Attorney-General for the State of Queensland v Marama [2015] QSC 8

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld),

s 13, s16, s 21(2), s 22.

Evidence Act, 1977 (Qld), s 92.

Attorney-General for the State of Queensland v Dugdale [2009] QSC 358, cited

Attorney-General for the State of Qld and Anor v Francis [2008] QCA 243, cited

Attorney-General for the State of Queensland v Francis [2008] QSC 69, cited

Attorney-General for the State of Qld v Marama [2009] QSC 404, cited

Briginshaw v Briginshaw [1938] HCA 34; (1940) 60 CLR 336, cited

Harvey v Attorney-General for the State of Queensland [2011] QCA 256 considered

Harvey v Attorney -General (Qld) [2014] QCA 146, cited

[1] On 14 December 2009 the respondent was ordered to be released on a supervision order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003.[1] The supervision order, as amended, was to expire on 15 January 2015. No application was made by the Attorney-General under Division 4A of the Act for a further supervision order.

[2] A rape complaint was made against the respondent on 12 October 2014. It related to events which were alleged to have occurred at the respondent's residence in the early hours of that day. The respondent was arrested by police and charged with two counts of rape. On 16 October 2014 an application under s 22 of the Act ("the contravention proceeding") was filed. The requirement of the supervision order that was alleged to have been contravened was the requirement that the respondent "not commit an offence of a sexual nature during the period of the order". On

16 October 2014 the respondent was brought before the court pursuant to a warrant issued under s 20. As required by s 21(2) of the Act, Martin J ordered that the respondent be detained in custody until the final decision of the court in the contravention proceeding.

[3] The police did not proceed with the criminal charges. On 9 January 2015 when the charges came before the Magistrates Court at Townsville no evidence was offered by the prosecution and the respondent was discharged from the two charges of rape. The complainant told police that she did not wish to proceed with the charges.

[4] In these unusual circumstances, the respondent applies for an order under s 21(4) of the Act that he be released from custody subject to his existing supervision order pending the final determination of the contravention proceeding. Section 21(4) provides:

"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."

2. If so, is the respondent's detention in custody pending the final decision of the court under s 22 not justified because of those exceptional circumstances?

[6] The respondent submits that the circumstances amply meet the definition of "exceptional" where:

(a) the sole reason for his arrest and appearance before this court was the alleged commission of offences of a sexual nature;

(b) those charges were discontinued by the police and dismissed;

(c) his supervision order expired on 15 January 2015;

(d) it would be exceptional indeed for someone who was no longer subject to a supervision order to remain behind bars as a result of an alleged contravention amounting to sexual offences which have been dismissed.

[7] The Attorney-General submits that where he must prove the breach to the required civil standard, it is difficult to conclude that the withdrawal of criminal proceedings constitutes "exceptional circumstances".

[8] The meaning of "exceptional circumstances" in s 21(4) was considered in Harvey v Attorney-General for the State of Queensland.[2] Boddice J, with whom White JA agreed, stated:

"The word 'exceptional' is an ordinary, familiar English adjective. It 'describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon'. It need not be 'unique, or unprecedented, or very rare', but it cannot be a circumstance that is 'regularly, or routinely, or normally encountered'.[3]

"Whether exceptional circumstances are shown to exist will depend on the facts and circumstances of a particular case. A breach that is trivial or accidental may well present little difficulty for a released prisoner to show 'exceptional circumstances'. However, exceptional circumstances require a conclusion the associated risks from any release pending determination of the contravention proceedings are not such as to justify continuing detention."

[9] The last proposition was derived from Attorney-General for the State of Queensland v Dugdale,[4] where I stated:

"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 contravention hearing as exceptional.

Exceptional circumstances will, of course, be shown in a case where a contravention is trivial. Exceptional circumstances have been shown in other cases in which the Court forms an assessment that the risks involved arising from the alleged contravention are not such as to justify continuing detention for a short period or perhaps in some cases for an extended period.

The protection of the community is the key consideration, and there is a material difference between an alleged contravention that involves conduct that is directly related to the type of conduct that justified the making of a supervision order and conduct which may only be very indirectly related to the risk of reoffending or which might have no particular bearing on the risk of committing a further sexual offence."

[10] It seems to me that the final sentence of paragraph 43 of the reasons of Boddice J in Harvey was not defining "exceptional circumstances". It was describing the kind of exceptional circumstances which would need to exist for a party to satisfy the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified. This is apparent from paragraph [45] of the decision in Harvey which reiterates that the exceptional circumstances which must be established involve a conclusion that "the associated risks arising from the alleged contravention and subsequent release are not such as to justify the continuing detention".

