Attorney-General for the State of Queensland v Currie [2021] QSC 197

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Currie [2021] QSC 197 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v JOEL GEORGE CURRIE (Respondent) FILE NO/S: BS 10864 of 2015 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 10 August 2021 DELIVERED AT: Brisbane HEARING DATE: 26, 27, 28, 29 and 30 July, 2 and 3 August 2021 JUDGE: Bowskill J ORDERS: 1. The decision that the respondent is a serious danger to the community in the absence of a division 3 order is affirmed. 2. The respondent continue to be subject to the continuing detention order made by Byrne SJA on 11 March 2016 for control care and treatment. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where an order was made in March 2016 that the respondent be detained in custody for an indefinite term for control care or treatment – where this is the fourth annual review of that continuing detention order – whether the court should affirm the decision that the respondent is a serious danger to the community – whether the applicant has discharged the onus of establishing that only a continuing detention order will provide adequate protection to the community Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13, 27, 30 Attorney-General for the State of Queensland v Currie [2016] QSC 48 -- 1 of 48 -- 2 Attorney-General for the State of Queensland v Currie [2017] QSC 318 Attorney-General for the State of Queensland v Currie [2018] QSC 318 Attorney-General for the State of Queensland v Currie [2020] QSC 128 Attorney-General (Qld) v Francis [2007] 1 Qd R 396 Attorney-General v Lawrence [2010] 1 Qd R 505 COUNSEL: J Tate for the applicant J Fenton for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Ashkan Tai Lawyers for the respondent Contents Introduction ................................................................................................................................ 2 Relevant principles..................................................................................................................... 3 Respondent’s background and criminal history ......................................................................... 5 Diagnoses of the respondent ...................................................................................................... 6 Reasons for the continuing detention order being made and subsequently confirmed.............. 7 Events since the last review ..................................................................................................... 11 Psychological treatment ........................................................................................................... 12 Recent reports prepared by and evidence from the psychiatrists ............................................. 13 Is the respondent a serious danger to the community in the absence of a division 3 order? ... 17 Has the applicant discharged the burden of proving that a supervision order will not afford adequate protection to the community? ................................................................................... 17 What is the way forward? ........................................................................................................ 18 Schedule – findings of fact in relation to alleged custodial events .......................................... 21 Introduction [1] On 11 March 2016 an order was made under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the respondent be detained in custody for an indefinite term for control, care or treatment: Attorney-General for the State of Queensland v Currie [2016] QSC 48 (Byrne SJA). [2] As required by s 27 of the Act, that continuing detention order has been reviewed on a number of occasions since then, each time being confirmed.1 This is the fourth review of the continuing detention order. 1 The first review was on 21 December 2017, before Mullins J: Attorney-General for the State of Queensland v Currie [2017] QSC 318. The second review was on 17 December 2018, before Brown J: Attorney-General for the State of Queensland v Currie [2018] QSC 318. The third review was on -- 2 of 48 -- 3 Relevant principles [3] The first question on the review is whether, having regard to the required matters, the court should affirm the decision that the respondent is a serious danger to the community in the absence of a division 3 order: s 30(1) and (6). The required matters are, relevantly, the matters mentioned in s 13(4) of the Act. [4] A person is a “serious danger to the community” if there is an unacceptable risk that they will commit a serious sexual offence (that is, an offence of a sexual nature involving violence, or against a child) if they are released from custody [at all] or released from custody without a supervision order being made (ss 13(1) and 13(2)). [5] Under s 30(2), the court may affirm the decision that a person is a serious danger to the community 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. [6] To affirm the decision, the court must be satisfied the respondent is now a serious danger to the community and make that determination on the evidence as it stands now.2 The nature of the risk may alter, through the effluxion of time and/or with the administration of treatment. These changes need to be taken into account, on a review, when considering whether the respondent is, presently, a serious danger to the community in the absence of an order under the Act. [7] The respondent did not dispute a finding to this effect, although it remains a matter for the court to determine on the evidence. [8] The second question is how the discretion conferred on the court by s 30(3) should be exercised. [9] Under s 30(3), the court has a discretion to order that the respondent (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. [10] In relation to that question, s 30(4) and (5) provide: “(4) In deciding whether to make an order under subsection (3)(a) or (b) – (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether – (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (5) If the court does not make the order under subsection (3)(a) the court must rescind the continuing detention order.” 15 May 2020, before Davis J: Attorney-General for the State of Queensland v Currie [2020] QSC 128. 2 Attorney-General (Qld) v Allen [2019] QSC 56 at [14]. -- 3 of 48 -- 4 [11] As the Court of Appeal said in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39], in relation to the equivalent discretion under s 13(6) of the Act: “The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” [12] And as Chesterman JA said in Attorney-General v Lawrence [2010] 1 Qd R 505 at 512 [33], after referring to this passage: “It follows from this undoubted proposition that in cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community…”3 [13] In order to discharge this burden, the evidence put before the court must satisfy the court that a supervision order will not afford adequate protection to the public.4 [14] It is important that meaning be given to the word “adequate” in the context of the object of the Act (s 3(a)) and the paramount consideration (s 30(4)(a)) – namely, the need to ensure adequate protection of the community. Adequate protection is a relative concept.5 It is not the purpose of the legislation to guarantee absolutely the safety and protection of the community.6 That would not be possible. As observed by the Court of Appeal in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39], the Act “does not contemplate that arrangements to prevent [a particular risk] must be ‘watertight’; otherwise [supervision] orders under s 13(5)(b) would never be made”.7 [15] It is also well established that “the assessment of [the] measure that will ‘ensure adequate protection of the community’ involves an equation with two factors, namely, ‘the likelihood of conduct which will endanger the community and the result of such conduct if it ensues’”.8 Whether or not a risk is unacceptable must be gauged taking into account the nature of the risk and the consequences of the risk materialising.9 The question is 3 See also Attorney-General v Lawrence (2014) 224 A Crim R 184 at [17] and [30]. 4 Attorney-General v Lawrence [2010] 1 Qd R 505 at [33]. 5 Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30]. 6 Attorney-General (Qld) v Jackway [2017] QSC 67 at [22]. 7 Attorney-General v Lawrence (2014) 224 A Crim R 184 at [9] and [30]. 8 Attorney-General (Qld) v Lawrence [2011] QCA 347 at [90]. 9 Attorney-General (Qld) v Beattie [2007] QCA 96 at [19]. -- 4 of 48 -- 5 “whether the supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences”.10 [16] The applicant submits that, on the basis of the evidence before the court on this review, it is appropriate to make an order under s 30(3)(a), that the respondent continue to be subject to the continuing detention order. The respondent submits that an order ought to be made under s 30(3)(b), permitting him to be released from custody subject to a supervision order. Respondent’s background and criminal history [17] The respondent is an Aboriginal man, born in January 1984. He is currently 37 years of age. His criminal history began when he was 11 years old, with multiple entries for property, violence and anti-social behaviour offences by the time he was 14. His history of sexual offending began just two weeks after his 14th birthday, in February 1998, with offences of rape and grievous bodily harm, for which he was sentenced to six years’ detention. He went on to commit offences of indecent assault, in the context of a break and enter, in October 2004 (in New South Wales); rape and sexual assault, again in the context of a break and enter, in March 2006; and sexual assault (whilst in custody, directed at a cultural liaison officer), in September 2009. The details are set out in Attorney-General for the State of Queensland v Currie [2016] QSC 48 at [2]-[8].11 [18] The respondent has spent most of his life, since the age of 14, either in juvenile detention or adult prison. [19] An explanation for the respondent’s early descent into criminal offending, referred to in a number of the reports that have been written about him, is, as summarised by Dr Aboud: “[The respondent] suffered a highly prejudicial childhood, and has reported being sexually victimised as a boy, and it would seem by more than one perpetrator. His childhood was also characterized by poor education, early onset substance abuse, anger management issues and juvenile delinquency. He has a long history of abusing alcohol and cannabis.”12 [20] The last of the respondent’s sentences of imprisonment came to an end on 13 March 2016 – this was the effect of an eight year term of imprisonment imposed for the rape committed in March 2006, as well as a five year term of imprisonment imposed for the sexual offending from October 2004 (which was not dealt with until 2015, with the sentence backdated to commence from 2011), as well as cumulative terms subsequently imposed for the sexual assault in September 2009 and other, non-sexual, offending whilst in custody.13 10 Attorney-General (Qld) v Fardon [2011] QCA 111 at [29]. 11 See also Dr Aboud’s report, dated 3 February 2021 (annexed to his affidavit which is CFI 84) at pp 5-6; and Dr Harden’s report, dated 4 February 2021 (annexed to his affidavit which is CFI 113) at pp 9-11. All references to Dr Aboud’s and Dr Harden’s reports are to these reports, unless otherwise indicated. 12 Dr Aboud’s report at p 2; see also Dr Harden’s report at pp 16-17 and 30. 13 See the affidavit of Ms O’Sullivan (CFI 47), which exhibits the respondent’s Queensland (adult and juvenile) and New South Wales criminal histories. -- 5 of 48 -- 6 [21] The respondent has remained in custody since then, under the continuing detention order first made on 11 March 2016. Diagnoses of the respondent [22] In Dr Aboud’s opinion, the respondent meets the criteria for antisocial personality disorder (with prominent borderline, paranoid and narcissistic traits); psychopathic disorder; and polysubstance (mainly cannabis and alcohol) dependence, currently in remission in a protected environment. Dr Aboud says the respondent does not appear to suffer from a major mental illness, such as a psychotic disorder or a serious mood disorder. [23] Although the victims of his sexual offences have included female minors, Dr Aboud says that: “… it seems, on balance, unlikely that he harbours a specific paedophile drive, and instead his sexual offending appears to present one aspect of prolific general offending. The fact that he would be prepared to sexually offend against a minor, is likely to be on account of his psychopathy and callous disregard for others. It would be just as likely, in my view, that he would sexually offend against females who are older and adult.” (at p 19) [24] Dr Harden likewise considers the respondent would meet the diagnostic criteria for antisocial personality disorder with significant psychopathic personality features, as well as polysubstance abuse in remission because of incarceration. Dr Harden also says that: “Although there have been child victims there is no other material to suggest a sexual paraphilia. The sexual offences appeared to have largely been opportunistic while intoxicated and committing other criminal offences. They are likely associated with sexual entitlement and sexual preoccupation.” (at p 30) [25] These diagnoses of the respondent have been consistent, across the various psychiatrists who have assessed him over the years he has been subject of proceedings under the Act.14 [26] As discussed below, the respondent’s behaviour in custody has been an ongoing challenge. As summarised by Dr Aboud: “His behaviour in prison has been chronically poor, with many prison violations, including incidents of sexually inappropriate behaviour toward female staff, threats of violence toward others, and other challenging behaviours, including self-harm, aggression and threats. His general behaviour appears to have been associated with emotional dysregulation, and he has frequently claimed that discrimination and racism has been enacted on him by an uncaring and prejudicial criminal justice and health system.”15 14 See Dr Aboud’s report at p 6. 15 At p 18; see also Dr Harden’s report at pp 28 and 30. -- 6 of 48 -- 7 [27] There are obvious reasons why this behaviour has been a significant issue – as Dr Aboud put it, the issue is “his ability, desire [and] capacity to abide by rules should he be released, such that he could abide by [the] conditions of a supervision order”.16 Reasons for the continuing detention order being made and subsequently confirmed [28] At the time the court made the original order for continuing detention,17 in March 2016, there was evidence before the court from three psychiatrists, Dr Beech, Dr Harden and Dr Sundin, each of whom diagnosed the respondent with an antisocial personality disorder with psychopathy and as being at a high risk of sexual reoffending. All doctors recommended that he undertake the High Intensity Sexual Offenders Treatment Program (HISOP) before release from custody, with two of them saying he was likely to need individual treatment before doing so. [29] The evidence given by the respondent at the time of that first hearing was said by Byrne SJA to “confirm the assessments of the psychiatrists that he minimises his violent sexual offending, lacks empathy with victims, has little or no remorse, is fixated on his own difficulties and has unrealistic post-release plans” (at [25]). [30] At the time of that hearing, the respondent had not yet participated in an appropriate sexual offender program, which was said to be for reasons related to his own behaviour and attitudes. His behavioural record in prison and lengthy record of breaches and incidents in custody, including failing to comply with directions, violent and threatening behaviours towards staff, and sexually inappropriate behaviour, was referred to (at [29]- [34]). [31] The court found the respondent was a serious danger to the community in the absence of a division 3 order, on the basis that he posed a high risk of committing a sexually violent offence against females, young and older, if released into the community at that stage (at [36]). The court was also satisfied that a supervision order could not adequately address the high risk that the respondent would, if released, commit a serious sexual offence. It was held that, “to protect females from serious sexual offending at his hands, the respondent needs to complete, satisfactorily” the HISOP (at [37]-[38]). [32] At the time of the first review of the continuing detention order, in December 2017,18 it was noted that the respondent had been housed in four prisons since the making of the continuing detention order (Wolston, Brisbane, Capricornia and Woodford) and that there were 22 incidents on his violation history between April 2016 and November 2017. He had not completed a sexual offender program; in part it seems because he had refused and eventually on the basis that his poor institutional conduct was such that he was considered to pose too great a risk to the safety of both staff and other group participants. He had, however, started individual psychological therapy, first with Ms Wood and then with Dr Madsen. [33] There was evidence from Dr Sundin and Dr Harden before the court. Their previous diagnoses were confirmed, as were their risk assessments and their opinions that the respondent was not then suitable for release into the community, even with the benefit 16 Transcript of proceedings, p 1-28 line 26-28. 