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Queensland Judgments
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Attorney-General for the State of Queensland v WTA

Unreported Citation: [2020] QSC 300
EDITOR'S NOTE

This matter concerns the dissolution of a supervision order. It was determined that there was no jurisdiction to have made the supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 as the convictions which formed the basis of the supervision order were set aside. The convictions were quashed after the respondent was found to have lacked the capacity to plead. The ramifications for dissolving the supervision order meant that the respondent would likely lose his accommodation and become homeless. Cognisant of this outcome, Davis J adjourned the matter for mention so that appropriate accommodation arrangements could be put in place.

Davis J

2 October 2020

Background

The respondent was a 48 year old Indigenous man. [5].

In November 1990, he was placed on probation after pleading guilty to two counts of carnal knowledge against the order of nature, one count of permitting carnal knowledge against the order of nature with a child under the age of 16 and three counts of permitting carnal knowledge against the order of nature (“the 1990 offences”). These offences concerned sexual activity with a number of boys. [6].

In December 2014, the respondent pleaded guilty to a number of offences of a sexual nature against children (“the 2014 offences”). The convictions for the offences formed the basis of the supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the DPSOA”). [8].

For the purposes of the applicant’s application for the supervision order, the respondent was examined by psychiatrists. Their assessment was not straightforward as the respondent was a schizophrenic and a long-term abuser of alcohol, as well as other substances. One psychiatrist, Dr Beech, was of the view that the respondent may have been suffering paedophilia of a homosexual orientation but was unable to confirm that diagnosis. The other psychiatrist, Dr Grant, diagnosed the respondent with paedophilia. [9].

In April 2017, the respondent was placed on a supervision order. Burns J found that while the respondent was a serious danger to the community, the risk could be managed by a supervision order, provided the respondent was housed in supported accommodation. [10].

The respondent breached the supervision order on a number of occasions. [11]–[12].

During the proceedings for the first contravention, Dalton J observed that “this man should never have pleaded. At an IQ of 48, he’s not fit for trial”. [13]. During the second contravention proceedings, a medical doctor stated that the respondent “had been permanently unfit for many decades”. [14].

After the Office of the Public Guardian was appointed to the respondent, both the 1990 and 2014 convictions were quashed on the basis that he was not fit to enter pleas. [16].

After the appeal, the respondent was released pursuant to s 11A(2)(a) of the Bail Act 1980 under a release notice issued under s 11B. He case was also referred to the Mental Health Court (“MHC”). [17].

Matter of the supervision order

By reference to his decision in Attorney-General v CCJ (2019) 2 QR 543, Davis J held that “once the conviction falls, the appropriate course is to dissolve the supervision order”. [20]. It was “inappropriate” for him to remain the subject of a supervision order. [24]. Further, any future contravention of the supervision order made him liable to punishment. [24].

Concerns were raised however that the respondent would lose his accommodation and other support services if the supervision order was dissolved. Accordingly, Davis J adjourned the matter for mention, where it was determined that the respondent could continue to reside in his current supported accommodation funded by the NDIS until the Mental Health Court proceedings were resolved. [28], [30].

Once the matters of his accommodation were resolved, Davis J ordered that the respondent’s supervision order be set aside pursuant to Div 3 Pt 2 of the DPSOA. [1]–[2], [31].

Davis J also ordered that the respondent be released on bail pursuant to s 11B of the Bail Act 1980 [1], [3]. In making this order, Davis J observed that the Supreme Court of Queensland had the power to vary the order of the District Court made under s 11A. While an order made under s 11A is not a grant of bail, the term “grant bail” in s 10(1) extended to making an order under s 11A. This was said to follow from the terms of the Bail Act 1980 as a whole. His Honour noted that: “the power to ‘enlarge, vary, or revoke bail’ would include a power to vary an order made under s 11A even though it was made in the District Court”. [43].

A Hughes of Counsel

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