[11] It is unnecessary to attempt to catalogue the kind of cases in which exceptional circumstances may exist. They include circumstances in which a contravention is unlikely to be proven and pending the final decision adequate protection of the community can be ensured by release subject to a supervision order. They also include a trivial contravention where it is apparent that the contravention, if proved or admitted, will result in a further supervision order and, pending the final decision, adequate protection of the community can be ensured by a supervision order.

[12] The respondent's case that exceptional circumstances exist does not rest simply on the proposition that the criminal charges have been discontinued and dismissed. It also rests on the fact that the respondent was assessed as not requiring supervision under an order after 15 January 2015. The evidence and the orders of the Court were to the effect that adequate protection of the community could be ensured after 15 January 2015 without a supervision order, let alone a continuing detention order. Prior to the alleged events of 12 October 2014, nothing in the respondent's conduct had led the authorities to seek an extension of his supervision order. Save for the allegations which will not be tested in criminal proceedings, the respondent would not have been subject to the Act after 15 January 2015 because he was considered to no longer present an unacceptable risk.

[13] The making of allegations of a serious sexual assault transformed matters. However, they remain allegations which depend entirely upon acceptance of the evidence of the complainant. She has indicated to police that she does not wish to proceed with the charges. There is no indication that she will be willing to give evidence in the contravention proceeding.

[14] In an ordinary case, serious allegations which are supported by evidence from witnesses who are prepared to give evidence on oath affect the court's assessment of the prospects of a contravention being proven, the risks arising from the alleged contravention and whether there are unacceptable risks associated with release from custody pending determination of the contravention proceeding. In an ordinary case, the assumption is made that the person or persons making the allegations will give evidence. This case differs from such an ordinary case because presently there is no indication that the complainant will give evidence at the contravention proceeding, even if subpoenaed by the Attorney-General.

[15] In this case, the Attorney-General must prove the serious allegations of rape to the high degree of probability required by the law[5]. The Attorney's case depends entirely on the uncorroborated evidence of a complainant who did not wish to proceed with the allegations in the criminal proceedings. In circumstances where there is no indication that she wishes to proceed with those allegations in the contravention proceedings, the circumstances can be fairly described as "exceptional". That the contravention proceeding depends entirely upon the uncorroborated evidence of a witness who is unwilling to proceed with the allegations is a circumstance which is not regularly, routinely, or normally encountered.

[16] The respondent would not be in custody save for those allegations having been made in October 2014.

[17] Normally contravention hearings are determined at a time when the respondent is still subject to a supervision order. If the contravention is not proven, then the respondent remains subject to such an order. This is not such a case.

(a) it is exceptional that a contravention proceeding depends entirely on allegations made by a complainant who does not wish to proceed with the allegations;

(b) the period during which the respondent was previously assessed as requiring a supervision order has expired.

[19] The respondent is correct to submit that it would be exceptional for someone who has completed their period under a supervision order to remain in custody as a result of allegations that have been discontinued by police and with which the complainant does not wish to proceed. Exceptional circumstances exist.

Is the respondent's detention in custody pending the final decision not justified?

[20] The Attorney-General submits that it cannot be concluded that the associated risks from any release pending determination of the contravention proceeding are not such as to justify continuing detention where:

(a) the breach offence is rape: the same offence which led to a supervision order being made in 2009;

(b) the complainant's statement is detailed and, if accepted, would prove the breach;

(c) the complainant immediately made complaint to police after the incident, and this bolsters her credit;

(d) the respondent has not presented evidence to the court about the alleged contravention.

[21] As to (d), it is true that the respondent has not addressed these matters in an affidavit. He is not required to. Incidentally, for the purpose of this proceeding the complainant has not sworn an affidavit so as to confirm the truth of her witness statement and to expose herself to cross-examination so as to enable the respondent to test her evidence. It is not said on behalf of the Attorney-General that her version of events is supported by DNA or other evidence.

[22] The only evidence before me in support of the alleged contravention is the complainant's police witness statement dated 12 October 2014, which is untested by cross-examination. The statement was made by someone who, for reasons that are not explained in the evidence before me, does not wish to proceed with those allegations. Those reasons and other matters would likely be explored if the complainant appears at the contravention hearing and gives evidence at it. Sadly, the complainant suffers from more than one mental illness, and it remains to be seen whether cross-examination of her or other evidence concerning her mental state on the night in question will cast doubt upon the reliability of her evidence. It is possible that cross-examination will explore the possibility that any act of penetration was at least initially with her consent or that the defendant might have been reasonably mistaken about her consent or whether consent had been withdrawn.

