Attorney-General for the State of Queensland v Hynds [2013] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION: Attorney-General for the State of Queensland v Hynds [2013] QCA 124

PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v GREGORY ALAN HYNDS (respondent) KELVIN ANDERSON (CHIEF EXECUTIVE OFFICER OF QUEENSLAND CORRECTIVE SERVICES) (not a party to the appeal)

FILE NO/S: Appeal No 11156 of 2012 SC No 7584 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 24 May 2013

DELIVERED AT: Brisbane

HEARING DATE: 30 April 2013

JUDGES: Muir JA and Philippides and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. Leave to amend the notice of appeal to insert paragraph 3(b) in terms of the amended notice of appeal filed on 10 **December 2012 be granted.**2. **Appeal be allowed.**3. Order 5 of the orders made on 22 **October 2012 be set aside.**4. Schedule A to the supervision order made on 22 October 2012 be varied by the deletion of paragraph **40 thereof.**5. Paragraph 14 of schedule A to the supervision order made on 22 October 2012 be varied by substituting “requirement 3” for “requirement 2”.

CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the primary judge ordered that the respondent be released from custody pursuant to a supervision order – where paragraph 14 of the supervision order stipulated that the respondent may reside only at the address specified or ‘such other address … as the court may approve’ – where paragraph 40 of the supervision order required the respondent to file affidavits by his mother and another person containing undertakings by the deponents that they report breaches of the supervision order to Corrective Services officers – where the appellant contends that paragraphs 14 and 40 of the supervision order were beyond the primary judge’s jurisdiction – where the appellant submits that paragraph 14 usurps the supervising function vested by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in Corrective Services officers – where the appellant submits that the primary judge did not have power to impose requirements on third parties – where the appellant seeks the deletion of paragraph 40 and the variation of paragraph 14 – where the respondent supports the deletion of paragraph 40 – where the respondent contends that paragraph 14 should be deleted also – whether the primary judge had power to impose the conditions in paragraphs 14 and 40 of the supervision order / Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 16A, s 16B, s 16C, s 16D, s 18, s 19, s 20, s 21, s 22 / Attorney-General for the State of Queensland v Hynds (No 1) [2012] QSC 55, related Attorney-General for the State of Queensland v Hynds & Anor (No 3) [2012] QSC 318, related Attorney-General for the State of Queensland & Anor v Sambo [2012] QCA 171, considered

COUNSEL: P J Davis SC, with A D Scott, for the appellant The respondent appeared on his own behalf S Hamlyn-Harris for the Chief Executive Officer of Queensland Corrective Services

SOLICITORS: Crown Law for the appellant The respondent appeared on his own behalf Department of Community Safety for the Chief Executive Officer of Queensland Corrective Services

1. MUIR JA: Introduction On 22 October 2012, the primary judge ordered that the continuing detention order made on 7 December 2007 in respect of the respondent be rescinded and that he be released from custody pursuant to a supervision order. The appellant appeals against the supervision order, seeking the deletion of paragraph 40 of the supervision order and the variation of paragraph 14. The respondent supported the deletion of paragraph 40 but not the variation of paragraph 14. He contended that paragraph 14 should be deleted also.

2. Paragraph 40 of the supervision order is:

“Not later than two business days before his release, [the respondent] file and serve herein affidavits by each of his mother and her husband deposing that

the deponent has read and understood these reasons for judgment and this order, including these Requirements;

the deponent has received independent legal advice about the Requirements, about giving the following undertaking to the Court and about the possible consequences of breaching such an undertaking;

the deponent undertakes to report any breach of the Requirements of which he or she becomes aware to a Corrective Services officer immediately upon becoming aware of the breach.”

