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The question in this case was whether a review hearing pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is a proceeding for the imposition of a penalty so as to attract the privilege against self-exposure to a civil penalty and the privilege against self-incrimination. Ultimately, Davis J held that while a continuing detention order operated to protect the community, it also imposed a penalty on the respondent and therefore enlivened the privileges. His Honour held that the privileges would be protected if the respondent was ordered to give evidence in defence of the application by filing and serving an affidavit at the close of the applicant’s evidence (if he elected to do so).
21 May 2021
In March 2016, Mr Currie became the subject of a continuing detention order (CDO) under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). .
An application was made by the Attorney-General to review the CDO and the Attorney-General sought directions for the case to be managed. . This was the fifth review of the CDO. .
At the fourth review, evidence was before the Court from three psychiatrists as well as Mr Nick Smith, a clinical psychologist. Mr Smith gave evidence that Mr Currie had “shown definite improvement” over the course of their sessions. . A key issue during the fourth review was the effectiveness of Mr Smith’s treatment if Mr Currie was living in the community. .
All three psychiatrists held the view that if Mr Currie could remain incident free in prison for a period of 12 months, this may demonstrate that Mr Smith’s treatment had effected permanent change. .
Ultimately, Davis J held that Mr Currie may be ready for release in early 2021, if he could remain incident free in prison for 12 months. .
Therefore, at the fifth review, the subject of this judgment, the central issue was Mr Currie’s behaviour in prison over the last 12 months. .
The Attorney-General alleged that Mr Currie has been in 28 incidents in prison. –. The Attorney-General sought directions that Mr Currie be ordered to file and serve a response to the incidents in the schedule and to swear an affidavit. .
The making of this affidavit gave rise to issues concerning Mr Currie’s right to maintain privilege against self-incrimination (“the incrimination privilege”) and the privilege against self-exposure to a civil penalty (“the penalty privilege”). .
Section 13 is the key section of the DPSOA. Sections 13(1) and 13(2) operate together so that if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or from custody without an order, then the prisoner “is a serious danger to the community in the absence of [an order]”. His Honour explained that this “jurisdictional fact … must be proved before the discretion to make orders pursuant to s 13(5) arises”. .
Section 30 of the DPSOA provides for the review of a CDO. . Justice Davis explained that “[s]ection 30 mirrors s 13”. The jurisdictional fact having been proved in the proceedings for orders under s 13 must be proved again on the review of the CDO. .
Six of the incidents, if proved, would constitute assaults against prison staff. The other incidents would either be discrete criminal offences or constitute a breach of prison discipline for which Mr Currie is exposed to a penalty. .
That the conduct alleged against Mr Currie, if proved, could expose him to either criminal prosecution or disciplinary sanction was sufficient to give rise to consideration as to how the two privileges should be protected. . However, Justice Davis also observed that “the review proceedings under the DPSOA themselves may be a process for the imposition of a civil penalty”. .
The ultimate question in these proceedings was therefore whether the review proceedings were a proceeding for penalty. .
Justice Davis noted that the onus is on the Attorney-General to prove the “jurisdictional fact” (i.e. that there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or from custody without an order) when seeking a CDO and when the CDO is under review. .
Once the Attorney-General proves the jurisdictional fact, then the offender may remain the subject of a CDO or he may be released only on the basis of compliance with a supervision order. .
Justice Davis explained that the provisions of the DPSOA make clear that the making of orders under s 13 or s 30 are “not to punish [the offender] but to protect the community”. .
Quoting Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, , Davis J observed that “[t]o determine whether detention is punitive, the question, whether the impugned law provides for detention as punishment or for some legitimate non-punitive purpose, has to be answered”. .
Ultimately, His Honour held that “the deprivation of liberty of a convicted sex offender based upon proof of the fact that the offender is an unacceptable risk of committing a serious sexual offence is released, does penalise the offender in the sense required to enliven the privilege”. . While the order may protect the community, as it had adverse consequences for Mr Currie, Justice Davis determined that the proceedings were ones for the imposition of a penalty. .
How to protect the privilege
Justice Davis held that the privileges would be protected if Mr Currie was ordered to deliver an affidavit of his evidence in chief before he gives evidence (if that is his election). .
A Hughes of Counsel