Welford, Attorney-General v Francis [2004] QSC 128

[1] MACKENZIE J: This is an application by the Attorney-General for the following orders under the Dangerous Prisoners (Sexual Offenders) Act 2003:

1. That the respondent undergo examination by two psychiatrists who are to prepare independent reports in accordance with s 11 of the Act;

2. That the respondent be detained in custody until the court is able to determine the application for orders in paragraphs 3 and 4;

3. That pursuant to s 13(5)(a) of the Act the respondent be detained in custody for care control and treatment;

4. That in the alternative the respondent be released subject to conditions considered appropriate by the court.

[2] As required by s 5(2)(b) the application was accompanied by the affidavits intended to be relied on. There were 12 of them, the earliest of which was sworn on 4 March 2004 and the latest on 6 April 2004, the Tuesday before Easter, and also the day upon which the application was filed and served on the respondent at 4.35pm. The return date was fixed as 23 April 2004, the 11th working day after the effective date of service pursuant to UCPR 103. The respondent's period of imprisonment ends on 6 May 2004. The procedural requirements of s 5 were therefore complied with.

[3] At the outset there was a complaint described as one of denial of procedural fairness on behalf of the respondent. In its general form it was that although the application can be made up to six months before the end of the prisoner's period of imprisonment, this application was filed only about one month before the end of the sentence, with Easter intervening almost immediately after it was filed. I was told and have no reason to doubt, since the material filed on behalf of the applicant is contained in three exhibit boxes, that it totals about 2,500 pages. It was submitted that the difficulties were compounded by the fact that the respondent is an indigenous man with only grade nine education and is confined in prison.

[4] The tight timelines in the Act can create a practical problem which is part of the complaint about denial of procedural fairness. Section 6 provides that the respondent prisoner may file affidavits to be relied on in the preliminary hearing. Copies of such affidavits must be given to the Attorney-General at least three business days before the date set down for the preliminary hearing. Where the time between filing the application and the release date is short, the right to make any meaningful response at the preliminary hearing may prove to be illusory. If there is sufficient time to do so, an adjournment of the preliminary application may alleviate the problem to some extent. In the present case, despite there being two weeks between the return date and the date of release, no request for an adjournment was made. Counsel for the respondent took the stance that even if an adjournment were granted, no useful purpose would be served within the time available.

[5] The process of gathering information to make an application appears to have been commenced promptly since a request was made on 1 December 2003 of Dr Moyle, a forensic psychiatrist, to provide a psychiatric risk assessment report in relation to the respondent. An interview lasting 41/2 hours was conducted by Dr Moyle with the respondent on 8 December 2003 and he commenced drafting his report on 15 December 2003. It was delivered to Crown Law on or about 11 February 2004. The delay of almost two months in filing the application after receiving the report of Dr Moyle appears to have been due to assembly in affidavit form of a very large volume of material from a variety of sources relating to the respondent. At least some of it appears to have been collected to give to Dr Moyle as background as early as December 2003. While acknowledging that collection of all the material would be a laborious exercise, a delay until there is only about one month left of the sentence to be served before the application is made seems unsatisfactory. Where this occurs it is an almost inevitable consequence that a prisoner in whose case the threshold for an interim detention order is reached will spend what will probably be a considerable time in custody beyond what would otherwise be the end of his or her sentence pending a determination whether a continuing detention order or a supervision order should be made. It is a matter of discretion whether an interim detention order is made pursuant to s 8(2)(b) but, since the jurisdiction is essentially given for the purpose of protection of the public, it is difficult to avoid the consequence that such an order will be made if there is sufficiently cogent evidence that the respondent is a serious danger to the community if released. The legislation's apparent intent is to subjugate the interests of the prisoner to the interest of the public irrespective of the delay in bringing the application, subject to the issue of procedural fairness.

