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

Unreported Citation:

[2021] QSC 13

EDITOR'S NOTE

This matter concerned an application for release under s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 pending the determination of contravention proceedings. The question was whether the prospect that a continuing detention order will not be made at the contravention hearing amounts to “exceptional circumstances” so as to justify the exercise of the Court’s discretion to discretion to order the respondent’s release. Davis J held that it did not and the Respondent’s application for release was dismissed.

Davis J

12 February 2021

Background

The Respondent was the subject of a supervision order made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the DPSOA”) on 24 July 2017 (“the supervision order”). The Respondent allegedly contravened the supervision order and was taken into custody. The Respondent applied for an order releasing him on supervision pending determination of the contravention proceedings. [1].

Legislative provisions

Section 20 of the DPSOA provides for the arrest of an offender who is suspected of having breached their supervision order. [18]. Following their arrest, the Court may, pursuant to s 21, either order the offender’s detention or their interim release until the resolution of the contravention proceedings. [19]. Relevantly, s 21(4) provides as follows:

“The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist.” [19].

The Respondent therefore bore the onus under s 21(4) of establishing that “exceptional circumstances” existed. [19].

Meaning of exceptional circumstances

Justice Davis observed that the “policy behind s 21(4)” is that an offender should generally be detained until the final determination of the contravention proceedings. [31].

Exceptional circumstances will exist though where the Court is in a position to make a final assessment at the time of an application under s 21(4). [31]. This is because the Court “can be satisfied that the adequate protection of the community can be ensured by the release of the prisoner notwithstanding that the issues relevant to the contravention have not been fully ventilated at a final hearing” (Attorney-General for the State of Queensland v Holroyd [2020] QSC 187, [32]). [28].

At the time of hearing the Respondent’s application, the Court had not received all the evidence relevant to the contravention proceedings. The Court had received only one of two reports from psychiatrists retained by the Applicant to provide reports. [12], [32].

Therefore, the Court was not in a position to assess risk. [32]. Justice Davis noted that at this stage all that could said was that the Respondent “has reasonable, and perhaps good, prospects of success”. [33].

By reference to the reasons of Applegarth J in Attorney-General for the State of Queensland v Dugdale [2009] QSC 358, Davis J accepted that:

“The legislative requirement to show exceptional circumstances should not be undermined by regarding any case in which there is a prospect that there will not be a continuing detention order made at the contravening hearing as exceptional.” [30], [31].

Therefore, the Respondent’s application for release was dismissed. [35].

A Hughes of Counsel

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