary to set out the relevant provisions of the Act.  Sections 20 and 21 are as follows:

"20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order

(1)This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner’s supervision order or interim supervision order.

(2) The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released prisoner before the Supreme Court to be dealt with according to law.

(3) The magistrate must issue the warrant, in the approved form, if the magistrate is satisfied the grounds for issuing the warrant exist.

(4) However, the warrant may be issued only if the complaint is under oath.

(6) The warrant may state the suspected contravention in general terms.

(7) If the magistrate issues a warrant under subsection (3), the commissioner of the police service or the chief executive must give a copy of the warrant to the Attorney-General within 24 hours after the warrant is issued.

(8) The Police Powers and Responsibilities Act 2000, sections 800 to 802, apply to the application for the warrant—

(a) as if the warrant were a prescribed authority, within the meaning of section 800 of that Act, that could be obtained under that Act; and

(b) if the application is made by a corrective services officer, as if the corrective services officer were a police officer.

(9) To remove any doubt, it is declared that a failure by the commissioner of the police service or the chief executive to comply with subsection (7) does not affect the court’s ability to make a further order under section 22.

21 Interim order concerning custody generally

(1) This section applies if a released prisoner is brought before the court under a warrant issued under section 20.

(2) The court must—

(a) order that the released prisoner be detained in custody until the final decision of the court under section 22; or

(b) release the prisoner under subsection (4).

(3) The released prisoner may, when the issue of his or her custody is raised under subsection (2), or at any time after the court makes an order under that subsection detaining the prisoner, apply to the court to be released pending the final decision.

(4) The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist.

(5) If the court adjourns an application under subsection (3), the court must order that the released prisoner remain in custody pending the decision on the application.

(6) If the court orders the released prisoner’s release, the court must order that the prisoner be released subject to the existing supervision order or existing interim supervision order (each the existing order) as amended under subsection (7).

(7) For subsection (6), the court—

(a) must amend the existing order to include the requirements mentioned in section 16(1)(da) and (db), if the existing order does not already include the requirements; and

(b) may amend the existing order to include any other requirements the court considers appropriate to ensure adequate protection of the community."

[6] The rescission or variation of a supervision order is made under s 22 which provides, in part, as follows:

"22 Court may make further order

(1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).

(2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

(a) if the existing order is a supervision order, rescind it and make a continuing detention order; or

(b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.

(3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—

(a) act on any evidence before it or that was before the court when the existing order was made;

(b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including an order in the nature of a risk assessment order.

(7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—

(a) must amend the existing order to include the requirements mentioned in section 16(1)(da) and (db), if the existing order does not already include the requirements; and

(b) may otherwise amend the existing order in a way the court considers appropriate—

(i) to ensure adequate protection of the community; or

(ii) for the prisoner’s rehabilitation or care or treatment.

..."

[7] The role of the Attorney-General is according to s 22A as follows:

"22A Appearance by Attorney-General

The Attorney-General has a right of appearance before the court hearing a matter under section 21 or 22 and may do any or all of the following—

(a) make submissions;

(b) call evidence;

(c) test the evidence before the court."

[8] Mr Francis' argument begins at s 21(1), which provides that s 21 applies if a released prisoner is brought before the court under a warrant issued under s 20.  It is common ground that the court has the power to order the detention of a prisoner pending the outcome of an application for rescission of his supervision order only pursuant to s 21 and only if the prisoner is brought before the court under a warrant issued under s 20.  For Mr Francis it is argued that this means a valid warrant.  By an invalid warrant, the argument means, relevantly for this case, a warrant issued without legal foundation or procured by an abuse of process.  The Attorney-General argues otherwise, saying that an invalid warrant will suffice.  Upon that argument, for example, a warrant procured by deliberately false evidence would suffice: if the prisoner's attendance is in fact secured by that warrant its invalidity would not matter.  In that case, the court's jurisdiction under s 21 would depend upon whether the prisoner's representatives could manage to have the warrant set aside before he reached the door of the court. 