17 Attorney-General for the State of Queensland v Currie [2016] QSC 48 (Byrne SJA). 18 Attorney-General for the State of Queensland v Currie [2017] QSC 318 (Mullins J). -- 7 of 48 -- 8 of a supervision order. It was once again recommended that he participate in an intensive sexual offending program, with both Dr Sundin and Dr Harden considering the Sexual Offending Program for Indigenous Males may be more suitable than the HISOP. [34] There was also evidence from the respondent’s then treating psychologist, Dr Madsen. To try to address the fact that the respondent was not then going to be considered for a group program, Dr Madsen proposed trying to address the respondent’s treatment needs through an individual, one-on-one program. That had not started yet, because the respondent had been placed in the detention unit. [35] Whilst both psychiatrists, Dr Sundin and Dr Harden, were of the view that such individual treatment is not the same as the HISOP, they both considered that individual treatment was worthwhile and, as Dr Harden said, if the respondent could successfully complete such an individual treatment program, and demonstrate appropriate institutional behaviour over a sustained period (12 months), this would “give me more confidence in his ability to comply with a supervision order in the community” (at [40]). [36] In determining the outcome of that second review hearing, Mullins J said, at [45]-[46]: “The psychiatric opinions from Dr Sundin and Dr Harden leave no doubt that Mr Currie is at a high risk of sexual offending, if released into the community unsupervised. Although there may be room for debate as to the level of fault attributable to Mr Currie for each of the breaches or incidents on his prison file since the continuing detention order was made, the essence of the psychiatrists’ opinions reflects the attitudes displayed by Mr Currie in the interviews with the psychiatrists and the application of the risk assessment instruments to his history. I am therefore satisfied by the psychiatric evidence to the high degree of probability required under s 30(2) of the Act that the decision that Mr Currie is a serious danger to the community in the absence of a division 3 order should be affirmed. It was apparent from how Mr Currie conducted himself in the court that his focus is on himself and not on developing insight into his past offending and what strategies he should undertake to avoid reoffending in the future. His complaint that he was never given parole and he should not be under the Act misses the point that he is the subject of a continuing detention order under the Act made on 11 March 2016 and that is a starting point for this review hearing. Rather than dwelling on the past and his failure to be given parole, his dissatisfaction at being moved between correctional centres, and his opposition to the application of the Act, Mr Currie needs to accept the inevitability that any release from custody will require him to be under a supervision order and work towards completing the programs and focusing on the skills that will make a supervision order effective in reducing the risk of sexual reoffending by him in the community. The support expressed for Mr Currie by his sister is more likely to be successful in assisting Mr Currie comply with a supervision order, after Mr Currie has completed the further treatment that is recommended for him in the prison.”19 19 Underlining added. -- 8 of 48 -- 9 [37] At the second review, in December 2018,20 there was evidence again from Dr Sundin and Dr Harden, whose opinions as to risk remained unchanged. However, in evidence given at this review hearing, Dr Sundin said that the respondent’s “personality structure and the fragility of his personality” is such that he cannot undertake the HISOP, “as it would be too confronting”. She considered the evidence then available from Dr Madsen showed there was “positive engagement by Mr Currie with Dr Madsen and that progress is being made” and that one-on-one treatment with Dr Madsen remained the best option. Dr Sundin also thought the respondent was showing improvement in his behaviour in custody, linked to his work with Dr Madsen. She also considered that the respondent’s engagement with Dr Madsen was “his most positive step forward”, and that he should continue that engagement for the next 12 months, at which time there should be another assessment as to whether he could be released on a supervision order. [38] Dr Harden, likewise, considered that the one-on-one treatment with Dr Madsen had resulted in the respondent making some progress and that he had also made some progress in terms of his institutional and treatment compliance. He also recommended that the individual treatment continue, for a further 12 months, in the “structured environment of custody, to consolidate his current gains”. [39] Positively, it was noted that there had been no custodial incidents from May 2018 to the time of the hearing in December 2018. [40] In determining the outcome of this second review, Brown J said, among other things: “There has been significant and positive development since the last review, with Mr Currie’s engagement with Dr Madsen and the work that has been done with one-on-one treatment. Based upon Dr Madsen’s report and the psychiatrists’ evidence, the work Dr Madsen and Mr Currie have been doing together has set Mr Currie on a pathway to being released under a supervision order, but I am not satisfied that he can presently be released on such an order even with that treatment continuing. … While the one-on-one program with Dr Madsen appears to be having a positive effect and he has tailored an individual program to address Mr Currie’s sexual reoffending, the gains he has made are not sufficient to satisfy me that the adequate protection of the community can be ensured by Mr Currie being released on a supervision order. … I accept the opinion particularly of Dr Harden that the passage of six months and lack of adverse incidents is a particularly positive sign for Mr Currie. Dr Sundin also acknowledged that that was a good step forward. Both Dr Sundin and Dr Hardin consider that the reduction in adverse incidents is linked to the therapeutic treatment Mr Currie has received from Dr Madsen. As Dr Madsen observes, that suggests that Mr Currie does have the capacity to self-regulate his reactions and behaviours when he is appropriately motivated and engaged. … 20 Attorney-General for the State of Queensland v Currie [2018] QSC 318 (Brown J). -- 9 of 48 -- 10 … I am satisfied that while Mr Currie is now on the pathway to being able to be released under a supervision order with the work that has occurred, particularly over the last six months with Mr Madsen, and his not being involved in adverse incidents … on the evidence before me, further work needs to be done for Mr Currie to develop a proper insight into his offending and develop protective mechanisms to reduce the risk of his reoffending in the future, in order for that risk to be reduced to an acceptable level. …” [41] Regrettably, very shortly after this decision, things deteriorated. In January 2019, the respondent sent a letter to the general manager of the prison, fairly described by Dr Sundin as a “seven-page diatribe against Dr Madsen”,21 which was abusive, intimidating and threatening of him.22 The respondent thought that Dr Madsen had somehow betrayed him by the evidence he gave at the review hearing – I infer, because the respondent expected he would be released following this hearing, and was not. Unfortunately, the respondent’s behaviour in custody deteriorated again, with further breaches and incidents recorded, including of indecent acts directed at staff, threats against staff, and offensive behaviour. [42] By the time of the third review, in May 2020,23 the respondent had started treatment with another psychologist, Mr Nick Smith, which, as observed by Davis J at [19] “led again to improvement in the respondent’s prison behaviour”. The last incident of concern, before the review hearing in May 2020, was an incident on 8 January 2020 involving a threat to staff. [43] On this review, the court heard evidence from Dr Sundin, Dr Harden and Dr Aboud. Dr Sundin’s assessment on this occasion was thwarted to some extent because the respondent became aggressive and abusive towards her after about 45 minutes and the interview was terminated. The respondent did, however, cooperate with the interviews by Dr Aboud and Dr Harden. Once again, the opinions as to diagnosis and risk were the same. The recommendation, of Dr Harden and Dr Aboud, was that the respondent continue with individual treatment with Mr Smith, in custody. Mr Smith had provided a report to the court in which he said the respondent had “shown definite improvement over the course of our sessions” (at [38]). [44] Justice Davis said, at [39], that “all three psychiatrists opined that because of the respondent’s personality type and history, they would not be confident that a supervision order would significantly reduce risk until they saw a period of 12 months of incident free stability in prison”. As Davis J said, at [45]: “I accept the psychiatrists’ evidence that critical to the assessment of the respondent’s risk in the community, is his institutional behaviour. I accept their evidence that Mr Smith’s treatment is appropriate and that the most recent institutional behaviour indicates some improvement but that any improvement cannot be regarded as consolidated and permanent unless the improved institutional behaviour continues for a period of 12 21 Dr Sundin’s report dated 14 October 2019 (annexed to her affidavit which is CFI 57) at p 4. 22 See exhibit SC-1 to Mr Collins’ affidavit (CFI 64), at pp 49-55 of the exhibit. 23 Attorney-General for the State of Queensland v Currie [2020] QSC 128 (Davis J). -- 10 of 48 -- 11 months. I found, then, that the adequate protection of the community could not be ensured by a supervision order and so I ordered that the respondent continue to be detained.” Events since the last review [45] As can be seen, the respondent’s behaviour in custody has been a significant issue on each occasion this proceeding has come before the court. At the hearing of the most recent review before me, it took on greater proportions as the respondent put the applicant to proof in respect of each of the custodial incidents which were alleged to have occurred since the last review. Evidence about those incidents was heard over five days and, as agreed by the parties, I delivered my findings in relation to those matters in a decision published to the parties on day six of the hearing, before proceeding to hear evidence from the psychiatrists, Dr Aboud and Dr Harden. Those findings are set out in the schedule to these reasons, which forms part of this judgment. [46] From May 2020 to late July 2020, the respondent was detained at the Wolston CC; and from 30 July 2020 to the date of the hearing, he was detained at the Maryborough CC. The incidents began on 20 May 2020, five days after the continuing detention order was confirmed. [47] The incidents include threatening and aggressive behaviour (direct and indirect) aimed at correctional officers, nurses and a doctor; failing or refusing to comply with directions, leading to an escalation of conduct; sexually inappropriate conduct (indecent exposure); and sexist and insulting remarks directed at female officers. Looking at the evidence overall, it is apparent that the respondent has a tendency to act impulsively, lashing out without thinking in response to certain things – sometimes in an aggressive or threatening manner; he can be volatile and angry; once he is in an agitated or “elevated” state he refuses to comply with directions given to him by officers, which escalates the situation even more; he is quick to blame others, or institutional discrimination (in particular on the basis of race), for circumstances that arise, rather than taking responsibility for his own actions; but woven throughout the incidents is a thread which reveals that the respondent is a damaged person, who is very distressed and frustrated by his circumstances. [48] For almost the whole time the respondent has been at Maryborough CC, and at least since October 2020, he has been subject of a safety order, and fully segregated from other prisoners – in some instances, on the basis of a decision made by the correctional facility; but mostly, at his request.24 [49] As I said at [142] of the findings set out in the schedule, as I read the IOMS notes, for the period from 5 February 2021 to 9 July 2021, the respondent has effectively remained in his cell, initially in unit S5 and then moved to unit S4 on 21 May 2021. He is recorded to decline the two hours exercise time he is offered on every occasion. He does not leave his cell (other than, as I read the notes, on a couple of occasions, once to make a phone call and once for a video link with his lawyer). He does not interact with the other prisoners. All interactions with him by officers are required to be recorded with body- worn camera footage (and, according to the notes, if a camera is not available, the officers avoid interacting with him). His conduct and behaviour is regularly said to have 24 See affidavit of Mr Owens, sworn 22 July 2021 at [15]. -- 11 of 48 -- 12 been acceptable, although there are some incidents recorded of non-compliance (in particular, covering up the window of his cell, and being in the shower when the headcount is being conducted, presenting naked when the officer asks him to show his face). There continue to be some references to the respondent accusing staff and other prisoners of terrorising him, and occasionally acting in an agitated, aggressive or abusive manner. In his evidence before the court on this review hearing the respondent said he has volunteered to be locked in a cell all day because of “conflict issues”. [50] It is apparent that the respondent interpreted the outcome of the last review, before Davis J, as a requirement (he referred to it as an order) that he remain incident-free for the next seven months, following which he would be released. In his evidence before me, he expressed the view that others (officers and prisoners) had learned of this and set out to make him fail – reflecting the paranoid thinking that is part of his personality disorder diagnosis. He has gone to the point of isolating himself – by requesting to be placed on safety orders – to avoid having any breaches recorded against him. Psychological treatment [51] As already mentioned, although the respondent was said to have been making progress when engaging in treatment with Dr Madsen, he brought that to an end in January 2019 because of a perception that Dr Madsen had betrayed him in the evidence he gave to the court. That is a shame, as it can be seen from Brown J’s decision that in fact the evidence given by Dr Madsen was supportive of and favourable to the respondent. [52] In any event, the respondent then commenced treatment with Mr Nick Smith, and the view formed by Davis J, in May 2020, was that this was leading to some improvement in the respondent’s behaviour. That treatment continued up until November 2020, with the primary focus being on assisting the respondent to cope with and respond appropriately to situational stressors relating to his experiences in custody. However, at his appointment on 2 November 2020, the respondent apparently presented as despondent and ambivalent about continuing the treatment appointments with Mr Smith. Regrettably, since then there have only been two appointments this year, on 4 June and 12 July 2021. That seems to have been in part because, initially, the respondent refused to attend appointments (in November 2020) but then because of logistical or booking difficulties, as a result of COVID restrictions and the respondent being accommodated at Maryborough CC this year.25 Mr Smith says, in his recent update letter: “While Mr Currie continues to approach our appointments with apparent motivation, he remains ‘immersed’ in situational stressors – real or perceived – that impede his capacity to engage in any treatment process beyond validating his distress and encouraging adaptive coping strategies where possible. As such, I would consider that his current circumstances are counter-therapeutic and make it impossible to address outstanding criminogenic needs. Mr Currie has also demonstrated good insight into his own vulnerability to provocation in the prison environment, which furthers his distress as he feels that he is being held to unrealistic expectations for institutional behaviour, and that his efforts are being sabotaged and not being recognised. 