[6] It is a fairly common experience that there may be delay in obtaining psychiatric reports for court purposes. That is probably inevitable for a variety of reasons. The problem caused by late applications is that a respondent is likely to spend some months beyond the date of completion of his sentence before a final determination is made. A fairer balance might be achieved if there was a requirement to bring the application no earlier than six months before the prisoner's release date and no later than three months before that date. That would require an amendment to the law, but would at least allow more time for preparation of the independent reports of the two psychiatrists named by the court pursuant to s 8(2)(a) and any reports or evidence upon which a prisoner wishes to rely and to conduct a final hearing close to the prisoner's release date if not before. Apart from the possibility that some administrative effort would be wasted if an application was ultimately not made, it would promote a more timely disposition of matters if identification of material relevant to the application was carried out concurrently with any psychiatric evaluation. One would hope that the risk of wasted effort could be minimised by selecting cases where an application was to be considered with sufficient discrimination to limit the possibility that the statutory criteria would not be met upon closer examination.

[7] In view of the claim of denial of procedural fairness or natural justice and the associated submission that the application should at least be permanently stayed, it is necessary to examine the sequence of events in some detail. Before doing so, it is noted that counsel for the Attorney-General submitted that the respondent was aware, at least from the time of Dr Moyle's interview with him in December, that the application was a possibility. I do not accept that as a significant influence on this question since the respondent plainly did not know what case was to be mounted against him and in the circumstances could not be expected to prepare material in opposition in advance.

[8] According to Mr Smith, Centre Services Manager of the Sir David Longland Correctional Centre, he served the prisoner with the application and supporting affidavits at about 4.35pm on 6 April 2004. At the time he told the respondent that he was entitled to legal representation. The prisoner signed an acknowledgement of receipt of the documents and that he had been informed about the right to obtain legal advice and offered the opportunity to contact a legal representative. By way of further explanation Mr Smith deposed that he took about ten minutes to explain to Mr Francis the content of the application and the documents to ensure his understanding of the documents which understanding the respondent acknowledged. According to Mr Smith at the time of service the respondent indicated that he was aware of the process and had already received advice regarding the matter. He also indicated that it was the respondent's belief that the deadline for applying had been passed and he would be in the same category as a prisoner named Watego, of whose case mention will be made later. According to Mr Smith he told the respondent to contact his solicitors to get current advice on a number of occasions. On or about 7 April 2004 the respondent was further advised by a supervisor to seek legal advice. On Wednesday 14 April 2004, at the request of the Crown Law solicitor responsible for the conduct of the proceedings Mr Smith made enquiries of staff and was informed that the respondent was, as they spoke, being attended to by two representatives from the Aboriginal Legal Service.

[9] It is deposed by Mr Sigston, Assistant General Manager of the correctional centre, that there is a system available to enable prisoners to make telephone contact with persons outside prison. The system contains a list of approved telephone contact details accessible for the use of prisoners. It is recommended to prisoners that a legal representative be one of the approved numbers. If a legal representative is not nominated as an approved number the prisoner may nevertheless request, through staff of the centre, contact with a legal advisor. It is also deposed that an indigenous liaison officer is on duty as a component of counselling staff. Those officers are not authorised to give legal advice but are authorised to provide assistance to prisoners to contact legal representatives including communication by fax and other means.

[10] There is also an affidavit from Mr Conway, a senior social worker employed by the Aboriginal Legal Service, whose duties include providing visiting, support and advocacy services to indigenous prisoners. He deposes that he first had contact with the respondent on the morning of 14 April 2004 when conducting a regular visit to the centre. He deposes that he understands that the respondent had requested an interview at least one week prior to his scheduled visit but he was not made aware of the request until speaking to the coordinator of Murri Aid Support Group in Inala on 13 April 2004. (There is no further explanation of when and in what circumstances the first request was made except to the extent that Mr Conway deposes that he understood that the respondent did not have the Aboriginal Legal Service telephone number on his list of authorised numbers so was initially able to communicate with the service indirectly through indigenous support workers from Murri Aid who periodically visited the prison).