[23] The complainant, if she gives evidence at the final hearing, may provide convincing evidence in support of the contravention, and explain that her unwillingness to proceed with the charges was not the result of her having any doubts about the reliability of her account or what might emerge under cross-examination. The complainant may, for example, give a convincing explanation that she simply did not wish to proceed with the criminal charges because of the effect of doing so upon her psychological or emotional state. It remains to be seen whether the complainant will cooperate in giving evidence at the contravention hearing and, if she does so, what her evidence will be. It is sufficient to observe that whatever her reasons may be for not wishing to proceed with the charges, the prospects of the evidence in her statement being accepted and discharging the demanding requirement for proof in accordance with Briginshaw v Briginshaw are reduced by the fact that she does not wish to proceed with the charges.

[24] The Attorney-General is correct to point to the relevance, in assessing risks associated with any release, to the fact that the contravention is not alleged to be a trivial one and directly relates to the type of conduct that justified the making of the original supervision order. Still, any risk assessment must be informed by the fact that the complainant is unwilling to stand by her statement and subject her allegations to forensic scrutiny.

[25] The standard of proof on the contravention hearing is not proof beyond reasonable doubt. It is demanding, but is not proof on the criminal standard. Another relevant difference between the discontinued criminal proceeding and the pending contravention proceeding is that s.92 of the Evidence Act 1977 (Qld) permits a witness statement to be admitted as evidence in certain circumstances in civil proceedings. One is if the maker of the statement is called as a witness in the proceeding. Another is if the maker of the statement is unfit by reason of mental condition to attend as a witness. The admissibility of the statement is subject to discretionary exclusion under s 98 of the Evidence Act.

[26] It is presently unknown whether the complainant will be prepared to give evidence, if subpoenaed. Presently, there is nothing to say that the complainant will be any more prepared to give evidence in the contravention proceeding than she was prepared to give evidence in the criminal proceeding.

[27] If her witness statement is admitted pursuant to s 92 of the Evidence Act because one of the conditions in s 92(2) is satisfied then her statement, untested by cross-examination, will provide some evidence in support of the contravention. The position here is different to the circumstances in which a complainant is unable to give evidence because the complainant is dead, but evidence is admitted pursuant to s 92 of the Evidence Act, including evidence which was the subject of cross-examination.[6] The evidence given in a witness statement by a person who has not been, and will not be, subject to cross-examination, is likely to be less cogent than if such evidence had been the subject of cross-examination of a witness who stood by her allegations.

[28] As the complainant in this matter is unwilling to proceed with the allegations, a question arises whether her witness statement, if admitted, would be sufficient to discharge the onus of proof in the absence of cross-examination. If, however, the complainant does give evidence, and is cross-examined, then it cannot be assumed that the evidence in her witness statement will be accepted if, for example, issues arise concerning the reliability of her account or if, for example, she concedes under cross-examination that the respondent may have been mistaken about consent.

[29] The prospects of proving the serious allegations that are made against the respondent in the contravention proceeding by cogent evidence are not good where, for reasons that have not been explained, the complainant does not wish to proceed with the allegations.

[30] Despite that, and the fact that the allegations remain to be tested by cross-examination, the making of them alters the assessment of risk. No psychiatric opinion is required to persuade me that if the contravention is proven the risk the respondent represents in the absence of an order under Part III of the Act is heightened.

[31] In summary, the prospects of proving the alleged contravention cannot be said to be good. They depend entirely on acceptance of the uncorroborated evidence of a complainant who does not wish to proceed with the charges. The issue is whether the increased risk from the fact of the allegations have been made can be adequately addressed by a supervision order so as to lead to the conclusion that the respondent's detention in custody pending the final decision under s 22 is not justified.

A possible complication and an issue of statutory interpretation

[32] Counsel for the respondent noted the terms of s 21(6) which provides that if the court orders the respondent's release then it "must order that the prisoner be released subject to the existing supervision order ... as amended under subsection (7)." Subsection 21(7) provides for the existing order to be amended to include all the requirements under s 16(1) and that the court may amend the existing order "to include any other requirements the court considers appropriate to ensure adequate protection of the community". Section 21(6) does not provide in its terms for the date upon which the existing supervision order expires to be extended.

[33] Upon the final determination of the contravention proceeding, and if the released prisoner satisfies the court that adequate protection of the community can, despite the contravention, be ensured by a supervision order, the court may amend the existing order in a way that the court considers appropriate to ensure adequate protection of the community or the prisoner's rehabilitation or care or treatment. This would include an amendment to the existing order to extend the date upon which it expires.

