Attorney-General v Friend[2011] QCA 294

COURT OF APPEAL

WHITE JA

Appeal No 9192 of 2011

SC No 883 of 2006

ATTORNEY-GENERAL FOR THE STATE

OF QUEENSLANDAppellant

and

ROY FRIENDRespondent

BRISBANE 

DATE 20/10/2011

ORDER

WHITE JA:  The Attorney-General has applied for a stay of orders made by Justice Mullins on the 30th of September 2011 that pursuant to s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent Mr Friend, be released from custody on a supervision order which had initially been imposed by her Honour on the 1st of November 2010.

The Attorney has appealed that order and, as I have mentioned today, has sought a stay of Justice Mullins' order.

The circumstances in which Mr Friend was before the Court was by virtue of an arrest warrant issued under s 20 of the Act on the basis that he was suspected of contravening the supervision order.

The supervision order, to which I have already made reference, made on the 1st of November 2010 by Justice Mullins was varied by her on the 24th of May 2011.

The Attorney has sought to have the supervision order that was made in November last year rescinded, and that Mr Friend be detained indefinitely in custody for the purposes set out in the Act.  That application seeking to rescind the order is not to be heard in the trial division until the 20th of April 2012.

The provision under which the primary Judge was exercising her discretion, s 21(4) provides, "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."

Recently this Court, in Harvey v Attorney-General for the State of Queensland [2011] QCA 256, undertook a consideration of what constitutes exceptional circumstances in the context of that provision in the Dangerous Prisoners (Sexual Offenders) Act.

Justice Boddice, who wrote the principal judgment, said in paragraph 42, ‘exceptional' is an ordinary word but “‘describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon’.  It need not be ‘unique, or unprecedented, or very rare’, but it cannot be a circumstance that is ‘regularly, or routinely, or normally encountered’."

In paragraph 43 his Honour said, "Whether exceptional circumstances are shown to exist will depend on the facts and circumstances of a particular case.  A breach that is trivial or accidental may well present little difficulty for a released prisoner to show ‘exceptional circumstances’.  However, exceptional circumstances require a conclusion the associated risks from any release pending determination of the contravention proceedings are not such as to justify continuing detention."

It is well accepted that the challenge to the primary Judge's decision will require the Attorney-General to demonstrate a miscarriage of the exercise of that discretion in the manner identified in House v The King (1936) 55 CLR 499 per Dixon J at 504 to 5.

The respondent to this application has a significant criminal history with respect to sexual offences involving young boys and tends to involve befriending and grooming those boys.  As set out in Mr Davis’ and Mr Scott's outline of submissions taken from an earlier decision concerning Mr Friend in [2008] QSC 27, these facts are revealed:  that he was first convicted in 1991 in Townsville of the offences of indecent dealing with a boy under 17, of which there were five charges, and indecent assaults, for which there were 16 charges. Those offences occurred in the late 1980s.  He was sentenced to two years' imprisonment.

The second set of offences was for possession of child abuse photographs in August 1997.  The respondent was sentenced to six months' imprisonment suspended for three years.

His next offences concerned the indecent treatment of a boy under 16.  They were committed while he was in the company of another child sex offender.  It's unnecessary to detail that offending behaviour, but he was sentenced to 12 months' imprisonment, which was reduced on appeal to three months' imprisonment.

The fourth lot of offences were in April 2003.  They involved 13 charges of indecent treatment of a boy under 16 and two charges of indecent treatment of a boy under 12.  He had befriended boys aged between 14 and 16 as part of his employment.

Mr Friend was first released on a supervision order in June 2006.  He was found to have contravened that order in November 2007 and it was rescinded on the 27th of February 2008.  He was detained in custody.  That breach also concerned a boy under the age of 16.  His custody was continued on the 2nd of June 2009 and the supervision order made on the 1st of November occurred after a review of that order.