25 Letter from Mr Smith, exhibit AM-1 to Ms McLean’s affidavit sworn 26 July 2021. -- 12 of 48 -- 13 If the Court were to determine that Mr Currie is to remain on a Continuing Detention Order, then I would strongly recommend that he be transferred to another prison and re-engage with the Prison Mental Health Service, as well as continuing psychological treatment once he has stabilised.” [53] The evidence from Ms Monson, the manager of the High Risk Offender Management Unit, confirms that QCS will continue to facilitate the respondent’s treatment with Mr Smith, or another suitably qualified psychologist. [54] In evidence before me, the respondent was positive about his engagement with Mr Smith, saying that he likes dealing with him and that he thinks they have a good therapeutic relationship. That is a very good thing. As discussed further below, it is to be hoped that the respondent, with assistance and support from QCS, can re-establish this, and start seeing Mr Smith again on a regular basis. [55] It is clear from the reasons of Brown J (on the second review) and Davis J (on the third review) that when the respondent has engaged in individual treatment with a psychologist (first, Dr Madsen and then Mr Smith) this has resulted in real improvement. This will be an important part of the work the respondent needs to do, with the support of QCS, over the next 12 months. As I will come to discuss shortly, it is the strong recommendation of both Dr Aboud and Dr Harden that the respondent re-engage in treatment of this kind. Recent reports prepared by and evidence from the psychiatrists [56] The respondent was assessed by Dr Aboud and Dr Harden, for the purposes of this most recent review. [57] The respondent cooperated with the examination by Dr Aboud, which took place on 20 November 2020. Dr Aboud had also prepared an earlier report, dated 27 February 2020, in relation to the respondent. His evaluation of the respondent, by reference to the various actuarial risk assessment instruments, was unchanged (see at pp 19-21). [58] In terms of the nature of the risk posed, Dr Aboud said: “Should he reoffend sexually, one would speculate that it would take the form of opportunistic sexual violence, and possibly in the course of a robbery or a break and enter. It is hard to know if his previous offending, when he broke into a house and then sexually assaulted a young female victim in her bedroom, was wholly spontaneous, or whether the break & enter was secondary to and a means to meet, his need to sexual[ly] offend. The victim is likely to be a stranger, and a female of any age, and including a young child. Alcohol and/or illicit substance (such as cannabis) abuse may be implicated, but it is likely that he does not need to be intoxicated and disinhibited to harbor the drive to sexually offend. Nevertheless, substance use would increase the risk of such behaviour. Labile emotional states, especially anger, may be channelled into offending that represents a maladaptive coping behaviour. Offending could be impulsive, and possibly without any real planning, but could also be as a result of sexual preoccupation and the creation of a plan for -- 13 of 48 -- 14 potential victim access. He would be at higher risk if he was feeling bored, angry, despondent, stressed, or highly sexually preoccupied.” (at p 21) [59] In terms of the respondent’s overall risk level and Dr Aboud’s recommendations, Dr Aboud says: “[The respondent] is afflicted with a significant loading of vulnerability factors associated with future offending. According to the various actuarial instruments used, his sexual offending risk is high. It is therefore of concern that his dynamic risk factors remain salient and to some extent rather intractable to change, largely due to his psychopathic personality structure and other personality vulnerabilities. Thus, the individual psychological therapy, while certainly important and necessary, has only been able to provide limited assistance in ameliorating risk. In my opinion, his current overall unmodified risk is high as regards both sexual and violent reoffending. Given his relative lack of progress since his last annual review in the Supreme Court, I do not consider that he has demonstrated that his risk (for sexual reoffending) could be adequately or safely managed in the community, even in the context of a supervision order. His problematic and challenging behaviour in prison, some of which has involved anger, aggression, verbal threats, written threats, emotional volatility, and perhaps most worryingly, sexually untoward behaviour toward female staff or visitors, does not in my view suggest that he has attained a level of maturity, self-control and sound judgment that would allow for safe management in a community setting. I am not convinced that he would abide by, or be able to abide by, the conditions of a supervision order at this time. Instead, I believe that reasonable protection of the community would be afforded by his continued detention in prison, such that he can build a meaningful therapeutic alliance with his new treating psychologist, Mr Smith, and that he again give consideration to the potential benefits of taking antidepressant or mood stabilizing or antiandrogen medication. Further, it is my view that the true test of his readiness for safe release to the community is that he is first able to manage his emotions, to the extent that he is able to appropriately control his behaviour in the custodial environment. It is my consideration that successful demonstration of such behaviour control would be evidenced by a reduction in his prison record of ‘violations/incidents/breaches’, such that he has not, for a period of a year, engaged in sexually violent behaviour; engaged in sexually inappropriate behaviour (such as indecent exposure); engaged in violent behaviour towards others, as the aggressor; issued threats of physical violence or of sexual violence against others, be it verbally or in writing; [and not] return a positive urine test for an illicit substance. Until he is able to demonstrate this, I believe that he would very likely contravene the conditions of a supervision order, present as unmanageable, and quickly escalate to untenable risk of sexually reoffending, given that his risk of sexual -- 14 of 48 -- 15 offending is underpinned by an opportunistic, impulsive, predatory, and antisocial disposition.”26 (at pp 21-22) [60] Dr Aboud confirmed that his opinion, as set out above, remained unchanged as a result of the findings of the court in relation to the custodial incidents.27 [61] The respondent did not cooperate with the examination by Dr Harden on 10 December 2020, terminating the video interview after 35 minutes, having become agitated and angry, particularly when asked about the custodial incidents in the preceding months. [62] Dr Harden has, however, interviewed the respondent on five previous occasions since 2015 and said that, other than not being able to discuss the recent custodial incidents with the respondent, he did not consider that the premature termination of the most recent interview affected his ability to carry out a risk assessment. He prepared a report dated 4 February 2021. [63] Like Dr Aboud, Dr Harden said that the respondent’s scores on the various risk assessment instruments had not altered significantly since his last report. [64] Dr Harden expressed the following opinion as to the risk posed by the respondent: “His ongoing unmodified risk of sexual re-offence in the community is in my opinion still in the High range. If he were released from custody on a supervision order, his risk of sexual offending would still be moderate – high as in my opinion a supervision order would still provide some small diminution of his risk despite his obvious compliance issues. He should continue in an individual treatment program appropriate for individuals with severe personality disorder. His greatest risk factors for reoffending are in my opinion, his general criminal behaviour, lack of concern for others, substance misuse, attitudes that support sexual assault including attitudes to women, general failure to comply with previous community supervision or similar and restlessness and impulsivity associated with his personality structure. If he were to reoffend sexually he is likely to commit a sexual offence associated with interpersonal violence and threat, this is most likely to occur when intoxicated and possibly during the commission of other criminal offences. This is most likely to occur against an adult woman. It could be a stranger or someone known to him.” (at p 31) [65] Dr Harden also confirmed that his opinion was unchanged, as a result of the court’s findings in relation to the custodial incidents. [66] Earlier in his report, Dr Harden observed that (at p 21): 26 Underlining added. 27 Transcript of proceedings, p 7-10 line 9. -- 15 of 48 -- 16 “He appeared to have very limited insight into his own functioning with regard to his prior sexual offences. He seemed to use a range of cognitive distortions and defences including partial denial, minimisation, rationalisation and others. He also had limited insight into the effect of his behaviour on others particularly his aggressive, threatening and out of control behaviour. He always had a rationalisation to explain this and an external locus of control to defray his responsibility for his actions.” [67] Dr Aboud agreed with that and said in fact that paragraph sums up the “core difficulty” that the respondent presents with, saying: “… he behaves poorly, doesn’t take responsibility, often blames others, or blames his circumstances, as opposed to showing a capacity to look inwards and accept that there might be a need for him to change. He seems to be insistent that others should change around him, or the environment should accommodate him. …. [it] is a statement of a core psychological vulnerability that he has that then influences his behaviour because it demonstrates a lack of resolve to take responsibility, and therefore implement internal change. And I think that the internal change that he needs to undergo is the type of work that does involve a psychologist and is quite sophisticated. It’s also something that can shift over time as Mr Currie becomes older and more mature and more considered. So I don’t think this is a case of an impossible situation of a man who will never change, but I do think it’s a situation where he needs to be assisted as much as possible to accelerate change in the right direction …”28 [68] In terms of the respondent’s attitude to a supervision order, Dr Aboud recorded that (p 17): “I asked him if he would be prepared to abide by the conditions of a supervision order should he be released, and he said he would. He said that he would also engage with a case manager, see a psychologist, and reside at any accommodation deemed suitable. He then raised his voice and said, ‘I’ll fight for my rights!’ I will never back down! I will never change! God made me like this. I will never change!”. [69] Dr Aboud expressed the view that he thought the second part of this was a reflection of the frustration the respondent has communicated over the years about having to be part of the DPSOA process, on the basis that his offences were committed a long time ago, he has been detained in prison too long, the process is unfair and he feels hard done by, by the criminal justice system. [70] When interviewed by Dr Harden over the years since 2015 the respondent has regularly expressed various views about the supervision order process, consistent with the frustration referred to by Dr Aboud. They did not discuss this in December 2020, because the interview was prematurely terminated. But in January 2020 the respondent said to Dr Harden that he thought he would cope with monitoring and supervision, and 28 Transcript of proceedings, p 1-21 line 28 to p 1-22 line 5. -- 16 of 48 -- 17 believed he would cope better than in jail, “that he could be calm in the community”. He repeated this sentiment in what he said to the court, at the hearing before me. Is the respondent a serious danger to the community in the absence of a division 3 order? [71] In considering the first question posed by s 30(1), I have had regard to the required matters mentioned in s 13(4). The evidence before the court unquestionably supports the conclusion that it is appropriate to again affirm the decision that the respondent is a serious danger to the community, in the absence of either a continuing detention order or a supervision order. [72] On the evidence presently before the court, I am satisfied that the respondent is now a serious danger to the community, in the absence of such an order. There is still, I accept, a high risk that the respondent will commit another serious sexual offence if released into the community unconditionally. Having regard to the nature of the risk should the respondent reoffend, as described by Dr Aboud and Dr Harden, and the high likelihood of that risk eventuating, there is patently a need to protect members of the community from that risk. [73] The next question is, how the discretion under s 30(3) of the Act should be exercised. Has the applicant discharged the burden of proving that a supervision order will not afford adequate protection to the community? [74] As to this, the evidence overwhelmingly supports the conclusion that the respondent should continue to be subject to the continuing detention order. On the basis of the evidence before the court, I am not satisfied that adequate protection of the community can be