After the respondent had become subject to an application and related interim orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSO Act”), his convictions for rape were quashed. The Court hearing the DPSO Act application was required to determine whether, upon the proper construction of that Act, the Court’s jurisdiction to make final orders under that Act remained after the convictions founding the application were quashed. The differing meaning ascribed to the word “prisoner” in ss 5 and 13 DPSO Act meant that on a literal reading, the Court had jurisdiction to make final orders concerning a person that was not convicted of a serious sexual offence, but who remained in custody after their conviction for such an offence was quashed. Davis J dismissed the DPSO Act application and dissolved the interim detention order, finding that the Act was only intended to establish a regime of preventative detention and supervision for those convicted of serious sexual offences.
1 November 2019
In 2016 the respondent pleaded guilty inter alia to three counts of rape for which he received an effective sentence of four years detention. –. In March 2019 the Attorney-General brought an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSO Act”), and the respondent became subject to interim detention orders pending finalisation of the DPSO Act proceedings. –. Evidence obtained during the proceedings raised questions about the respondent’s fitness to plead at the time of his conviction, and after granting an extension of time in which to appeal, the Court of Appeal quashed the convictions and ordered a retrial. –.
With the convictions that founded the DPSO Act proceedings quashed, the Court hearing the matter was required to determine whether, upon the proper construction of the DPSO Act, the jurisdiction to make final orders under that Act remained. –. Difficulty arose because of differing definitions for the word “prisoner” in ss 5, 8 and 13 DPSO Act. –. While proceedings could only be commenced against a “prisoner” (defined as a person convicted of a serious sexual offence) under s 5 DPSO Act, once underway, s 13 DPSO Act authorised the making of final orders against a “prisoner” (there meaning simply “a person who is in the chief executive’s custody”). –.
Although the parties agreed that the application against the respondent under the DPSO Act should be dismissed, they submitted that the dismissal could not be by consent, and required the Court to determine the appropriate outcome. –.
Whether the respondent remained a “prisoner” under the DPSO Act
Davis J highlighted that the objects of the DPSO Act referred to the Act’s concern with “a particular class of prisoner”, and noted that, having regard to the prerequisites for an application under s 5 DPSO Act, the “class” in question could only be a prisoner convicted of a serious sexual offence. –. His Honour reasoned that the purpose of the differing definitions of “prisoner” in ss 5 and 13 DPSO Act was clearly to ensure that proceedings brought while a person was still serving a sentence for a serious sexual offence could continue after the expiration of that term of imprisonment. –.
Davis J identified that a literal reading, ss 8 and 13 DPSO Act did enable orders against a “prisoner” that was not convicted of a serious sexual offence, but who remained in custody for other matters even though the conviction founding an application under s 5 DPSO Act had been quashed. . However, his Honour explained that it was contrary to the objects of the DPSO Act to read the Act in that manner. . Davis J considered that it was clear that the DPSO Act was intended to establish a regime of preventative detention and supervision for those convicted of serious sexual offences, and that the differing definitions of “prisoner” only facilitated that process. .
In those circumstances, and with the respondent’s convictions quashed, Davis J held that the Court had no jurisdiction to make final orders under s 13 DPSO Act. . His Honour noted that, in the event that the respondent was retried and convicted, s 5 DPSO Act would be enlivened, and the Attorney-General would be entitled to bring a further application. .
In the result, Davis J dismissed the application and dissolved the interim detention order. .