[9] Because of my conclusions as to the validity of this warrant, it is unnecessary to decide whether that submission of the Attorney-General should be accepted.  However it appears to me to be unpersuasive.  It is unlikely to have been intended that the court's jurisdiction under s 21 should depend upon whether the prisoner had arrived at court before or after his lawyers could challenge the warrant.  Once s 21 is engaged, the court must order the prisoner to be detained in custody unless the prisoner can satisfy the court that his detention is not justified because of exceptional circumstances.  It is unlikely to have been intended that he should be placed in that position by reason of his wrongful arrest under a wrongly procured warrant.  An intention to affect a person's liberty in that way should be clearly expressed.  Notably, the jurisdiction under s 22 to rescind or amend a supervision order is not dependant upon the prisoner's attendance under a warrant.  This question arises only for s 21.  It is a question of interpretation of s 21(1), and the argument for the Attorney-General did not seek to rely on a relative theory of invalidity of an administrative act which is tainted by some jurisdictional error[2].

[10] Ultimately there were two grounds advanced for the invalidity of this warrant.  First, it is argued that the rules of natural justice apply to an application for the issue of a warrant under s 20.  In particular, it is said that Mr Francis should have been informed of the application and given an opportunity to resist it.  Consequently it is said that the decision to issue the warrant, and the warrant itself, had no legal effect[3].  Second, it is argued that the officer applying for the warrant was obliged to disclose everything which would be relevant to the magistrate, and this officer did not do so.  The officer informed the magistrate that a sample of urine had shown a "positive" result and the presence of "tetrahydrocannabinol-9-carboxylic acid at 66ng/ml", but he did not disclose what had been noted by analysts on reports of the test, and those notes are said to be critical.

[11] As to the first ground, the starting point is the implication that the rules of natural justice apply except where excluded with sufficient clarity[4].  There is no express exclusion of the rules in the Act, so that the question is whether they are excluded by necessary implication.  Neither argument cited any authority for the application or otherwise of the rules of natural justice to the context of an application for an arrest warrant.  But the matter was considered in relation to a statutory power of arrest in Grech v Featherstone[5], where an applicant for judicial review complained of her arrest under s 92 of the Migration Act 1958 (Cth).  Heerey J held that she was not entitled to natural justice on the occasion of her arrest for these reasons[6]:

"…It is said however that the power to arrest involved the exercise of a discretion and that discretion is reviewable under the AD(JR) Act. I accept that as a general proposition: see Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 367-368.  For example, the requirement of reasonable supposition might be held to be unreasonable in the Wednesbury [ie Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223] sense.  But it by no means follows that the power conferred by s 92(1) is to be exercised in accordance with the rules of natural justice.  Although it is by now trite law that the content of the rules of natural justice vary according to the nature of the particular power being considered, it seems to me that any recognisable form of natural justice is totally inconsistent with a statutory power of arrest.  No authority was cited to me in which such a power had been held to attract the rules of natural justice.  This is hardly surprising.  The whole point of arrest is that the person arrested is brought within the judicial system, there to be dealt with according to law.  Statute and common law will then ensure the determination of the person's liberty by an impartial court with the arrested person being given the right to be heard.  But it would be quite fanciful to suggest that such rights existed prior to arrest.  Is the arrester to give the potential arrestee a summary of the evidence against him and afford him the opportunity to be heard?  Is it to be assumed that the arrester, totally convinced of a miscreant's guilt is to be debarred from arrest because he has made a pre-judgment?"

[12] Of course, Heerey J was dealing with a different statute.  In this Act, as already discussed, the arrest of the prisoner and his consequent attendance at court engages s 21 with the result that he must prove why he should be released.  Nevertheless, in substance the reasoning of Heerey J is persuasive here. 