reasonably and practicably managed by a supervision order nor that the requirements of such an order can be reasonably and practicably managed by corrective services officers.29 I am satisfied, to the high degree required under the Act, that at this point in time releasing the respondent into the community on a supervision order will not afford adequate protection of the community. [75] The respondent strongly believes that he would do better outside prison. However, because the paramount consideration for the court is the need to ensure adequate protection of the community (s 30(4)(a)), the court cannot take a chance on the respondent adapting his behaviour if released. He has to show that he has made a real improvement in terms of his ability to control his behaviour and his emotions in custody; and a real commitment to working towards that, in particular, by engaging with the recommended one-on-one treatment with a psychologist, before the court could comfortably reach the view that the risk he poses to the community can be reasonably and practicably managed by his release on a supervision order. At present, the evidence, which I accept, is that if released he is very likely to contravene the conditions of a supervision order, present as unmanageable, and quickly escalate to untenable risk of sexually reoffending. That is what the respondent has to work on turning around. And it is neither appropriate, nor consistent with the express terms of the legislation, to take a chance, placing the community at risk, by releasing the respondent before he has demonstrated that. 29 Section 30(4) of the Act. -- 17 of 48 -- 18 What is the way forward? [76] The order to be confirmed is an order that the respondent continue to be subject to the continuing detention order (s 30(4)(a)), which is an order that he be “detained in custody for an indefinite term for control, care or treatment” (s 13(5)). In the present case, all three apply – control, care and treatment. [77] In terms of the appropriate treatment, Dr Aboud said there are two dimensions to this: biological (that is, medication) and psychological. [78] As to the first, biological, in his report, Dr Aboud said that the respondent “would probably benefit from the prescription of antiandrogen medication, to reduce his overall high libido, or an SSRI antidepressant medication (in high dose) to reduce his impulsivity, or else a mood stabilizer medication to improve his affect regulation” (at p 19). In his oral evidence, Dr Aboud also suggested that a low-dose neuroleptic medication might be useful, to deal with the respondent’s personality vulnerabilities (in particular, the hypersensitivity and paranoid traits). As Dr Aboud explained, provided the respondent was agreeable, it would be a case of trialling one or more of these things, to see if they might help or make a difference. He emphasised that the respondent does not have a mental illness for which such treatment would be “typically licensed”, but that such medication is often offered to people with complex psychological and emotional difficulties on the basis that it might be helpful. The respondent was not enthusiastic about trialling any medication. In his evidence, he said he would prefer to see how he goes without it first. [79] In relation to psychological treatment, both Dr Aboud and Dr Harden strongly recommend that individual therapy, such as the respondent was receiving from Dr Madsen and later Mr Smith, is useful and should continue. The focus of this would be on his emotional and behavioural self-management. The relevant therapist is someone with expertise in working with people with severe personality disorder in a forensic setting. Dr Aboud said this would be a psychologist; Dr Harden said it could be a psychologist or a psychiatrist. [80] But as Dr Aboud emphasised, the respondent is going to have to trust this therapist and build a therapeutic relationship with them, in order for it to be beneficial. That is a challenge for the respondent, who said that he does not trust anybody; but hopefully he can work on this. [81] A third element mentioned by Dr Aboud was what he called “social approaches”, which would involve QCS looking at the circumstances of the respondent’s incarceration, and thinking about the type of placement that would be more useful to him, especially the type of people who are in the unit with him, suggesting older, more stable prisoners would be preferable to younger, more boisterous, volatile or provocative people. It also involves decisions and choices that the respondent has to make, in terms of structuring his day, trying to establish a routine and filling his day productively, as well as making the choice to behave differently in certain situations.30 [82] The respondent’s present plan, as he has described it in court, is to remain in effective isolation to avoid coming into conflict with others. In that regard, Dr Harden said it was 30 Transcript of proceedings, p 1-14 line 44, p 1-21 line 36 and p 7-22 lines 10-19 (Dr Aboud). -- 18 of 48 -- 19 significant that there had been no record of incidents since February 2021. But Dr Aboud was concerned that this puts the respondent in an even more artificial environment (than custody already is), which is further removed from community life. As Dr Aboud said, the respondent’s key vulnerabilities and risks relate to his interactions with other people – how he interacts, how he is able to manage stress and contain his emotions and his behaviour, and not engage in untoward behaviour (such as threats, sexualised behaviours and aggressive behaviours). So whilst the respondent remains, or keeps himself, isolated and segregated from others, it is much harder for him to demonstrate improvement, or for the psychiatrists to properly assess his behaviour. [83] Whilst Dr Harden agreed with the point made by Dr Aboud in this regard, he said he would still prefer to see the respondent incident free than not incident-free. [84] Importantly, what the psychiatrists are looking for – and what the court will ultimately be looking for, at future review hearings, in order to be persuaded that a supervision order could be made – is evidence that the respondent has been able to demonstrate improved behavioural and emotional control, such that it could reasonably be inferred that, in a community setting, he would be able to obey reasonable directions of a corrective services officer, work within the confines of a supervision order and not breach the conditions of such an order.31 [85] In relation to incidents in custody, Dr Aboud emphasised the importance of, firstly, there being a thorough investigation of any incidents said to involve the respondent32 and, secondly, interpreting the incidents to distinguish those which may reasonably be interpreted as beyond the respondent’s control, or in respect of which he is not necessarily at fault, or which involve a medical problem; from those incidents which are of concern – namely, incidents such as behaving in a sexually inappropriate manner, or in an aggressive or threatening manner, whether by verbal or written threats, or behaving in a particularly volatile way that shows an inability to control his behaviour and his emotions.33 [86] As Dr Harden said, what he is looking for is enough evidence to be able to say that it is likely that a supervision order will drop the respondent’s risk more significantly, down to the average or average to moderate range, such that he may be considered suitable for release on that basis – and for that “you just need a long enough period of relatively settled, not even perfect, but relatively settled behaviour”34 that does not involve the sorts of problematic incidents identified by Dr Aboud. [87] That goal may not be reached if the respondent simply isolates himself. But even if the respondent does not feel he can remove himself from segregation, engaging in psychological treatment is important – and, as Dr Aboud said, what the respondent should recognise is that focusing on this type of work is going to be useful and in his self-interest. 31 Transcript of proceedings, p 7-11 (Dr Aboud) and p 7-28 to 7-29 (Dr Harden). 32 Dr Aboud’s report, at p 22. 33 See also the extract from Dr Aboud’s report, set out at paragraph [59] above, where he describes the violations/incidents/breaches that are to be avoided – engaging in sexually violent behaviour; engaging in sexually inappropriate behaviour (such as indecent exposure); engaging in violent behaviour towards others, as the aggressor [not the victim]; issuing threats of physical violence or of sexual violence against others, be it verbally or in writing; returning a positive urine test for an illicit substance. 34 Transcript of proceedings, p 7-28 line 35 to p 7-29 line 9. -- 19 of 48 -- 20 [88] Whilst the primary purpose of the Act is community protection, it is also a purpose of the DPSOA regime to facilitate the rehabilitation of prisoners who are regarded as not having reached an appropriate level of rehabilitation, at the end of their term of relevant imprisonment, such that they continue to pose a risk to the community. That necessarily means that while a prisoner is subject to a continuing detention order, they should be afforded every reasonable and available means of care and treatment to assist them to become rehabilitated, because that is the main point of the order. [89] The respondent has a significant role to play in that regard – he has to show that he is willing, as Dr Aboud put it, to take a chance on someone, put his trust in a treating psychologist (or psychiatrist) and demonstrate not only that he is “going through the motions”, but that he is internalising the benefits of that treatment – that is, learning from it and demonstrating that learning by adapting his behaviour. There is also of course a responsibility on QCS, who have the respondent in their custody for “control, care and treatment”, to make concentrated and comprehensive efforts to facilitate the provision of such care and treatment to the respondent – including in terms of the decision as to where he is placed, as well as by ensuring the respondent has regular access to appointments for the psychological therapy that is required. [90] If I can summarise the way forward for the respondent, on the present evidence it seems to me to involve four things: choice, effort, improvement and stability. For a future review the respondent should be looking to show evidence that he: (a) has started to make better choices about how he behaves, as well as to engage in psychological treatment to assist him to self-manage his behaviour and emotions; (b) is putting in the effort, to engage in that psychological treatment, to contain his behaviour and emotions and to try to interact more cooperatively with others around him; (c) has improved his behavioural and emotional control; and (d) has demonstrated that he has actually made changes reflecting that he has learned from those things by a period of stability – as Dr Harden put it, “a long enough period of relatively settled, not even perfect, but relatively settled behaviour”, not involving problematic incidents (such as threats, sexualised behaviours, violent, threatening or aggressive behaviours). [91] With evidence of that kind, the court would be in a better position determine the respondent’s progress in these things and, with the benefit of expert psychiatric opinion, to assess whether in fact release on a supervision order would be effective to adequately manage the risk posed by the respondent, on the basis that the respondent would be able to abide by, and would abide by, the conditions of such a supervision order. [92] For those reasons, the orders of the court are: 1. the decision that the respondent is a serious danger to the community in the absence of a division 3 order is affirmed; and 2. the respondent continue to be subject to the continuing detention order made by Byrne SJA on 11 March 2016 for control care and treatment. -- 20 of 48 -- 21 Schedule – findings of fact in relation to alleged custodial events ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v JOEL GEORGE CURRIE (BS 10864 of 2015) FINDINGS OF FACT IN RELATION TO ALLEGED CUSTODIAL EVENTS BOWSKILL J: 2 AUGUST 2021 [1] The most recent review of the continuing detention order took place before Davis J on 15 May 2020. On that day, his Honour made orders, first, affirming the decision that the respondent is a serious danger to the community in the absence of a supervision order and, second, that the respondent continue to be subject to the continuing detention order. His Honour published reasons for making those orders on 29 May 2020.35 [2] At [45] of those reasons, Davis J said: “I accept the psychiatrists’ evidence that critical to the assessment of the respondent’s risk in the community, is his institutional behaviour. I accept their evidence that Mr Smith’s [the psychologist] treatment is appropriate and that the most recent institutional behaviour indicates some improvement but that any improvement cannot be regarded as consolidated and permanent unless the improved institutional behaviour continues for a period of 12 months. I found, then, that the adequate protection of the community could not be ensured by a supervision order and so I ordered that the respondent continue to be detained.” [3] In relation to this period of 12 months, at [39] of the reasons Davis J said that: “In their oral evidence before me, all three psychiatrists opined that because of the respondent’s personality type and history, they would not be confident that a supervision order would significantly reduce risk until they saw a period of 12 months of incident free stability in prison. When asked why 12 months was the critical period, none could point to any specific study or science but all swore that it was accepted in psychiatry that 12 months was a recognised period over which changes in behaviour should be assessed. Their evidence was, in effect, that unless the change of behaviour was experienced over a 12 month period, the change could not be considered to have been properly consolidated.” [4] There was evidence on the review before Davis J of various incidents concerning the respondent in custody.36 His Honour referred, in the reasons, only to the “last two prison incidents”. One was an incident on 8 January 2020, in which the respondent had made a call via the cell intercom system and said that if a particular officer “was on Thursday and started to ‘smart mouth him again, he stated that he was not going to stand for it.’”. The other was an incident on 7 April 2020, when the respondent approached staff and told them he had found a “shiv” in his cell air vent and that it was now under his mattress. The item was recovered. 35 Attorney-General for the State of Queensland v Currie [2020] QSC 128. 