I have read Professor Nurcombe's report and am aware of the risk factors which it identifies. I am, however, satisfied as I have said by reason of the undertakings offered that in the short term the risks are not unacceptable.

I am further influenced in my view that I should not accede to the Attorney's application by the failure of the applicant to provide any explanation for why the originating application was not brought in a timely way.

The Act permits an application to be made at any time during the last six months of the prisoner's period of imprisonment. This application was not brought until one and a half months before the prisoner's date for release.

It appears that the psychiatrists are - or will be - agreed that subject to the formulation of a proper supervision regime this is a case for release under a supervision order, not for continuing detention. Indeed, Professor Nurcombe said in his report:

"From a rehabilitative point of view there is no utility in keeping Mark Foy in prison where he is receiving no treatment and where he spends his time isolating himself from other paedophilic inmates or mimicking rooster calls to divert the intimidation of inmates who are not sex offenders. However, without community treatment and support he is highly likely to commit further sexual offences against children."

And he goes on to detail why he is of the view that community support and supervision is desirable. That, of course, was written with a view to the section 13 hearing but it makes the point that in the long term this is not a case for continuing detention.

The short-term problem has arisen because it was only last Friday when the respondent was notified that the Attorney would be seeking his continued detention during the period of an adjournment. His solicitors have made efforts to find suitable accommodation for him in that time and they appear, having regard to the material in the affidavit of Ms Bell, to have had some success.

On the other hand, despite the time from the beginning of last week until now, over a week, during which the applicant could have prepared material to explain the delay, no such material has been prepared. This has continued to be the Attorney-General's position even after I pointed out the deficiency yesterday and suggested that the one day adjournment which the respondent needed to seek accommodation might usefully be used by the applicant to explain why it took four and a half months to bring the application.

There has been an affidavit filed which deposes to the current procedures and to the causes of delay from the time that the application was brought.

The affidavit is ostentatiously silent on why there was delay prior to the bringing of the application and I can only conclude that this silence is deliberate.

Those circumstances therefore strengthen the respondent's case for allowing the law to take its course in relation to him.

The undertakings should be given to the Court in writing and signed by him.

I propose, upon receipt of such undertakings, to make that document Exhibit 3 and thereupon I shall order that upon the respondent's giving the undertakings set out in Exhibit 3 the application for an interim detention order be dismissed and the application otherwise be adjourned to the 22nd of December 2004 with costs reserved. The reservation of costs will include the reservation of the question of whether costs orders are available in these sorts of application.

The document to be prepared for the exhibit should be as per paragraph 2 of the draft which has been provided to me, save that it should begin with words like, "I hereby undertake to the Court as follows." Appropriate amendments should be made to the geographical places referred in paragraph (a), (b); paragraph (d) is 100 metres; geographical amendments are required in (f); there is deletion of place of residence in (g) and I think that is the lot.

HIS HONOUR: The order is, that upon the respondent giving the undertakings set out in exhibit 3, order that the application for an interim detention order be dismissed and the application otherwise be adjourned to the 22nd of December 2004, with costs reserved.