Attorney-General v Lawrence[2015] QSC 11

SUPREME COURT OF QUEENSLAND

[1] Section 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) deals with the periodic review of continuing detention orders. Section 27(1C) requires each annual review after the completion of the hearing for the first review to “start within 12 months after the completion of the hearing for the last review under this section”. The issue that needs to be decided in this matter is whether the completion of the hearing occurs on the last date of the hearing before the primary judge or, if there has been an appeal, on the last date of any hearing before the Court of Appeal.

[2] If the former, then the next annual review must start by 14 February 2015.  If the latter, then the relevant date is 25 June 2015.  In this case an application for special leave to appeal is on foot to the High Court but the parties proceeded on the basis that such an appeal was not by way of re-hearing and was not relevant to the question of construction before me.[1]

Legislation

[3] The Act’s objects are set out in s 3 and are:

“(a)to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b)to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

[4] Part 2 of the Act deals with continuing detention or supervision, including the conduct of a preliminary hearing where the court must determine whether it is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of an order under Division 3 of Part 2.  If so, then a date must be set for the hearing of an application for a Division 3 order and the court may order that the respondent undergo psychiatric examination.  Final orders are then made under Division 3 if the court is satisfied that the prisoner is a serious danger to the community in the absence of such an order.

[5] Once an order has been made under that Division, Part 3 provides for regular review of the prisoner’s continued detention; s 26.  Section 27’s relevant provisions include:

“27 Review—periodic

(1)If the court makes a continuing detention order, it must review the order at the intervals provided for under this section.

(1A)The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect.

(1B)There must be subsequent annual reviews while the order continues to have effect.

(1C)Each annual review must start within 12 months after the completion of the hearing for the last review under this section.”

[6] The “court” in s 27(1) is defined to mean the trial division of the Supreme Court of Queensland in the dictionary of the Act.  Section 30 deals with the review hearing where the principal issue for the court is whether the decision made under s 13 that the prisoner is a serious danger to the community in the absence of a Division 3 order should be affirmed and then to determine whether to continue the continuing detention order or make a supervision order in respect of the prisoner.

[7] Part 4 of the Act then provides for appeals to the Court of Appeal.  By s 32 an appeal must be started within one month after the decision is made, a different expression from the words “after the completion of the hearing” in s 27(1C).

[8] Section 43 sets out the Court of Appeal’s powers on an appeal in the following terms:

“43 Court of Appeal’s powers on appeal

(1)An appeal is by way of rehearing.

(2)The Court of Appeal -

(a)has all the powers and duties of the court that made the decision appealed from; and

(b)may draw inferences of fact, not inconsistent with the findings of the court; and

(c)may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and

(d)may order that the matter be remitted to the court for rehearing.

(3) subsection (2)(a) does not limit the powers that the Court of Appeal has in its civil jurisdiction.

(4)If the Court of Appeal orders that the matter be remitted to the court for rehearing and is satisfied the matter may not be reheard until after the prisoner’s release day, the Court of Appeal may make an order -

(a)that the prisoner’s release from custody be supervised; or

(b)that the prisoner be detained in custody for the period stated in the order.”

The submissions

[9] The Attorney-General’s submissions were that, read in context, the “hearing” in the phrase “after the completion of the hearing for the last review under this section” in s 27(1C) occurred once the court had heard all the evidence and received all submissions even though judgment may not then have been delivered.  No submission to the contrary was made by Mr Allen QC for the respondent. 

[10] His submissions focussed on the meaning of the words in s 27(1C) in context, including the use of the word “court” in s 27(1) and its definition in the dictionary as the trial division of the Supreme Court of Queensland.  He submitted that the references to “the court” in Part 3 are clearly to the trial division so that s 27 could not properly be construed as referring to a review by the Court of Appeal in any circumstances.

[11] He argued that, therefore, the completion of the hearing for the last review occurred once the trial division heard evidence and received submissions and was not affected by an appeal to the Court of Appeal. 

[12] Mr Davis QC for the Attorney-General, however, relied upon the terms of s 43 to argue that the appeal was one by way of re-hearing in the traditional sense where the Court of Appeal may disturb findings made at first instance and draw its own inferences from findings made below that are not inconsistent with the findings of the judge of the trial division.  Such a rehearing was, he submitted, equivalent to a review under s 27.

[13] Mr Allen argued that such an approach was contrary to the plain and unambiguous meaning of s 27(1C) and contrary to the express legislative purpose of ensuring that continuing detention be subject to regular review.  He also submitted that the construction was inconsistent with the principle of legality because of its possible effects on extending the continuing detention of a prisoner beyond the mandated starting time for the fresh review.  He submitted that no such intention was clearly manifested by unambiguous language in the statute “which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment”.[2] 

Consideration

[14] The argument that the appeal to the Court of Appeal is by way of re-hearing does not, to my mind, permit the conclusion that the re-hearing equates to a “hearing before the last review under this section” in s 27(1C).[3]  That the “court” in s 27(1) is the trial division of the Supreme Court is significant and the power to re-hear provided by s 43 is not equivalent to a review under s 27.  It is inhibited to some extent by the provision in s 43(2)(b) that the Court of Appeal may draw inferences of fact, but not ones inconsistent with the findings of the court.  It also seems significant to me that the Court of Appeal may order that the matter be remitted to the trial division for re-hearing pursuant to s 43(2)(d).  Both of those circumstances suggest that any review by way of re-hearing by the Court of Appeal is not equivalent to the “last review under” s 27.  Nor is it a review conducted by the trial division of the Court.

[15] It was argued that such an approach can lead to practical difficulties such as concurrent proceedings either in the Court of Appeal or in the trial division relating to different annual reviews of the detention of the same prisoner.  Mr Allen argued that such difficulties could be managed by staying one set of proceedings while another continued so that absurd results would not ensue. 

[16] That may well be so but it is also necessary to apply the principle of legality expressed in Attorney-General v Phineasa[4] in circumstances where the interpretation advanced for the Attorney-General would have the effect of curtailing the personal liberty of the subject to an extent greater than is justified by the clear language of the Act.

[17] The consequence is that the next annual review must start within 12 months after the completion of the hearing before Philip McMurdo J on 14 February 2014 rather than the hearing of the appeal from his Honour’s order by the Court of Appeal on 25 June 2014. 

Order

Accordingly I shall declare that the date by which the applicant must file an application for the annual review of the respondent’s continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is 14 February 2015.