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Attorney-General v Fardon[2014] QSC 221

Attorney-General v Fardon[2014] QSC 221

 

 SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

McMURDO J

 

No 5346 of 2003

 

RODNEY JOHN WELFORD, ATTORNEY-GENERAL

FOR THE STATE OF QUEENSLANDApplicant

and

ROBERT JOHN FARDONRespondent

 

BRISBANE 

3.27 PM, WEDNESDAY, 3 SEPTEMBER 2014

 

ORDER 

 

HIS HONOUR:   Mr Robert John Fardon has been brought before the Court pursuant to a warrant which issued purportedly pursuant to section 20 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).  Counsel for Mr Fardon made an application to challenge the warrant, arguing that the corrective services officer on whose complaint the warrant was issued could not have held a reasonable suspicion that Mr Fardon was likely to contravene his supervision order.  The complainant, Ms Embrey, from the Queensland Corrective Services made her complaint upon the basis of what she was told by another QCS employee, Mr Wilson.  Mr Wilson and Ms Embrey have sworn affidavits and Mr Wilson was cross-examined.

 

Mr Wilson says that he was informed by another resident at the Wacol precinct – that is to say another released prisoner who is subject to a supervision regime under this Act – that the other prisoner had a conversation with Mr Fardon earlier this week in which Mr Fardon said things to the effect that he, Mr Fardon, intended to leave the precinct, to rid himself of the electronic monitoring device and to go to live somewhere remotely from Wacol and perhaps even interstate.  The information provided to Mr Wilson was also to the effect that Mr Fardon was looking to secure some transport to assist him in this enterprise.  It is clear that if Mr Fardon were to go to live somewhere else – that is away from the Wacol precinct – without the prior permission of the relevant officer from Queensland Corrective Services, that would constitute a contravention of his supervision order.

 

The present question is whether the suspicion which Ms Embrey swears she held was a reasonable one.  There was no challenge to her evidence that she did in fact hold that suspicion.  The facts which would make a suspicion a reasonable one can in some cases fall short of the facts which would found a reasonable belief, let alone facts which would prove the matter which is suspected.  This was in George v Rockett (1990) 170 CLR 104 and in particular in the judgment of the plurality at 115 where the Court, citing what was said by Lord Devlin in Hussein v Chong Fook Kam [1970] AC 943 said that:

 

The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.

 

Their Honours also cited what was said by Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303 that:

 

A suspicion that something exists is more than a mere idle wondering whether it exists or not;  it is a positive feeling of actual apprehension or mistrust, amounting to a “slight opinion, but without sufficient evidence”.

 

As matters presently appear, there would be a real potential to challenge the reliability of the information which was provided to Mr Wilson.  I emphasise that that is as matters presently appear. But the question for today is not whether it is established that Mr Fardon did say these things or more generally that Mr Fardon is likely to breach his contravention order.  Rather, today’s question is whether the suspicion which was held by Ms Embrey was one which was reasonable. 

 

In my conclusion, it was reasonable for her to suspect that fact.  The information which was provided was provided by someone who, on his account, had learnt of Mr Fardon’s intentions from Mr Fardon himself. Of course what that informant said to Ms Wilson may be quite untrue and may have been said to procure some advantage for that person within the regime that applies at this Wacol precinct. Nevertheless, the fact that he said it does provide a reasonable basis for a suspicion and that is all which is required to engage section 20 of this Act.  I therefore decline to set aside the warrant. 

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Fardon

  • Shortened Case Name:

    Attorney-General v Fardon

  • MNC:

    [2014] QSC 221

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    03 Sep 2014

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC No 5346 of 2003 (no citation)27 Jun 2003Attorney-General applied for interim detention order under s 8(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003; defendant contended that s 8 of the Act was void as a result of incompatibility with Chapter III of the Constitution; interim detention order made and constitutional challenge reserved: Muir J
Primary Judgment[2003] QSC 20009 Jul 2003Determination of defendant's constitutional challenge heard on 27 June 2003; challenge dismissed: Muir J
Primary Judgment[2003] QSC 33102 Oct 2003Attorney-General applied for interim detention order under s 8(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 pending final hearing; interim detention order made: Atkinson J
Primary Judgment[2003] QSC 37906 Nov 2003Substantive hearing of Attorney-General's application for continuing detention order pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003; continuing detention order made: White J
Primary Judgment[2005] QSC 13711 May 2005Attorney-General applied for review of continuing detention order pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003; continuing detention order maintained: Moynihan SJA
Primary Judgment[2006] QSC 527 Jan 2006Defendant applied for declarations that annual reviews pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 were required by certain dates and also sought an order that the continuing detention order be rescinded; application dismissed: Philippides J
Primary Judgment[2006] QSC 27527 Sep 2006Attorney-General applied for review of continuing detention order pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003; supervision order proposed and application re-listed for finalisation within 30 days: P Lyons J
Primary Judgment[2006] QSC 33607 Nov 2006On the resumed hearing of the Attorney-General's application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003; continuing detention order made by White J on 6 November 2003 rescinded and supervision order imposed: P Lyons J
Primary Judgment[2007] QSC 29919 Oct 2007Attorney-General applied to amend, or alternatively rescind, the supervision order imposed by P Lyons J on 7 November 2006; supervision order amended: Wilson J
Primary Judgment[2011] QSC 1816 Feb 2011Defendant applied for orders pursuant to s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 seeking dismissal of a contravention application brought against him, or alternatively for an order that he be released pending determination of that application; application dismissed: A Lyons J
Primary Judgment[2011] QSC 12820 May 2011Attorney-General applied for orders pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that defendant be detained in custody for an indefinite term of care: ordered that defendant be released from custody subject to a supervision order: Dick A/J
Primary Judgment[2013] QSC 1213 Feb 2013Attorney-General applied for review pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 of continuing detention order imposed by Court of Appeal on 1 July 2011; continuing detention order made on 1 July 2011 rescinded and supervision order imposed: Mullins J
Primary Judgment[2013] QSC 26427 Sep 2013Attorney-General applied for annual review pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that defendant remain subject to continuing detention order made on 1 July 2011 in [2011] QCA 155; proposed that detention order be rescinded and supervision order imposed: P Lyons J
Primary Judgment[2013] QSC 27604 Oct 2013Attorney-General applied for a stay of the orders proposed in [2013] QSC 264 pending determination of a proposed appeal to the Court of Appeal; application dismissed: P Lyons J
Primary Judgment[2014] QSC 22103 Sep 2014Defendant applied to set aside a warrant issued pursuant to s 20 of the Dangerous Prisoners (Sexual Offenders) Act 2003; application dismissed: PD McMurdo J
Primary Judgment[2015] QSC 2010 Feb 2015Defendant applied for costs of the hearing before PD McMurdo J on 3 September 2014 and 16 September 2014; Attorney-General ordered to pay the defendant's costs of and incidental to the application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003: P Lyons J
Primary Judgment[2018] QSC 193 [2018] 36 QLR27 Aug 2018Attorney General applied to set a date for the hearing of an application for a further supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003; application dismissed: Jackson J
Primary Judgment[2019] QSC 2 [2019] 4 QLR09 Jan 2019Attorney-General applied for an order that defendant be subject to a further supervision order for five years pursuant to s 19B and s 19C of the Dangerous Prisoners (Sexual Offenders) Act 2003; application dismissed: Bowskill J
Appeal Determined (QCA)[2011] QCA 15501 Jul 2011Attorney-General appealed against orders of [2011] QSC 128; appeal allowed, order of 20 May 2011 set aside and order made that defendant be detained in custody for an definite term for care, control or treatment: de Jersey CJ, Fraser JA and Mullins J
Appeal Determined (QCA)[2013] QCA 299 [2013] 42 QLR10 Oct 2013Attorney-General applied for a stay of the orders made by P Lyons J in [2013] QSC 264 pending appeal; stay granted pending determination of appeal: Morrison JA
Appeal Determined (QCA)[2003] QCA 41623 Sep 2003Defendant appealed against [2003] QSC 200; whether Dangerous Prisoners (Sexual Offenders) Act 2003 fell within legislative competence of Queensland Parliament; defendant's appeal dismissed: de Jersey CJ, M McMurdo P and Williams JA
Appeal Determined (QCA)[2006] QCA 51204 Dec 2006Attorney-General appealed against [2006] QSC 336; whether primary judge erred in releasing defendant subject to supervision order; appeal dismissed: M McMurdo P, WIlliams JA and White J
Appeal Determined (QCA)[2011] QCA 11103 Jun 2011Attorney-General applied for a stay pending appeal against the orders made in [2011] QSC 128; application granted and stay imposed: Chesterman JA
Appeal Determined (QCA)[2013] QCA 1614 Feb 2013Attorney-General applied for a stay pending appeal of the orders made in [2013] QSC 12; application granted and stay imposed: Muir JA
Appeal Determined (QCA)[2013] QCA 6428 Mar 2013Attorney-General appealed against [2013] QSC 12; whether primary judge erred in setting aside continuing detention order; appeal allowed, orders below set aside and matter remitted for re-hearing: Muir and Gotterson JJA and Atkinson J
Appeal Determined (QCA)[2013] QCA 365 (2014) 306 ALR 300; [2014] 2 Qd R 53206 Dec 2013Attorney-General appealed against [2013] QSC 264; defendant filed a notice of contention and Attorney-General applied for a statement of case for opinion: appeal dismissed and declaration that ss 3 and 6 of the Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 are invalid: Holmes, Muir and Fraser JJA
Appeal Determined (QCA)[2018] QCA 251 [2019] 2 Qd R 48703 Oct 2018Attorney-General appealed against [2018] QSC 251; appeal allowed, leave for Attorney-General to adduce further evidence granted, trial judge ordered to hear application for further supervision order and supervision order extended: Holmes CJ, Gotterson JA and Henry J
HCA Interlocutory Judgment[2003] HCATrans 48820 Nov 2003Defendant applied for expedition of his application for special leave to appeal against [2003] QCA 416; application granted: Callinan J
Special Leave Granted (HCA)[2003] HCATrans 53312 Dec 2003Defendant applied for special leave to appeal against [2003] QCA 416; special leave granted: Gummow and Kirby JJ
HCA Judgment (2004) 223 CLR 575 (2004) 210 ALR 50 (2004) 78 ALJR 151901 Oct 2004Defendant granted special leave to appeal against [2003] QCA 416; appeal dismissed: Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

Appeal Status

Appeal Determined (QCA) - Appeal Determined (HCA)

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