36 See footnote 9 on p 8 of the reasons. -- 21 of 48 -- 22 [5] As to these matters, Davis J said at [40]-[42]: “The incident of 8 January 2020 was a serious incident which was threatening in nature. The only reported incident since then, was the one on 7 April 2020 where the respondent alerted corrective services staff to a prohibited item found in his cell that was then seized. All three psychiatrists thought that the last significant incident was the one on 8 January 2020. All were prepared to accept that for the purposes of assessing the effects of Mr Smith’s [the psychologist] treatment and the respondent’s stability, the incident on 7 April 2020 should not be considered. Therefore, the evidence of all three psychiatrists was that the period over which the respondent’s behaviour should be assessed is the period 8 January 2020 to 8 January 2021. Unless the respondent remains incident free in prison until early 2021, their evidence was that there could be no confidence that Mr Smith’s treatment had effected any permanent change in the respondent.” [6] Against that background, and in the context of making some observations about the appropriate timing of the application for the next annual review of the continuing detention order, in order to avoid undue delay for the respondent Davis J also said, at [47]: “On the present state of the evidence, if the respondent can show that his change of behaviour through treatment with Mr Smith has consolidated by him being free of relevant incidents in prison, he may be ready for release in early 2021.” [7] It is in that context that evidence of the respondent’s behaviour in custody since May 2020 has formed a significant part of the evidence before the Court on this further review of the continuing detention order. The applicant was put to proof in respect of the incidents she sought to rely on,37 and evidence was heard over five days last week, from 26 to 30 July, from various correctional officers and Queensland Health staff, and from the respondent, about those alleged incidents. I have also received written submissions from counsel for the respondent.38 Counsel for the applicant did not wish to make submissions about these matters, leaving it for the court to determine the findings to be made on the basis of the evidence. [8] The applicant’s evidence was in affidavit form, with some additional oral evidence in chief. As to the former, that was accepted as appropriate having regard to r 390((b) of the Uniform Civil Procedure Rules 1999. As to the latter, that was undertaken essentially as a matter of fairness for the respondent, to ensure that he was aware, as each witness was called and made available for cross-examination, of the particular timeframe and 37 See the Revised Schedule of Incident Reports (MFI “A”). 38 The written submissions on behalf of the respondent set out what is said to be the respondent’s version in italics. I do not consider the italicised parts of the submissions accurately reflect the respondent’s evidence given at the hearing before me. I have proceeded on the basis of the transcript of the respondent’s evidence and have considered the submissions by reference to that evidence, not what appears in italics in the written submissions. -- 22 of 48 -- 23 alleged incident that they were giving evidence about (rather than going immediately to cross-examination).39 [9] The standard of proof which applies to the determination of factual matters on this review proceeding is the balance of probabilities. However, having regard to the serious consequences for the respondent, in applying the civil standard of proof the court must apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336. That does not mean the standard of proof varies – it remains for the court to be satisfied on the balance of probabilities – but the “clarity” or “cogency” of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters alleged, needs to take account of the seriousness of the allegations and the consequences.40 In a practical sense, that means the evidence may need to be clearer, or more cogent, than may be required in proof of less serious matters.41 This standard is reflected in s 15(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003, in relation to the level of satisfaction required before the court may decide a prisoner is a serious danger to the community in the absence of a division 3 order – a matter to which the allegations the subject of the findings below are directly relevant. [10] The parties agreed that the most efficient way of proceeding was for the court to hear the evidence and make findings about the alleged custodial incidents, which findings would then be provided to the psychiatrists before they are called to give further evidence. [11] These are my findings in relation to the alleged custodial incidents, which are addressed in chronological order, commencing with the date the continuing detention order was most recently confirmed. 15 May 2020 [12] The continuing detention order is confirmed. 20 May 2020 [13] On this day, Dr Pidgeon was working as the Senior Medical Officer at the Wolston Correctional Centre. She had only recently started in this role. She conducted a consultation with the respondent. Before doing so, she had reviewed his health records and charts, and noted that he had previously been prescribed, by another practitioner, a drug called Kapanol, as a short term medication for chronic back pain. That prescription had run out on 13 May 2020. She also observed that a second practitioner had been asked to re-write the prescription and had not done so, because they had formed the conclusion that the respondent did not meet the criteria to require Kapanol. [14] As Dr Pidgeon explained in her oral evidence, Kapanol is a slow-release morphine. 39 I record that for convenience, as each of the affidavits was formally read by the applicant, they were not separately tendered as exhibits: see Manson v Ponninghaus [1911] VLR 239 and Austress v Marlin [2002] NSWSC 958 at [9]-[10]. The witnesses who were required for cross-examination were asked to confirm the contents as true and correct, and the trial proceeded on the basis that each of the affidavits in the applicant’s list of material (exhibit 1) formed part of the evidence before the court. 40 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; Refjek v McElroy (1965) 112 CLR 517 at 521. 41 See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 per Mason CJ, Brennan, Deane and Gaudron JJ. -- 23 of 48 -- 24 [15] After reviewing the respondent, Dr Pidgeon formed the view that he did not meet the criteria for Kapanol and advised him that this medication would not be continued. As she said in her oral evidence, “I didn’t think that there was an indication for strong opiates or morphine. It’s not in any of the guidelines for the management of chronic backpain. It’s got a strong potential to be misused, and I thought that there were some simple analgesic options that hadn’t been appropriately tried beforehand”, namely paracetamol and anti-inflammatories. [16] Dr Pidgeon said that, in response to her telling him the medication would not be continued, the respondent became upset and unhappy, his mood escalated, and he became louder. As he was leaving the consultation room, he said to her words to the effect of “I’ll see you on the outside in seven months”. She asked him if that was a threat, and he said no, that he meant he was going to wait until he could consult a doctor once he had been released from custody. However, she perceived the statement to be a threat because the consultation had ended in a tense manner and the respondent turned around as he was leaving the room to make the statement to her, directly. [17] In cross-examination, it was put to Dr Pigeon that what the respondent said was “don’t worry about it. I’ll see youse on the outside”, with “youse” being a reference to the medical profession generally, not her personally. Dr Pigeon accepted it was possible the word he said was “youse” but said that did not change the fact that she felt threatened. [18] Dr Pigeon says in her affidavit that a nurse Langford approached her after the consultation with the respondent had finished and told her the respondent was a “nasty piece of work” and advised her to report the incident “to Intel”. In cross-examination she disagreed that this was the reason she had reported what the respondent said. [19] The court also heard evidence from officer Potter, a custodial corrections supervisor employed at Wolston CC. He said that on 20 May 2020 he became aware of what the respondent had said to the doctor, and as a result contacted a Queensland Health staff member at the health centre at Wolston CC and asked that they put in writing the behaviour of the respondent. Dr Pigeon did this, in an email prepared on that day. [20] Later that same day, after the respondent had been taken back to his unit, a “code blue” was called. This is the code for a medical emergency. Officer Potter recalls this occurred after the respondent had made several calls to “buzz up” complaining of chest pains (“buzzing up” is a reference to a prisoner using the intercom in their cell to call). Officer Potter says he contacted the Cultural Liaison Officer (CLO) and asked that she contact the respondent and attempt to “deescalate” him. He then offered this assistance to the respondent, but says the respondent said he had no intention of speaking with the CLO and that she could “fuck off”. Mr Potter took the respondent to the detention unit. Within 10 minutes he “buzzed up” again. [21] The respondent was brought back to the medical centre, this time in handcuffs and legcuffs. An ECG was performed. Dr Pigeon reviewed the results and observed that they were normal. [22] It was suggested to Dr Pigeon, in cross-examination, that the respondent could have been suffering withdrawal symptoms after ceasing the Kapanol medication, as an explanation for his behaviour. She said she did not believe a person could become addicted over the fairly short period of time he had been prescribed that medication (about two weeks) and -- 24 of 48 -- 25 noted also that the respondent had not had the medication for some days before she saw him. Although she acknowledged the possibility of withdrawal symptoms, she said it would be more common in long-term use, and also said that she did not document any signs or symptoms to suggest the respondent was in withdrawal from Kapanol at the time of her consultation with him. The respondent did not give any evidence of suffering withdrawal symptoms at the time. Accordingly, I do not accept this is an explanation for his behaviour. [23] It was put to Dr Pigeon that she received a letter of apology from the respondent. She said she “received a letter from one of the nursing staff via the nurse unit manager that was addressed very informally, not to myself as my profession”. She said she did not take it as an apology because it was not respectfully addressed to her. [24] The letter being referred to was not shown to Dr Pigeon. However, there is before the court evidence from registered nurse McComb. He was working at Wolston CC on 6 June 2020, delivering medications to prisoners. The respondent presented for his medications and, when he did so, gave nurse McComb two handwritten letters. Nurse McComb asked the respondent what they were about, and the respondent said something to the effect that he was unhappy and thought the nursing staff were out to get him and were messing with his medications and he was “going to take us to A Current Affair”. Although he started to read the letters, nurse McComb noticed the respondent was becoming “quite elevated”, behaving differently to what was the norm for their interactions, in which they “usually had a good rapport”. So nurse McComb tried to “deescalate him”, saying “I’m sorry you’re not happy” and promising to forward the letters onto the relevant people. Nurse McComb read the letters later and decided that it was appropriate to refer them to someone senior because they appeared to contain threats directed at specific nurses. [25] The letters are exhibit HM1 to nurse McComb’s affidavit. The second of these is addressed to “Kristal / Crystal Clear”, has the date “22-05-2020” and begins “Hi there mate”, going on to say (in part): “For I would like to apologise to you for being rude. Because it was wrong of me to make you feel un-comfortable around me. But in saying that. (I did not threaten you). Or abused you at all. I was just a rude smart-ass at the time. Correct me if I’m wrong. For I said to you at the end. “Don’t worry about it. For I go home in 7 months time. I’ll just see yous on the outside”. You said to me straight away. “Is that a threat”. I replied to you respectfully. “No”! And I thought that I filled you in of what I ment by it. As I explained to you. “I’ll just see a doctor on the outside. Because the services here is bullshit”. Isn’t that what I said. Because I know what is a threat. And what isn’t a threat. So please do me a favour and come clean with what was really said. (PLEASE). …” -- 25 of 48 -- 26 [26] The respondent gave evidence that he had gone to the doctor to see if he could get his medication, pain killers for his back, given back to him. He said “I asked the doctor if I could be prescribed my medication because I just got a good result at court stating that I might be going home in seven months time if I maintain a breach-free history, and I just needed a little help, and I would like to be reimbursed my medication if that’s all right”. Although he also said he did not want the specific one he had been on, just “Tramadol and Lyrica”. He was frustrated that the doctor would not do that, as he felt the things she suggested (Panadol etc) would not work. He said the words he used were “I’ll see youse on the outside” and what he meant by that was, essentially, “don’t worry about it; stick it where the sun don’t shine” and “I’ll see a doctor on the outside”. As for the letter, the respondent said he had been “stuck on a safety order”, assumed the doctor was taking it further than it should have been and wrote that to help correct “the mistake that might have been made on her behalf”.42 [27] I accept the evidence of Dr Pigeon and also of Mr Potter. The only challenge to Mr Potter’s evidence was to put to him that the respondent did not swear. Mr Potter maintained that he did, and I accept his evidence. Whilst I accept that the words used by the respondent to Dr Pigeon could well have been “I’ll see youse on the outside”, I find that the respondent acted out of frustration at the time, spontaneously or impulsively directing this comment to the doctor as he left the consultation, which was reasonably construed by her as threatening. I do not accept the respondent’s evidence that he simply conveyed that he would wait and see another doctor when he was released. This behaviour is consistent with the pattern of the respondent’s behaviour which is revealed by the evidence before the court on this review hearing, of tending to “lash out” without thinking. He clearly regretted that later and took steps to try to unwind it, in the form of the letter dated 22 May 2020. 6 – 7 June 2020 [28] As just discussed, on 6 June 2020 the respondent handed two letters to nurse McComb. The second of those was the letter apparently addressed to Dr Pigeon. The first was dated 5 June 2020 and addressed “To all that care”. It includes allegations that “the nurses” have interfered with the respondent’s medication and of corruption and other conduct. The letter states that the respondent “hate[s] you all” and outlines “some of my plans to make you all suffer” – which include holding a community meeting, recording interviews with “every inmate prisoner as possible” and giving the stories to the media. The letter names nurses called “Merve” and “Dave” in particular. The letter includes the following: “Now this ain’t a threat. So read it carefully. Hypothetically now. Because of all the bullshit treatment that doctors and nurses give inmate prisoners that if a dangerous prisoner gets out of prison. And seriously hurts a doctor or nurse. To get back at you all. For being judgmental. 