[11] Mr Conway also deposes that when he saw the respondent on 14 April 2004 he seemed to fully understand that the purpose of the application was that he could be detained beyond the full term of his sentence and that he was seeking legal assistance. The respondent also explained that he had received notice of the application in writing on 6 April 2004 although he also stated that some time later he received a box-full of copies of documents that he was told were associated with the matter. That appears to be at odds with Mr Smith's affidavit as to what was served.

[12] Mr Conway deposes that on 14 April 2004 he received an application for the purpose of seeking financial support for the respondent's legal assistance from Legal Aid Queensland. On returning to his office Mr Conway wrote and presented the request for assistance to the principal legal officer of the Aboriginal Legal Service and its CEO. The principal legal officer directed that the application for funding be submitted immediately to Legal Aid Queensland and undertook to find a lawyer to represent the respondent as soon as financial support was approved. On 19 May 2004 an email confirming that finance had been approved from Legal Aid Queensland, applicable from 15 April 2004, was received. On the afternoon of 19 April 2004 the respondent handed relevant documents to the prison authorities which Mr Conway collected at 4pm. The following day a brief was prepared and presented to the applicant's present counsel at 1.30pm.

[13] Mr Conway also deposed that during the course of his interview with the respondent on 14 April 2004 the respondent referred to his recent convictions in New South Wales and Queensland, the courses he had done in prison and that he was deemed to be in a state of denial and therefore unsuitable to continue in the Sexual Offenders Treatment Program. He said he was continued in counselling or assessment for some time under the senior psychologist in charge of that program. He said that he did not believe he was in denial because he did not recall all the details outlined by the original complaint. He stated that he believed that that was due to the effects of drugs he was using at the time the offences were committed.

[14] It is against that background that the argument concerning denial of procedural fairness must be viewed. In support of the submission counsel for the respondent relied on Attorney-General v Watego [2003] QSC 367. Counsel for the applicant also drew my attention to Attorney-General v Nash [2003] QSC 377. In each of those cases the application was dismissed on the ground that the sequence of events led to a denial of natural justice to the respective respondents.

[15] In Watego the release date was Friday 31 October 2003. The application was filed on Friday 24 October 2003 and served out of hours that day. Legal Aid was approved at midday on Tuesday 28 October 2003. The return date was Thursday 30 October 2003. The respondent therefore had about one clear day to respond. It was also submitted that the situation was complicated by the limited intellectual ability of the respondent and the constraints imposed by his incarceration. Muir J dismissed the application saying the following:

"It is necessarily implicit in sections 5 and 6, and the rules of natural justice require, that a respondent have a reasonable time within which to consider and, if necessary, respond to the applicant's material. It is an essential principle inherent in the concept of natural justice that there be procedural fairness. A basic requirement of procedural fairness in court proceedings is that a party against whom an order is sought should have an appropriate opportunity to present to the court the reasons advanced by him against the making of such an order. Such an opportunity will not be afforded where a party has inadequate time in which to prepare his case."

[16] In Nash the release date was 6 November 2003. The application was filed on 30 October 2003 and served on 31 October 2003 with a return date of 4 November 2003, the third business day following filing. Legal Aid was approved on 3 November 2003. There were only the briefest opportunities to confer with the respondent prior to the hearing. It was noted that it was impossible to comply with the timeframe in the Act if the respondent wished to file material in opposition to the application. It was submitted by the respondent that he had been denied natural justice by reason of the inadequate notice. This was accepted by P D McMurdo J, adopting the approach of Muir J in Watego.

[17] In my view the present case is distinguishable from Watego and Nash. In this case the application was made and served one month before the expiry of the sentence. It is not disputed that the respondent was made aware of his right to get legal advice and that it was desirable to do so by the authorities when the documents were served. There is some evidence that, at least a week before 14 April 2004 a request for an interview had been made, by inference to representatives of the indigenous community visiting or employed in the prison. For reasons that are not explained the information was not passed on to Mr Conway until 13 April 2004. There is no evidence to suggest that any delay in conveying the request for legal assistance was the fault of the correctional services officers. There is also some evidence, not disputed, that the respondent believed at the time of service of the application that the application had been made too late, as in the case of Watego, from which it may be inferred that he believed that the application would be dismissed.

