State challenges supervised release of convicted sex offender

On 28 March 2013, Crown Law for the Attorney-General mounted a challenge in Queensland’s highest court to overturn a decision that convicted sex offender Robert John Fardon was fit for supervised release from custody.

In November 2003, Fardon became the first person detained indefinitely under the Dangerous Prisoners (Sexual Offenders) Act 2003, which allows the Supreme Court of Queensland to make an order for the continued detention or supervised release of a particular class of prisoner to ensure adequate protection of the community.

When the court makes an order for a prisoner’s continued detention, the Act requires that the continuing detention order be regularly reviewed. As part of the review, the prisoner must be examined by two psychiatrists. It is the Attorney-General who bears the responsibility for ensuring the reviews are carried out in accordance with the requirements of the Act.

On the hearing of the review, the court may affirm the prisoner’s continuing detention only if it is satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm the decision.

If the court affirms the decision, it may order that the prisoner continue to be either subject to the continuing detention order or released from custody subject to a supervision order.

In deciding whether to make such an order, the paramount consideration for the court is the need to ensure adequate protection of the community. In doing this, the court must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order and whether the mandatory requirements of a supervision order can be reasonably and practicably managed by Queensland Corrective Services.

On the annual review of Fardon’s continuing detention order, Justice Mullins ordered on 13 February 2013 Fardon’s release the following day, subject to a supervision order.

Mullins J found Fardon could be adequately managed in the community order with requirements including that he notify authorities of any intimate relationship, not visit any place where children or people with intellectual disabilities resided, abstain from alcohol, obey a curfew and wear a GPS tracking device.

On 14 February 2013, Fardon’s release was blocked when Crown Law for the Attorney-General successfully sought a stay of the order made by Mullins J from Justice Muir of the Court of Appeal, pending an appeal. The appeal was heard by the Court of Appeal on 27 February 2013.

On 28 March 2013, the Court of Appeal allowed the Attorney-General’s appeal. However, the court ordered that the matter be returned to the Supreme Court to re-hear the matter before deciding if Fardon should be released under strict supervision or remain in prison on a continuing detention order.

In a majority 2–1 decision, Muir JA said the Act required a judge give detailed reasons when making an order for detention or supervised release.

Muir JA was unable to conclude on the evidence whether it was reasonably open for Mullins J to conclude that a supervision order would be “efficacious in constraining [Fardon’s] behaviour by preventing the opportunity for the commission of sexual offences”.

He said that the matter of whether adequate protection of the community could be reasonably and practically managed by a supervision order necessarily involved the weighing of the written and oral evidence of the two psychiatrists, and of the other evidence which suggested the existence of a relevant risk on the one hand, or its minimisation or removal on the other.

Muir JA said that was an exercise which could best be undertaken by a judge of the trial division who would have the benefit of seeing and hearing the witnesses.

Muir JA stated he was “assuming that on a further hearing there would be some further brief oral evidence or perhaps a supplementary report or reports and cross-examination”.

Crown Law is currently making enquiries with the Brisbane Supreme Court as to when this matter can be listed for further hearing.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 7 May 2013