It is important, with that background in mind, to mention the condition in the supervision order which has, allegedly, been breached by Mr Friend.  By condition xxviii he was ordered not to establish or maintain any supervised or unsupervised contact with male children under 16 years of age, except with the prior written approval of an authorised Corrective Services Officer.  There are some other aspects to the order, but that's the important gist of it.

The circumstances of the alleged offending which constitutes the breach I take from the Police Court brief.  It appears that the information was given to police intelligence by an informant.  Mr Friend had regularly attended a store at Goodna described in the QP9 "to groom a young male shop assistant."  Detectives provided a female employee with a photo ID board.  She identified Mr Friend and stated that he had frequented the store in the past. 

Police interviewed the child who also identified him and explained that Mr Friend had regularly attended the store to shop.  He mentioned two particular occasions in December and in January 2011 before the floods that Mr Friend had engaged him in conversations not incidental to the customer/salesperson relationship, asking him about his personal relationships, being over-friendly and having “crossed the line” when two people first meet.

On the second occasion in January Mr Friend provided the child with his contact number and told him to contact him.  However, the child felt uneasy, it is reported, and discarded the telephone number.

The child then turned 16.  However, in April 2011 Mr Friend was driving a motor vehicle and saw the boy.  He stopped the car and spoke to him.  He got out and showed him a stab wound near his ribs.  He told the child some fanciful story and then asked him if he wanted a lift home.  He said “no”.  There has been no other suggested attempt by Mr Friend to contact that boy.

Mr Friend was also dealt with in this Court before Justice Fryberg on the 24th of June 2011 pursuant to the Act for contravention of the requirement, again, that he not be in supervised or unsupervised contact with a male child under the age of 16.

The contact there arose in a commercial business setting.  There were said to be three children of the parents who Mr Friend was seeing in a business relationship, they were all under the age of 15 years.  He attended at their house twice relating to some business arrangement about furniture.

Justice Fryberg concluded that special circumstances were demonstrated and that there was no hint of grooming behaviour with respect to these children.  His Honour was concerned that Mr Friend should have breached the order.  Mr Friend apparently had deposed that he did not report this contact to Corrective Services because it was so limited and not a matter of friendship.

The primary Judge was particularly impressed that Justice Fryberg had expressed himself in strong terms about the need for compliance of the order to Mr Friend.  Her Honour noted that that stern warning had effect because the records of supervision by Corrective Services revealed no conduct by Mr Friend of a nature to give concern that he was treating the conditions with less than the appropriate respect.

Her Honour concluded, "It is because of the record of compliance since 24 June 2011 and against the background of the relatively recent psychiatric evidence that was obtained for the purpose of the hearing on 1st November 2010, that I am persuaded by the respondent that his continued detention in custody pending final decision is not justified".

The Attorney-General has appealed on various grounds her Honour's conclusion.  Those grounds challenge the finding that the record of compliance with the supervision order since the decision of Justice Fryberg was a flawed approach to the issue of contravention; that she had not taken into account, in referring to the psychiatrists’ assessment, that the psychiatrists were unaware, not only of the breach dealt with by Justice Fryberg, but, more particularly, the alleged contravention in this proceeding and whether they might accordingly change their assessment. 

The other grounds are that there was no basis upon which the primary Judge could have found that the associated risks from any release pending determination are not such as to justify continuing detention; and finding that the respondent had discharged the onus under s 21 was unreasonable and against the weight of the evidence.

Since the application for the stay was filed the Court has been able to make available to the parties an early appeal date on the 8th of November.  There is thus some three weeks between now and the hearing of the appeal. 

I am of the view that the appeal itself has prospects of success but I am not disposed to make any further comment.  The principles to be applied on a stay application in relation to an application which involves the Dangerous Prisoner (Sexual Offenders) Act were recently considered by Justice Chesterman in A-G (Qld) v Fardon.  Justice Chesterman's approach is accepted by the parties.  The usual provisions relating to a stay, which are found in the Uniform Civil Procedure Rules, will apply to an application under the Act rather than s 41 of the Act.