[18] In my judgment the case is not one where the respondent has been denied procedural fairness by reason of any default on the part of those on the applicant's side of the record. That is a fundamental difference between Watego and Nash on the one hand and this case on the other. There was time, had the flow of information before Mr Conway became involved been assisted more expeditiously by those helping the respondent, for counsel to be briefed earlier and thereby allow time for consideration of the material and for tactical decisions such as whether to ask for an adjournment to be made. There were up to two weeks after the return date which could have been utilised had an adjournment been sought.

[19] On a preliminary hearing the court is to decide whether it is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order (s 8(1)). If the court is satisfied that the prisoner may be released from custody before the application is finally decided, an interim detention order stating a period for which the prisoner is to be detained in custody may be made (s 8(2)(b)).

[20] The respondent was convicted of a number of offences committed over a period from 1 August 1996 to 28 October 1996 against a woman aged 20 with whom he was then in a relationship. The offences are described in a schedule which his counsel at the sentencing hearing said represented the basis upon which the respondent pleaded guilty. Most were offences of assault occasioning bodily harm; some were indecent assaults involving digital penetration, often forceful. Two were indecent assaults with circumstances of aggravation in that they involved penetration with objects. One involved insertion of the handle of a knife into the victim's vagina. Another involved inserting a broomstick into her anus for a short time. The schedule and the transcript of the oral submissions made at sentencing reveal a pattern of bizarre and sometimes violent conduct on the part of the respondent.

[21] However for the purposes of the present application two things must be clearly understood. The first is that the only offences that found the jurisdiction to make orders under the Act are those in count 9 and count 11. The reason for this is that those are the only sentences he is currently serving. All other concurrent sentences had been completed before the Act came into force.

[22] The second is that the Act only applies to a prisoner serving a term of imprisonment for a serious sexual offence. He is not currently serving a term of imprisonment for any other sexual offences than those in counts 9 and 11. Offences which are not of a sexual nature are not subject to the Act at all no matter how violent they may be.

[23] There are two other concepts that need to be understood. The first is that in the case of an adult, before the Act can apply, the offence must be a "serious sexual offence", that is to say one of a sexual nature involving violence (including intimidation and threats). The second is that for orders under s 8(2), including an interim detention order, to be made, the court must be satisfied that there are reasonable grounds for believing that the prisoner is a serious danger to the community in the absence of a continuing detention order or supervision order. In practical terms this means that the court must be satisfied that there are reasonable grounds for believing, on the available evidence, that the prisoner is a serious danger to the community according to criteria that include the risk that the prisoner will commit another serious sexual offence if released, and the need to protect members of the community from that risk (s 11(4)(g) and (h)).

[24] It was submitted on behalf of the respondent that the offences did not fit the description of a "serious sexual offence". Count 9 was committed against the background of an earlier incident, reflected in count 7, in which, on the same day, he placed his hand inside her vagina saying he was going to kill the baby. The court was told that the complainant was never pregnant to the prisoner or anyone at that stage. Count 9 is summarised in the schedule as one where the accused said that he was going to kill the baby. He got a large knife with a handle about four inches long and put the handle into the complainant's vagina saying "I'm going to kill it". He began to jab the handle inside her vagina moving it in and out. When the victim said she was bleeding the respondent stopped and told her to get in the shower until she stopped bleeding because she was having a miscarriage.

[25] Count 11 occurred on a day the date of which is not precisely identified during the period of the relationship. The respondent pushed the victim against the wall while trying to make her bend over. She started crying and the respondent said "you enjoy it". He then stuck a broom handle into her anus for a short time.