[13] This Act operates in relation to persons who represent a particular risk to the community.  Clearly there will be many occasions of genuine urgency where the operation of the Act and its intended protection of the community would be compromised by a need to notify the prisoner of the case against him and to allow him an opportunity to be heard before the warrant for his arrest could issue.  Indeed in many cases the whereabouts of the prisoner might be unknown at that point.  The argument for Mr Francis acknowledges all of this, but says that this does not require the exclusion of the rules of natural justice in all cases.  Rather, the content of those rules is affected by the circumstances of the individual case.  In cases of genuine urgency, or where the prisoner cannot be found or is likely to flee if informed of the application for the warrant, no notice need be given.  But in cases such as this where the prisoner's whereabouts were known and he was unlikely to flee if informed, it is argued that there was a requirement that he be informed of the application for the warrant.

[14] It is important to keep in mind the relevant question under s 20.  It is whether the police officer or Corrective Services officer reasonably suspects a released prisoner is likely to contravene, is contravening or has contravened a requirement of his supervision order.  If that ground is established to the satisfaction of the magistrate, the magistrate must issue the warrant: s 20(3).  The issue for the magistrate is not whether it appears to the magistrate that there is a case that the prisoner has breached his supervision order.  So the purpose of notifying the prisoner of the application for the warrant could be only to provide an opportunity to counter a sworn complaint of a reasonable suspicion.  It would not be to provide him with an opportunity to contest an allegation that in fact he had breached his order.  The officer applying for the warrant need not present a prima facie case of a breach.  Nor need he prove that he believes that the order had been breached.  His suspicion is something less than a belief and the facts which could reasonably ground a suspicion may be quite insufficient reasonably to ground a belief: George v Rockett[7].

[15] Section 20(6) deals with what information must be given to the prisoner about the complaint.  But it refers to what the prisoner is to learn from the warrant itself, and even at that stage, it limits what information must be provided.  It provides that the warrant may state the suspected contravention in general terms.  This is strongly against the notion that prior to the issue of the warrant the prisoner is entitled to be informed of the suspected contravention so as to be able to make submissions to the magistrate. 

[16] Although the engagement of s 21 does prejudice the prisoner by imposing upon him an onus of proof, nevertheless it empowers the court to order his release according to the particular circumstances of the case.  In a hearing under s 21, the prisoner is provided with a full right to present his case, and in essence the process of his arrest under the warrant is to secure his attendance before the court where he will be given that right. 

[17] It is sufficiently clear then that the rules of natural justice by which he would be required to be informed and allowed an opportunity to be heard are excluded.  In many cases that right would be of no practical assistance to him because of the particular issue for the magistrate under s 20, as distinct from the issues relevant under s 21 or s 22.  And in many cases the operation of the Act could be frustrated by such a requirement, because the relevant officer applying for the warrant would have to decide whether notification to the prisoner would cause him to flee or perhaps to contact relevant witnesses.  And the operation of such rules seems inconsistent with the intention of s 20(6).  In my conclusion, this first ground fails.

[18] The second ground is that not all relevant information was disclosed to the magistrate.  For the Attorney-General it is disputed that an officer applying for a warrant under s 20 must disclose everything known to the officer which would be relevant to the question for the magistrate, a submission which would be likely to surprise and concern magistrates asked to issue these warrants.  I am not persuaded to accept it.  But rather than now attempting to define the scope of the officer's duty under s 20 in general terms, it is sufficient to look at what this officer did or did not do to assess whether it has had any effect on the validity of this warrant. 

[19] In his sworn complaint, the officer said that he reasonably suspected that Mr Francis had contravened that requirement of his supervision order and that the grounds which made his suspicion reasonable were as follows:

"On 18/03/2008 FRANCIS provided a urine sample which tested positive to tetrahydrocannabinol-9-carboxylic acid.  A confirmation report received from Queensland Health indicates the presence of 66ng/ml."

[20] There are two reports of the testing of this sample.  The first is dated 19 March and the second is dated 25 March, the date on which the complaint was sworn.  Some of the evidence suggests that the second report would not have been in the hands of the officer at the time he swore his complaint, but it is this second report to which his complaint refers as the "confirmation report received from Queensland Health".  I infer that the officer had seen it and had not simply been told of some of its contents. 

[21] In the 19 March report, the analyst had added this note:

"Creatinine levels less than 200ng/L are below the normal range of levels observed in urine.  Levels below 200ng/L could indicate dilution of the urine."