[34] The respondent raised the question of whether the Act allows that the extension of the existing supervision order on an application under s 21(4) in circumstances in which there is no express provision which operates to extend a supervision order past its stated expiry date for the purposes of determining an alleged contravention. I should add that the present issue is not directly concerned with the powers of the Court under s 22(7) to amend "the existing order" to extend its duration. However, that matter has a relevance to the nature of the order which may be made upon an application under s 21(4). Where s 22(7) refers to an amendment of "the existing order", that term refers to the order referred to in s 22(1). It refers to, amongst other things, the supervision order that existed at the date of contravention, even if the so-called "existing order" has expired by the date the contravention proceeding is finalised and the court makes an order amending the "existing order" under s 22(7).

[35] The present issue is whether I can order pursuant to s 21(4) that the respondent be released subject to the requirements of the existing supervision order pending the final decision of the Court under s 22 or further earlier order notwithstanding the fact that the order expires on 15 January 2015.

[36] When regard is had to the context of s 21(4) and (6), the release order which is made under s 21(4) is concerned to ensure that at least the requirements of the supervision order which is alleged to have been contravened, as amended by

s 21(7), continue. The fact that s 21 does not in terms refer to the court having power upon an application under s 21(4) to extend the expiry date of the existing supervision order is not really to the point. When an order is made pursuant to

s 21(4) there is no need to extend the date of the existing supervision order. A different regime applies. The requirements of the existing order, as amended by

s 21(7), govern the prisoner's release pursuant to s 21(4). It does not matter that by the time of the final contravention hearing the existing supervision order has expired. Until that hearing, or further earlier order, the prisoner is subject to its requirements by force of s 21(6). If, following the contravention hearing, the prisoner satisfies the Court of the matters stated in s 22(7) then the so-called "existing order" (even one which has expired) will be appropriately amended both in terms of its requirements and in terms of its duration.

[37] Having regard to its purpose and context, s 21(6) should be interpreted to mean that if the court orders the release of the detainee, it must order that he or she be released subject to the requirements of the existing supervision order, as amended under subsection 21(7), pending the final decision of the court under s 22 or further earlier order. The "existing supervision order" referred to in s 21(6) should be understood in the present context as referring to the supervision order which is alleged to have been contravened.

[38] To the extent that such an interpretation involves reading words into s 21(6) it is justified by the statutory context and the need to avoid apparently unintended consequences. It would be an odd thing if in a case where the supervision order was to expire prior to the final decision under s 22 (which may occur a substantial time after the date of the contravention and the date of the supervision order's expiry) a detainee's application under s 21(4) had to be refused because there was no scope to order his or her release until the final decision subject to the requirements of a supervision order. It is implicit in the terms of s 21(6), given its context, that the order for release is intended to operate pending the final decision in the contravention proceeding and that the released individual is to be subject to the requirements of the existing supervision order as amended under s 21(7) until the final decision or further earlier order. The fact that an existing supervision order may have expired prior to the final decision under s 22 does not determine the individual's status. If no order is made under s 21(4) then, despite the expiry of the supervision order, the individual continues in detention until the final decision of the Court under s 22. That final decision may result in the making of a continuing detention order.[7] If, however, the onus under s 22(7) is discharged then a supervision order will be made, and it does not matter that by this time the so-called "existing order" has expired.

[39] An interpretation of s 21 which enables a party to be released subject to the requirements of the supervision order which is alleged to have been contravened, as amended under s 21(7), and notwithstanding the expiry of the supervision order prior to the making of the order under s 21(4) or its expected expiry prior to the final contravention hearing, is to be preferred. Were it otherwise there would be unfortunate and apparently unintended consequences. It is possible to imagine a case in which a detainee demonstrates exceptional circumstances and the contravention hearing is not expected to occur until after the expiry of the existing supervision order. The detainee may have good prospects of resisting a finding that the existing supervision order was contravened, or good prospects of demonstrating that if it was then, almost inevitably, a further supervision order will be made under s 21(7). It would be odd if, because of the expiry or imminent expiry of the existing supervision order, such a detainee had to be held in custody until the final decision under s 22, whereas if the existing supervision order had some years to run, he or she could be released under s 21(4).

[40] An individual who is subject to a supervision order which has expired by the time the application is made under s 21(4) or whose supervision order will expire prior to the final decision should not be placed in a worse position than someone whose supervision order has years to run unless the words of the statute compel that conclusion. They do not.