Accordingly, the approach to a stay, as most recently enunciated by Justice Keane, as his Honour then was, in Cook’s Construction Proprietary Limited v Stork Food Systems Australasia Proprietary Limited [2008] 2 Qd R 453 at 455 will, with modification, apply.  Justice Chesterman discussed that approach, particularly at paragraph 15 of his reasons.  He identified the loss of the benefit of the order which was the subject of discussion by Justice Keane in Cook’s Construction, as the benefit of a successful appeal if the prisoner commits a serious sexual offence in the period between judgment at first instance and on appeal.  His Honour said if that should happen, the community would not have been adequately protected and the means of ensuing that protection shall have been lost.

Mr East for Mr Friend questioned the identification of the risk of a serious sexual offence being committed in the three weeks which will elapse between now and the hearing of the appeal.  That is a strong argument.  In the case of Fardon his Honour used the short period between the application for the stay and the hearing as a reason for maintaining Fardon in custody.  Here the converse is argued, and with some, I think, good grounds to do so.  In Fardon Justice Chesterman identified a fairly truculent approach to compliance with the order by the respondent.  That certainly hasn't been identified here. 

I should say that I have not been taken to the risk assessments by the psychiatrists under s 11 and so I don't have the benefit of their approach and why they felt that Mr Friend was a risk that could be taken with a strict supervision order.  But it does seem to me to be a matter of immense seriousness that Mr Friend, on the basis that the contravention is made out (and there does seem to be very strong evidence to support it), was prepared so blatantly to breach the order that he had just a month previously agreed to abide by. 

Furthermore, the way in which these matters have come to light does not speak well of compliance or a realisation that there had been non-compliance and then confession to Corrections.  I am particularly disturbed at what isn't really true “grooming” behaviour, that is, the spontaneous stopping of the car on the road when he saw the young lad that he had earlier sought out at the store, the attempt to entice him into the car and the conduct in showing the stab wounds on his chest.  It's that impulsiveness which suggests to me that there is a real risk, even though nothing else has happened since June and there has been apparent compliance. 

For those reasons, I am prepared to accede to the application for the stay. 

...

WHITE JA:  A warrant should issue then for the arrest of the respondent, Roy Friend.

...

WHITE JA:  I note for the record that although Mr Davis and Mr East of counsel have both been informed of what I propose to do this afternoon, they are not in attendance having been excused from doing so. 

This morning, amongst orders which I made, was an order at the request of Mr Davis for the Attorney-General that a warrant issue for the arrest of Roy Friend.  Due to the vigilance of Mr Ian Enright in the Registry who queried the power to issue such a warrant with my associate, the matter was referred back to Mr Davis and Mr East. 

I am now in receipt of a letter, in respect to which they have both conferred, in which Mr Davis writes, "An order for the respondent's arrest is unnecessary because, by reason of the stay order made today, the Respondent is now unlawfully at large within the meaning of s. 112 of the Corrective Services Act 2006.  There was an order by Mullins J made under s. 21 of the Act that the respondent be detained in custody until the final decision of the Court in the contravention proceeding.  This was the order dated 22 September 2011.  The order of Mullins J of 30 September 2011 is therefore the only order authorising the Respondent's release.  Upon the stay of that order, the Respondent is to be detained in custody by force of the order of 22 September 2011."

Mr Davis notes that s 112 of the Corrective Services Act permits a Corrective Services Officer to arrest a prisoner without a warrant if that prisoner is unlawfully at large.  A police officer may also arrest a prisoner in those circumstances pursuant to s 366 of the Police Powers and Responsibilities Act 2000.  The respondent is therefore subject to those powers.  In that circumstance, the final order, which I made this morning, that a warrant issue for the arrest of Roy Friend should be vacated.