At first instance, the Attorney-General applied for a further supervision order in relation to the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). The DPSOA provides for a preliminary hearing (s 8) as a pre-requisite for being able to seek orders at a final hearing (s 13). As the Court explained, ‘whereas the final hearing test requires satisfaction the prisoner is a serious danger to the community in the absence of a further order, the preliminary hearing test requires satisfaction there are reasonable grounds for believing that to be so.’ In allowing the appeal, the Court held that the learned primary judge had erred because in determining the application at the preliminary hearing pursuant to s 8 he took into account an irrelevant consideration, namely the standard of proof required pursuant to s 13(3).
Holmes CJ and Gotterson JA and Henry J
3 October 2018
The respondent, Mr Fardon, committed various sexual and violent offences between 1967 and 1988. In 1989, he was sentenced to 14 years imprisonment and served the full term. . Since 2003, Mr Fardon has been the subject of various orders under the DPSOA, including interim detention and supervision orders. The most recent supervision order was imposed in 2013 and was due to expire at midnight on 3 October 2018. Mr Fardon had not contravened that order. The Court noted that Mr Fardon was shortly to turn 70 and it has been thirty years since he last committed an offence. .
The reasons consider the relevant legislative provisions. –. The Court noted that Div 3 orders are finite and the DPSOA requires the Attorney-General to apply afresh for any further detention or supervision orders. . The Act does not, therefore, impose a default position by which past satisfaction of the requirement in s 8(1) carries over. That is, the requirement that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Div 3 order. An application for a further order must also satisfy that threshold test. .
The application in the present case failed at the preliminary hearing. The learned primary judge concluded that the Attorney-General had not shown reasonable grounds and dismissed the application for a further supervision order. .
The Attorney-General’s grounds of appeal were distilled into a single complaint during argument, namely that the learned primary Judge conflated the preliminary hearing test with the final hearing test. .
The Court noted that the test for a preliminary hearing is not as demanding as the test for a final hearing. . Whereas the final hearing test requires satisfaction the prisoner is a serious danger to the community in the absence of a further order, the preliminary hearing test requires satisfaction there are reasonable grounds for believing that to be so. . The evidence before the court by the time of final hearing might be more compelling, one way or the other, than the evidence available at a preliminary hearing. . The fact that, without more evidentiary material, an application might fail to meet the s 13 Div 3 orders test is no part of the s 8 preliminary hearing test. .
The reasons note that reference to s 13 is unavoidable in order to understand the s 8 phrase “serious danger to the community”. However, the Court found that the learned primary judge erred in alluding to the standard of satisfaction, including evidentiary satisfaction, required by s 13(3) when considering what must be proved to satisfy s 8. –. The evidentiary demands set out in s 13(3) relate solely to that provision and are irrelevant to the interpretation of s 8. . The appeal was allowed.
The Court concluded that the Attorney-General had met the standard of satisfaction required under s 8 and made orders to facilitate a final hearing. –.
K Gover of Counsel