[41] An interpretation which permits a person to be released under s 21(4), notwithstanding the expiry or imminent expiry of the existing supervision order, is to be preferred. Such an approach upholds the purposes of the Act and the general principle that where adequate protection of the community can be ensured, the making of a supervision order is to be preferred to the continuing detention of an individual who has served his or her sentence. It avoids the unjustified detention pending a final decision under s 22 of a person whose detention in custody is not justified because exceptional circumstances exist. Such a release order will only be justified where the requirements of the order for release are appropriate to ensure adequate protection of the community.

[42] If, however, I am wrong to interpret s 21(6) purposively and so as to avoid anomalous and apparently unintended consequences, then the same result may be reached a different way. Section 21(6) is concerned with the mandatory requirements of an order made under s 21(4). It does not constrain what other conditions the Court might include in a release order. For example, a release order may include a condition requiring the released person to co-operate in ensuring that the contravention proceeding comes on for an early hearing. Let it be assumed, contrary to the view I have earlier expressed, that the words "the existing supervision order" in s 21(6) are taken to refer to a supervision order which must exist at the time the release order is made. In a case where the supervision order has expired by the date the release order is made, the Court might, consistent with

s 21(6)'s apparent purpose, condition the order for release made under s 21(4) by ordering that the prisoner be released subject to the pre-existing requirements of the supervision order and such other requirements the Court considered appropriate to ensure adequate protection of the community.

[43] I conclude that the fact that the supervision order which the respondent is alleged to have contravened was to expire on 15 January 2015 does not prevent a release order under s 21(4) from requiring that the respondent be released subject to the requirements of that order, together with any of the requirements under s 16(1) of the Act that were not already included in those requirements, and any other requirements the Court considers appropriate to ensure adequate protection of the community. The point of statutory interpretation to which the respondent helpfully directed the Court's attention does not preclude the making of a release order which requires him to be subject to the requirements that are contained in the supervision order which he is alleged to have contravened.

Do the requirements of the existing supervision order as amended address risk and make the respondent's detention in custody pending the final decision not justified?

[44] The requirements of the existing supervision order are appropriately adapted to ensure adequate protection of the community. They permit severe restrictions to be imposed upon the respondent's liberty. The relevant authorities may require the respondent to reside in a special precinct. The material before me indicated that in the event a supervision order was made the respondent might be relocated from the Lotus Glen Correctional Centre to a vacancy at the Townsville precinct. When the matter was reviewed by me on 15 January 2015 I was told that arrangements would be made for the respondent to be relocated to that facility. The respondent's supervision at that location and his general supervision under an appropriately worded release order are adequate to ensure adequate protection of the community pending the final decision under s 22 or further earlier order. On 15 January 2015 I made directions by consent that are designed for the final hearing to occur on

17 April 2015. I conclude that the risks arising from the alleged contravention and the respondent's release subject to the order which has been formulated are not such as to justify his continuing detention.

[45] Exceptional circumstances exist. The additional risk posed by the untested allegations which the complainant does not wish to proceed with can be addressed by a release order which subjects the respondent to the requirements of the supervision order which he is alleged to have contravened and an additional requirement that he not have any direct or indirect contact with the complainant in the present contravention proceedings.

[46] If the complainant maintains the position that she does not wish to proceed with the allegations, then the prospects of a contravention being proven to the required standard cannot are not good. If those allegations had not been made in October 2014, then the respondent would not now be subject to the requirements of a supervision order and would not have been held in detention since 16 October 2014. Because of the exceptional circumstances which exist the respondent has satisfied me, on the balance of probabilities, that his detention in custody pending the final decision under s 22 is not justified.

[47] At the further mention of this matter on 15 January 2015, having considered the matter and ascertained where the respondent was expected to be accommodated pending the final hearing, I indicated my views. I indicated to the parties the findings I intended to make and that, due to my commitments in the Applications List, I was not then in a position to provide my reasons. Having previewed the orders I proposed to make and my essential reasons for making them, the parties agreed that I should make those orders on the morning of Friday, 16 January 2015. I did so, these are my reasons for making those orders.

[1] A-G for the State of Qld v Marama [2009] QSC 404.

[2] [2011] QCA 256 ("Harvey").

[3] At [42] citing Attorney-General (Qld) and Anor v Francis [2008] QCA 243 at [41]; see also Attorney-General v Francis [2008] QSC 69 at [7].

[4] [2009] QSC 358 (delivered ex tempore).

[5] Harvey at [10] per McMurdo P citing Briginshaw v Briginshaw [1938] HCA 34; (1940) 60 CLR 336 that the contravention would need to be proved on the basis of cogent evidence which established it to a high degree of probability.

[6] See, for example, Harvey v Attorney-General (Qld) [2014] QCA 146.