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This case considers an application by the Attorney-General under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 alleging that the respondent was “likely” to contravene a supervision order. Following his release on a supervision order on 16 April 2020, the respondent was arrested, on 21 December 2020 pursuant to a warrant, on the basis that the respondent was likely to contravene the supervision order. In reaching the view that the respondent be released from custody subject to the supervision order, Davis J held that the Attorney-General bore the onus of proving the jurisdictional fact, namely that the respondent was likely to contravene the supervision order before the discretion to make orders arose.
30 March; 16 April 2021
Mr Lawrence was born on 9 August 1961. He has a complicated criminal and psychiatric history which is characterised by cognitive deficits, anti-social personality disorders and paraphilia sexual sadism. .
In 1985, Mr Lawrence informed Dr Joan Lawrence, Psychiatrist, that he had, since about the age of 15, wanted to “kill a girl”. . In 1983, Mr Lawrence and another patient killed a young female patient. . Mr Lawrence offended while in prison, including raping a fellow prisoner. .
In 2008, Mr Lawrence was made the subject of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the DPSOA”). .
In April 2020, Bowskill J made orders rescinding the CDO and releasing Mr Lawrence on a supervision order with special conditions. , .
A warrant for Mr Lawrence’s arrest issued on the basis of a reasonable suspicion that Mr Lawrence was likely to contravene the special conditions. On 21 December 2020, he was brought before the Court and remanded in custody. .
The Attorney-General applied for orders consequent upon the likely contravention. .
The Attorney-General did not allege any actual contravention of the supervision order. It alleged that Mr Lawrence was “likely” to contravene certain conditions. .
Construction of the legislative provisions
In his reasons, Davis J stated that “[t]here are two points in time when likeliness of a breach of a supervision order is critical”. .
The first is upon the issue of the warrant under s 20. . At this point in time, the Magistrate does not exercise a discretion. Rather, the Magistrate must issue a warrant if satisfied the grounds for issuing the warrant exist. . That is what occurred in this case.
The second point in time is at the final hearing required by s 22, which is the first occasion where a Court considers “the fact of a likely contravention”. . Further, the Magistrate is required to make this assessment at the time the Court is to make the orders under s 22. .
While the DPSOA does not provide which party bears the onus of proving the likelihood of breach, in his Honour’s view the onus rests with the Attorney-General. .
Justice Davis explained that:
“The likelihood of contravention is the jurisdictional fact, proof of which entitles the Attorney-General to seek discretionary relief. Upon proof of the jurisdictional fact, the onus then shifts to the prisoner under ss 22(2) and (7) to establish that ‘the adequate protection of the community can, despite the … likely contravention of the existing order be ensured by [the supervision order]’.” .
The respondent is not required to disprove the jurisdictional fact. . It is only where the applicant satisfies the Court of the jurisdictional fact that the respondent is required to establish, if he can, that the adequate protection of the community can be ensured by his release on supervision. .
Thus, the Attorney-General was required to prove that Mr Lawrence now is likely to contravene a requirement of the supervision order. . Only if the Court was so satisfied was Mr Lawrence required to show that adequate protection of the community could be ensured by his release on supervision. .
Ultimately, His Honour held that the Attorney-General failed to prove that Mr Lawrence now is likely to contravene the supervision order. .
A Hughes of Counsel