42 See also Dr Aboud’s report dated 3 February 2021 at pp 13-17, where Dr Aboud records what the respondent told him about various incidents, including this one. Dr Aboud’s assessment of the respondent, for the purposes of this report, occurred on 20 November 2020, so he has only spoken to the respondent about the alleged incidents up to that point in time. -- 26 of 48 -- 27 For the record. I have heard a lot of inmate prisoners over the years threaten nurses and doctors. But it will only take one inmate prisoner to do it. Please hear me now. Because the world is going crazy. And beautiful nurses shouldn’t be assholes towards people. They should be life savers. Not Devils! That is why I plan to take serious action when I get out of here. Mark my words. Because if I see on the news one day. That a crazy ex prisoner threw acid onto a doctors or nurses face and jumped into a car and took off. Then I am going to say. ‘I knew this would happen’”. [29] Nurse McComb gave the letters to her team leader, nurse Harris. [30] Nurse Harris gave these letters to officer Music, who is a custodial correctional supervisor and tactical response team commander at the Wolston CC. [31] Officer Music spoke to the respondent on 7 June 2020 about the letters. In his affidavit, officer Music says: “During the interviews, the respondent said he did and didn’t say the things in the letters. I discussed the contents of the letter with him. The respondent said he wrote the letter but continued to argue that he was discriminated against due to his ethnicity as an aboriginal individual and that he had not been offered anything, which I took to mean medication through Queensland Health. He said words to the effect that some nurses were making him endure pain, whereas others gave him the medication he asked for.” [32] Footage of the conversation between officer Music and the respondent is in evidence. The officer says he is there to talk about letters the respondent has sent to the nurses, which contain indirect threats. The respondent reiterates that the letter was not a threat in his eyes, at one stage saying he would not put that in handwriting, but was rather his attempt to make the nurses understand the seriousness of the situation. Officer Music tries to tell him that there are other, more appropriate channels, to make complaints, and that he needs to understand that writing letters like that does not help anything and that he is not helping himself. [33] As a result of this interview, and officer Music’s investigation of the incident, the respondent was placed on a “full segregation safety order” until the next day when “the boss” would be there. [34] When he was asked about this letter by Dr Aboud, the respondent is recorded by Dr Aboud as having said: “What I was getting at was when you’ve been in jail for so many years you get frustrated, and when you don’t get what you want inmates make those type of threats. So it gets into my head, all that talk. I was just commenting that that’s the way other inmates think and the threats they make. Not me making threats; how others think.” -- 27 of 48 -- 28 [35] In cross-examination, the respondent said Dr Aboud had “word[ed] it in the wrong way”, and: “The way I say it is inmate prisoners over the years have made a lot of threats out in the yards. They didn’t get their medications off the doctors or the nurses, so they’ve come out into the yard abusing a nurse in my presence, saying horrible things like, “I should get out of jail and throw fucking acid in the fucking dog scum’s face,” or, “How about I go out there and kidnap the bitch and take her out in the bush and rape her and kill her,” or all sad-looking – sad kind of things like that over the years. I had to sit there and listen to this profanity where it gets inside my head and psychologically damages me because now I’m having these thoughts that inmate prisoners have put there. Where I had to get up at times and walk away. So, in writing the letter, I was only trying to help them understand that they should just stick to their jobs as a nurse and let the doctors do their jobs because, really, they’re creating dramas by trying to do the doctor’s job and all this and that, and these are the things that might – what could happen in the near future if an inmate … decides to get out of jail and do it.” [36] The respondent said he did not see what he had written as a threat, although acknowledged now that he could see the nurses “wouldn’t feel too good” about it. He said at the time he was not really thinking of them, he was more thinking how he felt. 19 June 2020 [37] The respondent was taken to the PA Hospital due to a medical condition on or before 19 June 2020. The next incident occurred on the night of 19 June 2020. Officer Rao was one of three officers responsible for guarding the respondent that night. The other two officers were named Curtis and Delavinias. There was no evidence from those two officers. [38] The respondent was restrained to the bed by a handcuff and a legcuff. He was in an open ward, with four beds, and curtains as partitions. There was one other prisoner in the ward at the time, who was guarded by another two officers. Officer Rao said at about 7.20 pm, the respondent removed the canula from his arm, which caused bleeding. He heard the other officer, Delavinias, tell him not to do that, and to speak to the nurses if he had an issue. He described the respondent as becoming “more elevated”, saying he wanted the restraints removed, access to the shower, access to the TV, to be left alone, and complaining of the patient next to him being too loud. Another canula was inserted at some stage. [39] Officer Rao said every half an hour to an hour, the respondent’s behaviour would fluctuate to varying levels of agitation, complaining about various things. At about 10 pm, the respondent became very agitated when he asked for the partition curtains to be fully closed, and officers Rao and Delavinias refused, because they needed to have full sight of him. He again demanded that the restraints be removed, saying it was breaching his human rights to be restrained. Officer Rao says he then heard the respondent call Delavinias a “sex pest” and say words to the effect that it was because he (Delavinias) was talking to the female officer on duty (Curtis) and this made the respondent feel -- 28 of 48 -- 29 uncomfortable. At some stage in this interaction the respondent said he wanted to self- discharge and go back to the jail. [40] Officer Rao says the respondent then raised a clenched fist towards him and Delavinias, saying words to the effect of “come on fuckwits, I will hit you and knock you all out all sick [six?] of you cunts”.43 He removed the second canula from his arm, causing bleeding, saying something like “it’s my body I can do whatever I want to”. [41] As a result of the respondent’s behaviour, officer Rao decided to call for additional assistance. The PA Secure Supervisor arrived and was able to calm the situation down. Officer Rao wrote a report of the incident on the night it occurred which is consistent with the evidence he gave in court. Officer Delavinias did also, but as he was not called to give evidence I do not accept his report as admissible as to the truth of its contents.44 [42] The respondent’s evidence was that the officer whose name starts with D (I infer, Delavinias) was interacting inappropriately with the female officer (Curtis). He described one incident in which D reached over and touched the female officer’s chair, near where her bottom was sitting, and said “that’s a nice soft chair” and another when D reached for a bottle of hand sanitiser which was near the foot of his bed, where the female officer’s “vagina was near it”, took some squirts of the sanitiser and said “that’s good for your hands”. The respondent thought she was offended. He says at about 10 pm he was tired and wanted to go to sleep and asked officer D if he “could keep it down” (because he was still speaking to the female officer) and close the curtain. He says officer D pulled the curtain across a bit and said “that’s all you’re getting”. After D kept talking, the respondent said “fuck this shit” and said he’d like to go back to the prison. He says D asked him “what’s your fucking problem?” and the respondent said “you, you fucking sex pest”, going on to say he’d been there all day listening to him, “trying to fucking chase tail” and that he just wanted to go back to the jail. He says D then said “shut up or I’ll fucking thump you”. The respondent reacted to that by standing up on his bed (he was handcuffed but able to stand) and said “what, you want to fucking thump me. Well come over here and fucking try it. See how far you get. Come on”. He said officer Rao, and another officer who was in the room, guarding another prisoner (Dylan) tried to calm him down, but he was (in my words) fed up, said he wanted to go back to the jail and pulled the drip out of his arm. Then another officer (Jackie) arrived and it all calmed down. The respondent contends that, after officer D left, officer Rao said to him that he had done the right thing, would not be breached for this, acted in self-defence, and that he had been watching D’s conduct all day too. Officer Rao denied that he said any of these things. [43] When asked about this incident by Dr Aboud, the respondent is recorded as having said: “That was not the entire truth, what they said [referring to the officer’s report]. And you’ve been asking leading questions. Officer D was a nice bloke, but he was also hitting on a female officer. She was only young, and he’s in his 40s. She was near to being offended, but also liking it. He put his hand near to her vagina, as if it was him pointing at the hand sanitiser. Anyway, after I’ve seen him chatting her up all day, 43 There is a slight difference in wording between what officer Rao says at [18] of his affidavit and in the incident report which he wrote on 19 June 2020 (the affidavit does refer to “all six of you”). I have set out here what appears in the contemporaneous note. 44 Exhibit DM-4 to the affidavit of Music; cf s 92(1)(b) of the Evidence Act 1977. -- 29 of 48 -- 30 I called him a sex pest. I never said I was going to hit anyone. He said, ‘shut up or I’ll thump you’, so I said ‘go on you tough cunt’.” [44] It was put to officer Rao in cross-examination that the respondent only became agitated after Delavinias said something to the respondent, when the respondent said he wanted to go back to jail. As noted, the respondent’s evidence is that Delavinias said to him “shut the fuck up or I’ll thump you”. Officer Rao did not accept that Delavinias said anything like that to the respondent. He also said “we were trying to calm him down, so I know that he didn’t abuse Mr Currie at all”. Officer Rao did not accept that the respondent only became agitated at this later point in time, saying that the respondent “was agitated probably every half an hour to an hour with different things, so I can’t pinpoint on what exactly made him aggravated”. [45] Officer Rao confirms that the respondent did call officer Delavinias a “sex pest”. That is quite a different sort of comment, abusive or otherwise, to the general pattern of the respondent’s behaviour demonstrated by the evidence. I am prepared to infer that there was some conduct by Delavinias, directed to Curtis, on this night, which led the respondent to make this comment – for example, that Delavinias was (or was trying to) “chatting her up”, to use Mr Fenton’s words. Whilst officer Rao said he could not recall any specific interaction between Delavinias and Curtis, he did say he understood the respondent’s use of the word “sex pest” to be the respondent referring to Delavinias’ interactions with Curtis. [46] Neither Delavinias nor Curtis were called as witnesses, nor were the other two officers who were in the ward, guarding the other prisoner. No explanation for their absence was proffered, other than the general statement that the solicitors for the applicant had obtained affidavits from all the officers that they were able to. Officer Rau’s evidence was that both Delavinias and Curtis are still employed by QCS, as far as he is aware. The respondent submits a Jones v Dunkel inference should be drawn. In the circumstances, I am prepared to draw the inference that any evidence Delavinias or Curtis would have given would not have assisted the applicant’s case.45 In that regard, the applicant’s position on this review hearing is that she does not have a “case” as such, as it is a review of the continuing detention order being conducted by the court. However, for the purposes of this review, the applicant does allege the respondent has been involved in a number of custodial incidents, about which evidence has been called, and does contend that on the basis of that evidence, and the psychiatrists’ opinions, the review ought to result in the continuing detention order being confirmed. [47] But in terms of what can be made of that inference, it is important to keep in mind it is not an inference that the evidence of the absent witnesses would be adverse to the applicant’s case, nor is it a matter of speculating about what their evidence would have been. In terms of the conflict between the evidence of officer Rao and the respondent, I prefer the evidence of officer Rao. I do not regard the respondent as a credible or reliable witness. As observed by Dr Aboud,46 the respondent’s explanations for his various behaviours include denial, minimisation, rationalisation and justification – particularly by blaming others. That is very apparent upon a consideration of the evidence which has been received so far in this review proceeding. I approach his explanations with a degree of caution, in terms of the truthfulness and accuracy of them. The evidence 45 See Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361 at [63]-[64]. 46 Dr Aboud’s report, 3 February 2021, at p 19. -- 30 of 48 -- 31 clearly demonstrates that he has a tendency to act impulsively, at times in circumstances where, as he acknowledges, he has developed a heightened sense of paranoia and sense of victimisation, and then when called out or challenged about his behaviour, to try to explain or deflect or blame others. As I have said, I accept that there was likely some interaction between Delavinias and Curtis which prompted the “sex pest” remark from the respondent. But I reject the respondent’s evidence that he did not become agitated until Delavinias said something to provoke him, and that Delavinias threatened to “thump” him. Officer Rao’s evidence, which I accept, is that the respondent was agitated from quite early on in his shift (which started at 6 pm). I reject the written submission that “it would seem unusual that Mr Currie would simply erupt and threaten officers in the manner that is alleged”, as being inconsistent with the evidence more broadly of the respondent’s, at times, impulsive behaviour. In the circumstances, although a Jones v Dunkel inference is available, it does not alter my finding, on the basis of officer Rao’s evidence. [48] For completeness, I note that the applicant had initially included reference to another alleged incident, on 19 June 2020, relating to an unusual cream found in the respondent’s cell upon a search conducted that night. However, the evidence was that the cream found was analysed and there was nothing found which warranted any further action. Accordingly, I disregard this evidence. 