In the second report, there was a comment:

"Creatinine levels less than 200ng/L are below the normal range of levels observed in urine.  Levels below 200ng/L could indicate dilution of urine and a repeat sample should be obtained."

[22] The argument is that the comments in each report should have been disclosed to the magistrate on the basis that they are said to have seriously qualified the evidentiary value of the test.  For the Attorney-General, there is affidavit evidence from a chemist employed by this part of Queensland Health as follows:

"If the level of creatinine in the urine was of a more normal level, then there would have been a corresponding increase in a concentration of the cannabis metabolite, and if in the case of 08TC3639 the urine collected had been at twice its actual level, then the level of cannabis metabolite would also have been twice its actual level."

Although the witness was cross-examined upon his affidavit, that part of it was not  challenged.

[23] I accept that the comments in these reports would be relevant in the assessment of the weight to be given to them.  The factual possibilities raised by those comments would have to be explored further than they have been in the present hearing to assess whether the tests do provide reliable evidence of the presence of this substance and thereby of the prisoner's use of cannabis.  But the comments do not have the result that there could be no reasonable suspicion based upon the reports.  The reports might not ultimately prove the use of cannabis but nevertheless they could reasonably ground a suspicion, which is "a positive feeling of actual apprehension or mistrust, amounting to a 'slight opinion but without sufficient evidence' ", as Kitto J said in Queensland Bacon Pty Ltd v Rees[8] in a passage cited in George v Rockett[9].

[24] Even without the scientific evidence to which I have referred, the reports would provide reasonable grounds for a suspicion that Mr Francis had used cannabis.  After all, the relevant substance was said to have been found.  The comments do not say that in truth there was not that substance, or that the test gave no indication that Mr Francis had used cannabis.  The detected presence of the substance would provide a reason for "an actual apprehension or mistrust". 

[25] Accordingly, the provision of copies of the reports to the magistrate would not have added anything.  The magistrate should still have found that the officer's suspicion was reasonable.  It would not have been for the magistrate to decide whether he or she had the same suspicion.

[26] It follows that whatever was the extent of the officer's duty of disclose, the duty was not breached by not providing these reports to the magistrate.  Alternatively, if they should have been provided to the magistrate, the fact that they were not provided should have had no consequence for the decision to issue the warrant.  Once the magistrate was satisfied that there was a suspicion on reasonable grounds, as the magistrate should have been, the magistrate would still have been obliged to issue the warrant[10].  For Mr Francis it was argued that the present context was analogous to an ex parte order obtained without full disclosure to the court.  But as is shown by the cases cited in that respect, it is not inevitable that an ex parte order will be set aside if such disclosure has not been made[11].  Because this information should have been inconsequential, the fact that it was not provided to the magistrate should have no consequence for the validity of the warrant.

[27] The result is that the challenge to the warrant fails.  The application to set aside the warrant will be dismissed.

Footnotes

[1] Filed 31 March 2008.

[2] Minister for Immigration v Bhardwaj (2002) 209 CLR 597 per Kirby J, 630-632 [101] – [104], 633 [107] – [108].

[3] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614-615 [51].

[4] Kioa v West (1985) 159 CLR 550, 563, 593, 594-595, 609-612, 632; Annetts v McCann (1990) 170CLR 596, 598.

[5] (1991) 33 FCR 63.

[6] (1991) 33 FCR 63, 67.

[7] (1990) 170 CLR 104, 115.

[8] (1966) 115 CLR 266.

[9] (1990) 170 CLR 104, 115-116.

[10] Section 20(3).

[11] Thomas A Edison v Bullock (1912) 15 CLR 679, 680-682; Siporex Trade SA v Comdel Commodities [1986] 2 Lloyd's Rep 428, 437.

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Editorial Notes

  • Published Case Name:

    Darren Anthony Francis v Attorney-General for the State of Queensland

  • Shortened Case Name:

    Darren Anthony Francis v Attorney-General

  • MNC:

    [2008] QSC 62

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    04 Apr 2008

Litigation History

No Litigation History

Appeal Status

No Status