3. Paragraph 14 of the supervision order is:

“Notwithstanding Requirement 2, reside with his mother at her address disclosed in her affidavit filed in the Supreme Court on 1 March 2012 or at such other address (with or without his mother) as the court may approve;”

4. The appellant seeks to replace paragraph 14 with the following:

“Notwithstanding Requirement 2, reside with his mother at her address disclosed in her affidavit filed in the Supreme Court on 1 March 2012 or at such other address (with or without his mother) within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;”

5. The Chief Executive of Queensland Corrective Services was joined as the second respondent to the proceeding at first instance on his own application.¹ The appellant applied to amend the notice of appeal to join the Chief Executive as the second respondent and to amend paragraph 14 in the above terms: the original notice of appeal sought the deletion of paragraph 14. The respondent opposed the joinder and the amendment to the notice of appeal. On the hearing of the appeal, the Court refused the joinder application on the basis that, as no order was sought against the Chief Executive, the Chief Executive was not a proper party to the proceeding. Mr Hamlyn-Harris, of counsel, who appeared for the Chief Executive, offered to assist the Court as amicus curiae. As the Court already had the benefit of written submissions filed on behalf of the Chief Executive, Mr Hamlyn-Harris’ offer was declined.

6. The amendment to the notice of appeal in respect of paragraph 14 of the supervision order does not prejudice the respondent in any way and I would order that the appellant have leave to amend the notice of appeal to insert paragraph 3(b) in terms of the amended notice of appeal filed on 10 December 2012.

The appellant’s arguments

7. The appellant’s contentions were to the following effect. Paragraphs 14 and 40 of the supervision order were beyond the primary judge’s jurisdiction. Paragraph 14 usurps the function of supervising the respondent vested by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) in Corrective Services officers.² Moreover, the Court’s jurisdiction is at an end upon the making of a supervision order. The jurisdiction is capable of being re‑enlivened only where there are alleged contraventions of the supervision order or where amendment or extension of the duration of the order is sought.³

8. Paragraph 40, by requiring the respondent to file affidavits by his mother and another person containing undertakings by the deponents that they report breaches of the supervision order to Corrective Services officers, provides for the enforcement of requirements directed to third parties by way of undertakings. Paragraph 40 is beyond power. The Court’s jurisdiction in the making of a supervision order is limited to including requirements directed to the prisoners the subject of such orders, not third parties.⁴

Consideration of the validity of paragraph 14

9. Part 2, Division 3B of the Act, which contains sections 16, 16A, 16B, 16C and 16D, contemplates that the supervision of a prisoner released under a supervision order will be undertaken by Corrective Services officers. Section 16(1) requires that a supervision order, or interim supervision order, contain a requirement that a prisoner released from custody under a supervision order “be under the supervision of a corrective services officer”⁵ and “comply with any reasonable direction under section 16B given to the prisoner”.⁶ Section 16B relevantly provides, that:

“(1)A corrective services officer may give a released prisoner a reasonable direction about—

(a) the prisoner’s accommodation…”

Such a reasonable direction could concern the location of the place in which the prisoner may or may not reside.

10. I am unable to accept that paragraph 14 is inconsistent with the power conferred on a Corrective Services officer by s 16B as, under paragraph 14, the respondent may reside only at the address specified in paragraph 14 or “such other address … as the court may approve”. Section 19 of the Act provides that the Court may, on application, amend the requirements of a supervision order. It prescribes requirements which must be satisfied before such an amendment may be made. Under s 18, such an application must be made either by the prisoner or by the Chief Executive with the Attorney-General’s consent. Section 18 also provides for the giving of notice of any such application.

11. The supervision order was made pursuant to the Act. It contained the requirements prescribed by s 16 and, as permitted by s 16(2), other requirements the Court considered appropriate to ensure adequate protection of the community or “for the prisoner’s rehabilitation or care or treatment”.⁷ In these circumstances, I consider it plain that the approval of the Court referred to in paragraph 14 refers to an approval given on an application under s 18 of the Act. It is apparent from s 16, s 16A and s 16B(1)(a) that the Act does not contemplate a general role for the Court in determining and approving the changes in a prisoner’s accommodation which may be needed from time to time. However, as senior counsel for the appellant accepted, circumstances may be such that a court may make it a requirement of a supervision order that the prisoner reside (other than on a short term basis) only at a particular address.

12. The evidence disclosed that the address referred to in paragraph 14 was considered by the parties to be the only suitable dwelling in which the respondent could reside. It is apparent from his reasons that the primary judge attached considerable importance to the respondent’s place of residence as a factor lowering the risk of his reoffending. It was not argued or demonstrated that this was not an exceptional case in which it was appropriate for the supervision order to specify only one place in which the respondent could reside.