20 June 2020 [49] The following night, the respondent was still at the PA Hospital. Custodial Correctional Supervisor Luker was on duty that night, with officer Curtis, at the hospital, from about 6 pm. Officer Luker gave evidence of observing the respondent, from about 6.15 pm, trying to engage staff in an aggressive argument, saying words to the effect of “black cunt… its my country I can say what I want…. You’re a Captain Cook cunt”. He also heard the respondent say to him “I will find out where your family and that cunt Steve Wright’s family live and get at them”. Steve Wright is the Correctional Manager of Wolston CC. Officer Luker told the respondent to stop threatening people and that these threats would be reported to the Queensland Police, to which the respondent replied “I am allowed to threaten who the fuck I want, this is my country. I can say whatever I fucking want. I could do this and be on a plane to America just like that”. Officer Luker told him the escort (to the hospital) would be cancelled if he continued to make threats. The respondent then called the medical staff and told them he wanted to discharge himself. He was returned to the Wolston CC that night. [50] The respondent’s evidence about this was that he was speaking to officer Curtis “about what happened the night before” and officer Luker told him to stop talking about that, which caused the respondent to get offended and so he turned to him and said (words to the effect of) “You and Steve Wright and all the rest of youse at Wolston are all corrupt. You know, when I get out of jail and get youse all placed on investigation through the media and all this and that and see how you like the attention”. The respondent added that “I always keep my threats legitimate when I speak to these people so they don’t have no ground to stand on”. He described Steve Wright as the “block manager” who had made a number of decisions about him which were “all against me” and he believed “I was being racially abused by an officer that had no control over his emotional feelings” (referring to Wright). [51] When asked about this incident by Dr Aboud, the respondent is reported to have said: -- 31 of 48 -- 32 “That’s not what I said. I said, ‘You’re all corrupt, I can get you sacked. Once I get out, I’ll get the media on you.” [52] Officer Luker’s evidence in cross-examination was that he did not know anything about an incident from the night before. He agreed that the threats made by the respondent included that he would get the media onto him and Wright once he got out, but maintained that the respondent made the threats described in his evidence in chief, and which he recorded in his contemporaneous note of the incident. I accept Officer Luker’s evidence. I found him a forthright and credible witness. I therefore find that the incident on this night occurred as described by him. The absence of evidence from officer Curtis does not affect my conclusion in this regard, because it is based on acceptance of officer Luker’s evidence. I do not regard the fact that officer Luker’s evidence in court was more expansive than appears in his contemporaneous note of the incident as calling the reliability of his evidence into question. On the central part of it – the threat said to have been made by the respondent – the contemporaneous note and his evidence were consistent. [53] When asked about this incident in cross-examination, in particular what justification the respondent had to speak to the officers in this way (referring in particular to the Captain Cook comment made to officer Luker and, later in the course of the rant on 9 October 2020, discussed below), the respondent said: “Well, when you go through a lot of treatment in prison after 28 years of the abuse by racism, and you feel like you get neglected, and every time you buzz up and you ask for help, people saucing you, and no-one seems to be [doing] anything about the situation, you tend to build this paranoia thought about other people. See, racism is a sickness. I wasn’t born with it. I’ve got five different nationalities in my system. My mother dated nothing but white men. I come to prison. I see guys with swastikas who are supposed to be my friends turn on me because they see me as an easy target so they can get their parole or a good case report for the deeds they do for officers. So over the years I’ve lost a lot of respect for officers, and the only way I know how to let this anger out is insult them where it’s not a threat, or a direct abuse, or where I have a right to my opinion. And if I want to call someone a racist and it makes me feel good then I will. I’m not proud of it.” 6 July 2020 [54] The incident on this day involved two custodial corrections officers, Wood (formerly Trengrove) and Currie. It is alleged that on 6 July 2020 the respondent made offensive and discriminatory (sexist) remarks to officers Wood and Currie. Both officers made contemporaneous notes about the incident, on 6 July 2020. In some respects officer Wood’s affidavit, and her oral evidence, differ from what she recorded on the day. What she recorded on the day is consistent with what officer Currie recorded on the day, with officer Currie’s evidence before the court and also with the video footage which is available. Accordingly, to the extent of inconsistency, I prefer the contemporaneous record to officer Wood’s affidavit or oral evidence. [55] I find the incident occurred in the following context. At about 3 pm the respondent was in the exercise yard of his unit with another prisoner. He and the other prisoner were -- 32 of 48 -- 33 told to come back inside, as there was another prisoner, W, who needed to go out to the exercise yard to make a phone call. W was on a “full segregation” safety order, so could not be out there with other prisoners. The respondent was escorted in and told to wait near the door of his cell, while prisoner W was being escorted out. It is not apparent that, at this time, the respondent made any comments about female officers generally, or officer Wood or Currie in particular.47 The interaction between officer Wood and the respondent was quite civil and calm (as can be seen in the video footage48). [56] Once prisoner W was secured in the exercise yard, the respondent returned to the common area of the unit. He made comments to officers Wood and Currie to the effect that they took a risk by having him and prisoner W in close proximity to one another, and that he was ready to “punch on” with prisoner W. He then said things to the effect of: “what were you going to do if [prisoner W] and I got into a fight? You are only women. It’s not like you can do anything. You couldn’t jump in and break us up, you don’t have the size or strength to do that like men”; “its not like you have the muscle that men have and can step in to do anything”, “its just a proven fact that women can’t do the job like the men can”, “just look at the size of you compared to the male officers”. He also made comments that women should not be in the job (as custodial corrections officers) and only men should work here. [57] Officer Wood told the respondent his comments were offensive and discriminatory towards female staff; that all staff were trained in the same way and that both officers would act in accordance with their duties. Officer Currie attempted to make light of what was an uncomfortable situation by saying to the respondent that she might be a bit more agile than him, to which he laughed, and the conversation ended. Officer Currie said she was offended by the respondent’s comments, but decided the best thing to do was to make light of the situation, to “de-escalate him” – as she said, “sometimes you’ve got to swallow your pride a little bit just to avoid, like, escalating a situation”. I observe that, in the video footage which captures officer Currie’s response – that she might be a bit more agile than the respondent – the situation does not appear particularly tense or “escalated”.49 [58] Officer Wood reported the respondent’s comments to the correctional supervisor. She says the respondent was taken out of the unit and spoken to by the supervisor about his behaviour and then returned to his cell. She also states that after this incident the respondent was transitioned from his existing “improved behaviour plan” to a “full segregation safety order”. [59] Officer Wood gave oral evidence that the respondent’s behaviour continued to escalate throughout the day, referring to some further things the respondent said later that day, again about women officers: that women officers sleep with all the prisoners, that they were sluts, whores and disease-carrying scum.50 She does not refer to this in the incident report she prepared on 6 July 2020, although her evidence was that the report was prepared shortly after the original incident and this occurred later. This later behaviour is not mentioned in her affidavit either, although at [15] officer Wood does say that after 47 Compare officer Wood’s affidavit at [11] and [12] and the contemporaneous note (exhibit MW1, 2nd paragraph). 48 Exhibit 2 (file name: Incident_285520_Offensive_Behaviour_CURRIE_2020-07-06_1459). 49 Exhibit 2 (file name: Incident_285520_Offensive_Behaviour_CURRIE_Video_2020-07-06_1503). 50 T 1-46 lines 18 to 23. -- 33 of 48 -- 34 the respondent was escorted back to his cell, he continued to make offensive and discriminatory remarks. At [23] officer Wood says that her “subsequent involvement with the respondent on that date [6 July] was only to the extent necessary to carry out my daily duties, such as delivering him meals and medication”. Officer Currie makes no reference, in her affidavit or her incident report, to this later conduct either. [60] There is some similarity between what is described in officer Wood’s oral evidence, at T 1-46 lines 18 to 23, and an incident report prepared by another officer, referring to conduct allegedly directed at another officer, named Cameron, on 7 July 2020, when the respondent used the cell intercom to call her. This was officer Tiffany Cameron51 (not the officer Andrew Cameron from whom evidence was received in the present hearing).52 Officer Tiffany Cameron was not called to give evidence. In the absence of that officer being called as a witness, no exception under s 92(2) of the Evidence Act 1977 being applicable, the incident report is inadmissible. [61] In cross-examination, officer Wood acknowledged that she was referring to what was said to officer Tiffany Cameron over the intercom. Officer Wood said she did not prepare an incident report about this, because someone else had done it – ie Tiffany Cameron. However, she maintained that she heard the respondent say those words. [62] I accept officer Wood’s evidence of what she heard the respondent say later in the day on 6 July 2020. It is consistent with other evidence, which I accept, of the respondent’s behaviour the following day, 7 July 2020 (in terms of the things he was saying), and with his increasing agitation as a result of officer Wood having reported his earlier offensive comments to the supervisor. [63] The respondent’s evidence, in relation to the exchange when he was back in the kitchen area, is that he said to Wood that what she had done (in escorting prisoner W out to the exercise yard) was against policy and could have resulted in a fight, and if that happened asked who would get in trouble for that? He said officer Wood replied that she would break it up, to which he responded “look, you two are just women, no offence; we’re men”; “it takes about six officers to bring [W] down alone – male officers – where – I know how many it takes to bring me down too” and laughed about it. [64] When asked about this by Dr Aboud, the respondent is said to have said “I did say something like that, but I was talking to myself”. [65] As noted, the respondent contended it was a breach of procedure or protocol for prisoner W to be moved from his cell to the exercise yard without the respondent being secured in his cell – essentially, that there had to be a secured door between them at all times. The evidence does not support that. On the contrary, it was the consistent evidence of the officers who were asked about this in cross-examination (Wood, Currie and Nilsen) that whilst a person on a “full segregation” safety order could not be around other prisoners, for example in the exercise yard, they could be escorted through the unit, in the company of officers, even if people on a “partial segregation” safety order were not in their cells. There was no evidence to support the respondent’s contention that there was a specific order or protocol in place relating to him and prisoner W. 51 T 1-59 line 22. 52 Exhibit MW-4 to Wood’s affidavit. -- 34 of 48 -- 35 [66] The submission made about this incident on behalf of the respondent is that “if the remark is sexist then it is at the extreme lower end of sexism and is really of little or no value in determining whether or not Mr Currie is a serious danger to the community. The psychiatrists ought not to be troubled by so an innocuous remark”. [67] In my view, the relevance of this behaviour is not that it is sexist or discriminatory per se, but rather the potential security or safety risk that may arise where a prisoner defies or challenges the authority of an officer, because of their gender. Looked at from that perspective, one can appreciate why remarks of this kind are picked up and acted on. Having said that, I will be interested to hear the evidence of the psychiatrists, as to what they perceive to be the relevance or otherwise of this, in the context of the respondent’s custodial behaviour overall. 7 July 2020 [68] Officers Wood and Currie were again rostered on to work on 7 July 2020. Officer Wood describes the respondent exhibiting “passive aggressive behaviour to staff… such as by making snide comments to staff”, and says she believes he was agitated from events the previous day. She also says she was aware that, at this time, the respondent had “interpersonal conflict with another co-prisoner”, who it seems was prisoner W. The respondent was offered exercise time in the morning on this day but declined. At about 1.45pm, officer Wood said he made loud comments from his cell, “alleging that I was having intercourse with that co-prisoner”. She also says she heard him “buzz up” to the Secure 1 (S1) officer, saying words to the effect “that fucking bitch has it out for me” and “she is fucking [that prisoner]” and “they’re in it together”. After making these comments, officer Wood says the respondent requested permission to exercise. She told him he had already refused exercise that morning and was not permitted to exercise at the time of his request. [69] Shortly after 2pm officer Wood received a call from the S1, advising that the respondent was making threats to self-harm and claiming that he had a razor which he intended to use. Officers Wood and Currie went to check on him. There is video footage of this, from the body-worn camera used by officer Currie. As described by officer Wood, he was in a highly agitated state, saying things to the effect of “what’s another black death in custody”, “black lives matter too” and “who gives a fuck”. He also continued to make comments about officer Wood, along similar lines to those he made when he buzzed up to the S1 officer. He had covered up the viewing window of his cell and refused to remove it. Officer Currie spoke to him, trying to get him to uncover the window and trying to calm him down. Officer Wood was present with officer Currie but stayed to the side and did not interact with the respondent, so as to not further escalate the situation, given that the respondent’s behaviour was largely directed towards her. Officer Currie described him as being highly agitated. He was demanding to speak with a supervisor, expressed his anger about not having been allocated yard time, said he felt officer Wood (then called Trengrove) was unfairly targeting him and that the officers were racist. [70] Eventually, the officers determined to call a “code yellow” to obtain assistance in relation to the respondent’s threats of self harm, and because they could not see him in his cell. Other officers arrived, entered the cell and spoke to the respondent until he had calmed down. -- 35 of 48 -- 36 [71] One of those officers was correctional supervisor Douglas Nilsen. As he put it, the respondent “calmed down through the opportunity to vent and have his say about being able to access exercise”. [72] The incident report prepared by officer Currie on the day, 7 July 2020, concludes with the following: “At approximately 1430 after responding staff had exited the unit, I again attended CURRIE’S cell and he was sitting on his bed calmly with nil signs of harm. He was advised that he was able to access yard time between the hours 1600-1700 in Secure unit 5 to which he calmly agreed. He made attempts to justify his previous poor behaviour by stating that he will never back down from expressing his opinion as this was his basic human right, further that he understands that is partly the reason for him being in custody. I explained to CURRIE that it would be in his best interest to consider how his opinions can affect others and that sometimes its best keeping opinions to oneself in order to avoid confrontation He agreed that he would attempt to consider this for future interactions.” [73] In his evidence the respondent said he was “expressing my emotional feelings how I felt at the time that I – I’m not going to go down quietly and going to make a scene if I have to because they refused to let me see the supervisor”. [74] When asked about this by Dr Aboud, the respondent is reported to have said “Look it wasn’t as bad as they’re making it out. Maybe I said some of those things, but not like that. But it’s true that women aren’t as strong as men”. 