[26] Both of the offences were charged as indecent assaults with a circumstance of aggravation. The sentencing Judge observed that whilst the reasons for the respondent inflicting the physical and sexual abuse on the complainant were not readily apparent they occurred against a background of drug abuse and the behaviour was "quite bizarre and deviant". Although the evidence was not before the sentencing Judge, Dr Moyle's report provides more insight into the reason for the offences.

[27] Dr Moyle concluded on the basis of his examination that the respondent suffers from no mental illness but has a paraphilia called sexual sadism. There was also polydrug abuse and an anti-social personality disorder. The diagnosis of paraphilia in the form of sexual sadism implies, according to DSM IV 302.84, that over a period of six months or more the individual derives sexual excitement from psychological or physical suffering (including humiliation) of the victim.

[28] Although the period alleged in the indictment is less than six months, the evidence before me also discloses that after the respondent left the relationship with the complainant he formed another relationship with a woman in New South Wales where he was eventually charged and sentenced for offences very similar to some of the indecent assault offences committed in Queensland. The District Court Judge who sentenced the respondent in New South Wales said that the respondent had become obsessed by a notion, suggested to be without any foundation, that the woman had been having sexual relations with other people and was practising autoeroticism. A clinical psychologist's report suggested that the respondent had a susceptibility to confusion and paranoid and delusionary thinking with brief psychotic episodes at times of stress and intoxication.

[29] I am satisfied that the two offences in counts 9 and 11 should be treated as reaching the threshold for serious sexual offences. However, without the insight provided by the report of Dr Moyle into the reason why the offences were committed, it would have been a case closer to the threshold. While what the respondent did was grossly deviant and repulsive and may be taken to have inflicted substantial subjective psychological consequences on the victim, the question of what degree of violence must attend the commission of the offence to make it a "serious sexual offence" would have been more acute. It may subsequently become a live issue if Dr Moyle's opinion is not shared by other expert psychiatrists.

[30] The test to be met at the preliminary application stage is whether there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a Division 3 order. Dr Moyle's report addresses the issue of serious violent sexual offending in the second last section of his report. He concludes in the final section of the report that the respondent:

"... at present continues to pose a high risk of serious future sexual violence in the next seven to ten years on the basis of the information currently. He has it within his capabilities, as a man with an average intelligence and no recent mental illness that is not itself the product of his misbehaviour and substance abuse, to lower the factors known currently to be associated with high risk of future violence. He could seek help from the clinical staff of the Corrections including those who provide psychological and psychiatric care to inmates with mental disorders for a balanced biopsychosocial approach to lessening the risks he poses to women. Once he has addressed the above risk factors and is seen to have reliably changed over time, as permitted in this legislation, he could then receive monitored community care in a graded release program. At present the risk is high if he returns to the community that he will act in a serious violent sexual manner to a woman he meets."

[31] The group of paragraphs commencing at the bottom of page 36 of the report and continuing on page 37 gives an insight into the basis for Dr Moyle's conclusion. On the basis of that conclusion, I am satisfied that there are reasonable grounds for believing that the respondent is a serious danger to the community in the absence of a Division 3 order if one considers the "public" for the purpose of applying the test as those members of it with whom the respondent may form an intimate relationship.

[32] I am satisfied that the case is one where an order should be made in accordance with s 8(1), setting a date for the hearing of an application for a Division 3 order, and in accordance with s 8(2) for examination by two psychiatrists who are to prepare independent reports and that the respondent be detained in custody. I will hear the parties as to who the psychiatrists should be, what date should be set for hearing the application and what period of detention should be provided for. Final orders will then be pronounced.

[33] The formal order is that the parties make submissions forthwith as to:

(a) the names of two psychiatrists who are to prepare independent reports pursuant to s 8(2)(a) of the Act;

(b) the date which should be set for the hearing of an application for a Division 3 order; and

(c) the period for which the prisoner may be detained pursuant to an order under s 8(2)(b) of the Act.