13. The respondent was concerned that paragraph 14, if retained, could involve him in difficulties and place him in breach of the supervision order if his mother was in rental accommodation and was obliged by circumstances to move at short notice. The respondent’s concerns are not well founded. Senior counsel for the appellant accepted that paragraphs 14 and 15 needed to be read together and that paragraph 14 did not render paragraph 15 nugatory. Paragraph 15 provides:

“Not stay at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer, and comply with all reasonable conditions upon that permission;”

14. Senior counsel’s concession was well founded.

15. Accordingly, if circumstances require the appellant’s mother to change accommodation, it would be open to a Corrective Services officer to grant to the respondent permission to stay elsewhere on a short term or overnight basis.

16. There is one other matter which needs to be addressed in relation to paragraph 14. The reasons contemplate that approval in respect of paragraph 14 may be obtained pursuant to the liberty to apply granted by the primary judge in the orders made on 22 October 2012. As remarked earlier, the Act makes provision for the way in which supervision orders are to be varied. I would therefore vary the primary judge’s orders by setting aside paragraph “5. Liberty to apply generally”.

Consideration of the validity of paragraph 40

17. I turn now to a consideration of paragraph 40.

18. In my view, the primary judge erred in including paragraph 40 in the supervision order. It is inherently undesirable, both socially and in terms of public policy, to impose on a mother of a prisoner and her partner, or husband, an obligation to inform the authorities should the mother or partner, as the case may be, become aware of any breach of the requirements of a supervision order. Plainly, the fulfilment of such an obligation could lead to stresses and discord in, or the breakdown of, the relationships between the parties.

19. The requirements of paragraph 40 are potentially extremely onerous. The order has 40 paragraphs. Whether a prisoner has breached the terms of the order may be difficult to ascertain and it may be difficult for a deponent to understand whether a reportable breach has occurred. It is undesirable that there be a requirement of this nature which may require the expenditure of money by a person, other than the prisoner, in obtaining legal advice and which potentially exposes the person to criminal or quasi-criminal sanctions. It is also generally undesirable to have a requirement of a supervision order with which the person cannot comply without the consent and cooperation of others.

20. As was held in Attorney-General for the State of Queensland & Anor v Sambo,⁸ s 16 contemplates the imposition of “requirements” only on prisoners. Paragraph 40 does not directly impose any obligation on the nominated deponents to file an affidavit, obtain legal advice or to give an undertaking. Nevertheless, the appellant submits that such obligations are imposed indirectly or as a practical matter and are beyond the power of the Court. I have some sympathy with the argument advanced in this regard on behalf of the Attorney but I am reluctant to decide the question in the absence of argument from a contradictor. Having regard to the conclusion about to be stated, it is unnecessary for me to consider that question any further.

21. The consequence of compliance with paragraph 40 is that each deponent will be subject to an indefinite obligation to report to a Corrective Services officer any breach of the requirements of which he or she becomes aware. That obligation, in my view, is inconsistent with s 16, s 16A, s 16B, s 16C and s 20, which contemplate that the function of supervising a prisoner is vested in Corrective Services officers. It does not contemplate that lay persons with no relevant expertise be conscripted to assist departmental officers in this serious and demanding role.

22. For the above reasons I would order that the appeal be allowed, that order 5 of the orders made on 22 October 2012 be set aside and that the schedule A to the supervision order made on 22 October 2012 be varied by the deletion of paragraph 40 thereof. In order to correct an obvious slip, I would also order that paragraph 14 of schedule A be varied by substituting “requirement 3” for “requirement 2”.

Footnotes

1. Attorney-General for the State of Queensland v Hynds (No 1) [2012] QSC 55. ↩

2. Sections 16(1), 16A, 16B, 16C and 16D of the Act. ↩

3. Sections 20-22 and Part 2, Divisions 4 and 4A of the Act. ↩

4. Attorney-General for the State of Queensland & Anor v Sambo [2012] QCA 171 at [17]. ↩

5. Section 16(1)(d). ↩

6. Section 16(1)(daa). ↩

7. Section 16(2)(b) of the Act. ↩

8. [2012] QCA 171 at [17]. ↩