Attorney-General v Harvey[2011] QSC 82

SUPREME COURT OF QUEENSLAND

[1] This is an application by the respondent Mr Harvey for orders:

(a) that he be released from custody pending the court’s final decision under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), and

(b) that the Attorney-General’s application, insofar as it alleges a breach of condition 12 of the Order made by Atkinson J on 3 December 2007, be dismissed.

[2] On 7 August 2006 Byrne SJA ordered that Mr Harvey be detained in custody for an indefinite period for controlled care and treatment pursuant to Division 3 of the Act. Part 3 of that Act requires that a prisoner’s continued detention be subject to regular reviews. Such a review took place on 3 December 2007. On that occasion Atkinson J ordered that Mr Harvey be released from custody subject to a series of conditions which were to apply until 3 December 2014. One of the conditions of supervision was that Mr Harvey must:

“(12) Not commit an indictable offence during the period of the order.”

[3] On 28 March 2008 Mr Harvey was arrested and charged with several offences. He was returned to custody and the Attorney-General has filed an application (to be heard later this year) that the order made on 3 December 2007 be rescinded and that a continuing detention order be imposed. The basis for the application is the allegation by the Attorney-General that Mr Harvey has contravened the requirements of his supervision order in a number of respects. They are that:

“1.On 24 January 2008 the respondent provided a urine sample which tested positive to Tetrahydrocannoabinol - 9 - carboxylic acid and thereby breached Clause 17 of the order of Atkinson J by not abstaining from the use of illicit drugs during the duration of the order.

2.On 4 December 2007 the respondent was directed by a Corrective Services Officer to abide by a curfew and to be in and remain at his Wacol residence between the hours of 10pm and 6am. On 5 January 2008 the respondent did not return to his residence until 10.08pm and was in breach of Clause 23 of the order of Atkinson J by not complying with a curfew direction.

3.On 4 December 2007 the respondent was directed by a Corrective Services Officer to abide by a curfew and be in and remain at his Wacol residence between the hours of 10pm and 6am. On 14 February 2008 the respondent did not return to his residence until 10.04pm in breach of Clause 23 of the order of Atkinson J by being in contravention of a curfew direction.

4.On 24 January 2008 the respondent was directed by a Corrective Services Officer not to have a person under the age 18 years at his residence at Wacol. On 20 February 2008 the respondent had a male child 2 years of age at his residence contrary to that direction in breach of Clause 13 of the order of Atkinson J that he failed to comply with a reasonable direction of an authorised Corrective Services Officer.

5.On 22 February 2008 the respondent failed to attend the appointment of a psychologist, Lars Madsen, as directed and was in breach of Clause 20 of the order of Atkinson J by failing to attend upon and submit to assessment and/or treatment by a psychiatrist as directed by an authorised Corrective Services Officer.

6. On 28 March 2008 the respondent attended premises at 1/53 Heel Street, New Farm and assaulted Dianne Hawkins causing her grievous bodily harm in breach of Clause 12 of the order of Atkinson J by committing an indictable offence during the period of the order.”

[4] Mr Harvey was originally charged with attempting to murder Dianne Hawkins and with assaulting her and causing her grievous bodily harm. The attempted murder charge was dismissed at the committal stage.

[5] An indictment charging Mr Harvey with assault occasioning grievous bodily harm was presented in the District Court in July 2009. On 16 June 2010 the complainant was found dead in her home unit. The Crown made an application to the District Court that a transcript of the evidence she gave at the committal proceedings be admitted in evidence at the trial of Mr Harvey pursuant to s 111 of the Justices Act 1886. That application was successful.

[6] Further evidence was then obtained which cast significant doubt on the evidence of the deceased complainant. An application was made on behalf of Mr Harvey for the exclusion of her evidence. That application was successful with the result that at any trial there would be no evidence from the complainant.

[7] On 22 November 2010 the Director of Public Prosecutions discontinued the proceeding against Mr Harvey by way of a nolle prosequi on all charges against him relating to Dianne Hawkins.

[8] On behalf of Mr Harvey it is argued that it cannot now be shown that there has been a breach of condition 12 because:

(a) The respondent has not committed any indictable offence as he has not been convicted by a court; and/or

(b) On the state of the evidence it cannot be determined that he has committed an indictable offence.

[9] The argument for Mr Harvey is that in order for it to be established that there has been a breach of condition 12 there must be a conviction by a court of an indictable offence. The position was illustrated by Mr Smith when he pointed to the difference between the condition as it is worded and a condition which read, for example, “that the prisoner shall not commit an act or an omission which falls within the definition of an indictable offence”.

[10] The power to release a person in Mr Harvey’s position is contained in s 21 of the Act:

“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 all of the requirements under section 16(1) if the order does not already include all of those requirements; and

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

[11] The circumstances in which the court may make further orders are set out in s 22 of the Act:

“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, for example, an order--

(i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or

(ii) for the revision of a report about the released prisoner produced under section 8A;

(c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A.

(4)To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).

(5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.

(6) For applying section 11 to the preparation of the report--

(a) section 11(2) applies with the necessary changes; and

(b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.

(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 all of the requirements under section 16(1) if the order does not already include all of those 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.

(8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

[12] On behalf of the Attorney-General it is said that exceptional circumstances have not been demonstrated as is required under s 21(4) of the Act. The Attorney-General opposes the application on these grounds:

(a) The deceased complainant’s statement, as well as her evidence at the committal proceeding, are admissible as evidence in these proceedings by virtue of s 92 of the Evidence Act 1977;

(b) It is inappropriate to dismiss the allegation of a contravention of condition 12 at this point;

(c) The application is an attempt to have a preliminary assessment of the strength of the evidence and that assessment should take place at the final hearing;

(d) It is not appropriate to deal with the application to dismiss the allegation of a contravention of condition 12 as it would have the effect of breaking up the proceedings into segments;

(e) It is inappropriate to release Mr Harvey in circumstances where there has been no psychiatric assessment of the risk of reoffending since 2007.

[13] I accept the submission by the Attorney-General that it is not appropriate to proceed with this matter in a piecemeal fashion. Section 21 and s 22 of the Act impose substantial burdens on a prisoner to satisfy the court of a number of things. First, under s 21, in order to be released from custody, the prisoner must show that detention is not justified because exceptional circumstances exist. In this case the prisoner seeks to demonstrate that by arguing that if the alleged contravention of condition 12 is disregarded, then the balance of the contraventions are so minor that he should be at liberty.

[14] It is not possible to define exhaustively the term “exceptional circumstances”. They can arise in many different cases, in many different forms, but to determine that a set of circumstances is exceptional within the meaning of s 21 requires, at least, a conclusion that the associated risks arising from the alleged contravention and subsequent release are not such as to justify the continuing detention.[1]

[15] I cannot arrive at that conclusion in this case in the absence of any contemporary psychiatric reports. Mr Harvey has a lengthy criminal history for different types of offences. He was on bail on a charge of aggravated assault when he raped his first victim, and he was on bail for that rape, when he raped the second victim. The most recent psychiatric risk assessments were conducted in 2007 and so the current level of risk is, to my mind, unclear.

[16] Secondly, s 22 requires the court to consider whether it is satisfied by a prisoner that the adequate protection of the community can, despite the contraventions which have been proved, be ensured by the existing order and so on. In order for a court to consider those matters, I think it important that all alleged contraventions are placed before the court along with such other psychiatric or other evidence which is relevant and current.

[17] The application is dismissed. If risk assessments and psychiatric reports have not yet been prepared then I will make such orders as are necessary.