22 and 30 July 2020 [75] The respondent was moved from the Wolston CC on 22 July 202053 and transferred to the Maryborough Correctional Centre, arriving there on 30 July 2020.54 20 September 2020 [76] On this date, Corrections Supervisor Hodge was working. As a result of something another officer told him, he viewed the CCTV footage from the afternoon of the day before from the common area of the unit the respondent was then accommodated in at the Maryborough CC. He says he saw (in the video footage) the respondent walk up to the zip boiler tap and hit the tap more than once. He says he observed that the tap was knocked from its metal fixing and was left hanging. He then went to speak to the respondent in his cell about this. The officer who was apparently present when the respondent is alleged to have hit the zip boiler (officer James) was not called to give evidence, and I do not accept as admissible as to the truth of its contents the incident report prepared by him which is annexed to officer Hodge’s affidavit.55 [77] Officer Hodge’s evidence about what the respondent said, when interviewed about this, was unsatisfactory. In his affidavit, he says he does not recall what the respondent said, 53 Affidavit of Joel Smith (sworn 22 July 2021) at [6]. 54 Affidavit of John Owens (sworn 22 July 2021) at [5]. 55 Cf s 92(1)(b) of the Evidence Act 1977. -- 36 of 48 -- 37 in response to being told a report had been submitted in relation to the damage and that an incident would be raised and what he could expect in terms of breach action. In his oral evidence in chief he said the respondent “admitted it” (ie damaging the tap), but then in cross-examination, when it was put to him the respondent never admitted, directly or indirectly, that he had damaged the boiler, said “he didn’t verbally admit it, no”, and then confirmed when I asked him to clarify what that meant, that “he didn’t admit it”. [78] The respondent’s evidence was that the zip boiler tap was already broken, the day he arrived at Maryborough CC, and denied that he broke the tap on the day in question. This is consistent with what he told Dr Aboud when asked about this. [79] The CCTV footage is not clear. I accept that the respondent can be seen to appear to hit the tap, but whether it is damaged or not I cannot see. In the absence of any better evidence of this, I am not persuaded to the requisite standard that the respondent did damage the tap. 7 October 2020 [80] On the evening of 7 October 2020, officer Russell was working at the Maryborough CC and one of her duties was to respond to calls placed by prisoners over the intercom system. She received a call from the respondent that night. He was considered to have made threatening statements in this call, in particular directed at the accommodation manager, saying that he had run out of options, that he did not get on with the accommodation manager and would have to take matters into his own hands to get out of jail. [81] There is a recording of this phone call in evidence. The respondent asks if he can speak to the supervisor, saying he’s sick of all the bullshit and mistreatment. Officer Russell says he needs to talk to the boss in the morning, as nothing can be done at night-time. He asks what is it going to take for him to get out, saying he’s been locked in his room all day on a safety order because he can’t afford to go getting in trouble so he’s got to isolate himself to avoid conflict issues and getting breaches. Officer Russell reiterates she cannot help him and that he needs to talk to others in the morning, including the accommodation manager. The respondent says the problem is he does not get along with the accommodation manager, and that he threatened him down at the DU and “I’m not going to be nice to nobody that threatens me”. Officer Russell says he can make a complaint to the ombudsman. The respondent says he’s done that and it didn’t work out so “I’ve got to take matters into my own hands when I get out of fucken jail, that’s the only way to get something done in here. I don’t want to do any of that. But its affected me to the point that I’m running out of options in jail”. He also says something to the effect of “shit was thrown into me room today, and all the mattress and bunk got wet and its been happening… piss and shits been thrown under my door… they’re very childish here…. I’ve just had enough of it, I can’t deal with it no more, I’ve gotta go”. Officer Russell says she’ll try and get a supervisor to come and see him but she can’t promise because its night-time. The respondent also asks for his medication (PRMs). [82] The respondent gave evidence that he had earlier on this day been “sauced” with urine that went onto his sheets and been told by an officer that he would get clean sheets and pillowcases. “Saucing”, he said, refers to a practice where prisoners put urine in the bottle of Worcestershire sauce or barbecue sauce, anything that will stain, and then put -- 37 of 48 -- 38 that up to the air vent at the top of the cell and squirt it, and it goes everywhere in your cell. He says he was the victim of this maybe 30 or 40 times at Maryborough. [83] He said this is what he was referring when he called and spoke to officer Russell and he “was trying to communicate to her that I wasn’t feeling well and that I just wanted to speak to the supervisor so I can get a change of sheets and maybe they can document what’s going on and have me moved out of this unit”. In relation to the words “take the law into my own hands” he said he understands now that could be perceived as a threat but “at the time I didn’t see it as a threat because I thought if you say, “Look, I don’t want – I don’t want to do that”, that’s just a figure of speech, you know, like a bit of sarcasm. Like the only way to get justice around here is if you take the law into your hands and do something about it. That’s the only way you will get justice because everyone else covers things up.” He also said, by reference to this matter, that “I wouldn’t be stupid enough to be recorded over the intercom system when I’ve got a chance of going home to be making threats”. [84] When asked about this by Dr Aboud, the respondent also said “it was sarcasm, not a threat”. [85] For the respondent it is submitted this incident is a cry for help. [86] Whether to accept the respondent’s evidence of the frequency of “saucing” attacks on him is a difficult question. I have serious doubts about the credibility or reliability of his evidence generally. The only evidence before the court that I am aware of (other than this phone call) of any complaints by the respondent about this practice is in Dr Aboud’s report. At p 15 and 16, in the context of referring to various incidents (most of which were the subject of evidence before me, but not all), Dr Aboud includes reference to an incident on 9 August 2020 (in which an unidentified prisoner threw soy sauce through the vent of cell 39, which was occupied by the respondent) and another incident on 10 August 2020 (in which the respondent contacted Movement Control to advise that a prisoner had placed urine under his cell door). There was no evidence called about these incidents at the hearing. The officers who were asked about this practice, and whether the respondent had complained to them about it, said he had not. I accept, as submitted for the respondent, that a prisoner may well not complain about this, for fear of further retaliation – although the references in Dr Aboud’s report just referred to suggest the respondent did complain at times. I also accept, as submitted for the respondent, that there is no evidence of aggressive or retaliatory behaviour of the respondent directed at other prisoners. Having regard to the evidence overall, on balance I consider it reasonable to infer that the respondent has experienced this on at least some occasions, but I regard his evidence of 30 or 40 times as an exaggeration. I consider if that was the case, there would be some record of it, given that corrective services officers would have to get involved in assisting the respondent to clean his cell to some extent at least. 8 October 2020 [87] Officer Hodge was told about what the respondent had said when he called and spoke to officer Russell the night before. He listened to the audio recording. As a result of what the respondent had said, he was moved to the detention unit (DU). -- 38 of 48 -- 39 [88] In the late afternoon on this day, whilst the respondent was in the DU, he asked to use the phone. When a prisoner in the DU asks to use the phone, this is facilitated by providing a cordless phone handset to them in their cell, with the phone number being dialled on the ARUNTA handset which is outside the prisoners’ cells. On this day, the officers dialled the numbers that the respondent gave them, and the cordless handset was passed to him. Several phone numbers were attempted but none connected through. The respondent became agitated by this and accused the officers of “fucking him around”. The officer involved was officer Fordham. He said that at this stage, in order to deescalate the situation, he walked away, but left the cordless phone with the respondent as he did not want to aggravate him further. Sometime later he went back to retrieve the phone. He observed it to feel considerably lighter and that the security seal had been removed. The batteries were missing from the phone. He asked the respondent where the batteries were and the respondent said he had swallowed them. The cell was searched, but the batteries could not be found. A code blue (medical emergency) was called and the respondent was escorted to the medical unit. [89] There is video footage of this escort, and the respondent speaking to a nurse at the medical unit. The footage corroborates that the respondent had said he swallowed the batteries. He acknowledged in his evidence before the court that he had pretended to swallow the batteries. He said he was pissed off about being put in the DU, when he didn’t believe he had made a threat (referring to the intercom call the night before), and frustrated about the phone calls not connecting, thinking (perhaps paranoidly, he acknowledged) that the officers were deliberately hampering this, and pretended to swallow the batteries so that he could be removed from the DU and taken to the medical unit where you can make your own phone calls. To Dr Aboud, the respondent said “I was stressed”. [90] The respondent refused any treatment and refused to be escorted for an x-ray. He was later “cleared by medical” and returned to the DU. As to what else could have happened to the batteries, officer Fordham said hypothetically he could have flushed them in the toilet. The respondent said he hid them in the cell, but they were not found upon a search. [91] There is video footage in evidence of another interaction, later in the evening of 8 October 2020, between an officer (I infer a supervisor), in the company of other officers, and the respondent in his cell in the DU. There was no evidence about this, apart from the footage, and I do not know which officer spoke to the respondent. The officer says it is because he was making some threatening statements and that there will be an investigation. The respondent is visibly upset and frustrated, but not aggressive towards the officers at all. The officers try and tell him that in this environment, Corrective Services, what he said will be taken as a threat. The respondent says “I feel so much pain every day and I can’t do nothing about it.” The supervising officer eventually says he’ll see if the respondent can be taken to the medical unit. [92] I infer that occurred, because the first of the incidents the following day, 9 October 2020, begins with the respondent being escorted from the medical unit. 9 October 2020 [93] There are three incidents on 9 October 2020. -- 39 of 48 -- 40 [94] The first occurred at about 1 pm, when the respondent was being escorted from the medical ward to the detention unit. He was escorted by officers Andrew Cameron (at the time, a tactical response officer) and Gibson, with (then acting) correctional supervisor Hodge walking behind him. As he moved through the reception area, the accommodation manager was there, and the respondent said to him “You’ll be right on the outside”. He is asked if that was a threat, and he said no. He is also alleged to have said to officer Hodge words to the effect of “you Ben Hodge big fella you’ll be right on the outside too”. As they continued walking, he continued to rant about various things, including calling them all “Captain Cook racist cunts”. [95] This incident is referred to in a report written by officer Cameron on 9 October 2020, and also referred to in the evidence of officer Hodge. [96] The respondent’s evidence was that the accommodation manager said something to taunt him, as he was escorted through the reception area, on the way to the DU – that he said “you’ll be right there in the DU”, to which he responded “you’ll be right on the outside”, which he said was a “smartarse remark”, by which he meant “With a smartarse mouth like that I’d like to see you get smart to someone else on the outside and see how far you get”. [97] There is video footage of this incident, from the cameras worn by officers Gibson and Hodge. As he is moved through the reception area, I can hear the respondent say something like “what are you lot talking shit about me for”, then say “Grant”. Someone else says “who?” and the respondent says “you”. I can then hear someone say something like “… make your way to the DU”. And then the respondent says “you’ll be right on the outside won’t ya”, as he walks out onto the walkway, and then starts on what is fairly described as a rant. [98] Officer Hodge immediately asks if he’s making a threat, and the respondent says no. He continues to talk as he is escorted along the walkway, about the person he was directing this to – I assume the accommodation manager (whose name is Grant Walker) – and what he meant by what he said (that he’s got his freedom, so he’ll be right on the outside) and speaking abusively about the staff and other matters, including calling them “all fucken Captain Cook racist cunts”. The officers do not respond to anything the respondent says. [99] I am not able to hear the respondent say to officer Hodge “you Ben Hodge big fella you’ll be right on the outside too”, and so, bearing in mind the standard of proof, do not accept that part of the evidence. [100] Although it was suggested that the respondent only became agitated after he was spoken to – taunted – by the accommodation manager, officer Hodge’s evidence was that from the start of the escort the respondent “wasn’t impressed” with the fact that he was going back to the detention unit. Having regard to the footage, I accept that evidence, and do not accept that the respondent only became agitated after the accommodation manager said something. In addition, from what can be heard, and the tone, I do not accept that the accommodation manager “taunted” the respondent. [101] The second incident began at about 1.15 pm. Officer Cameron observed the respondent’s cell unit door was partially covered. He says he also observed the respondent had ripped his medical gown and heard comments from the respondent to the -- 40 of 48 -- 41 effect that he was attempting, or would attempt, to take his own life. There was another tactical response officer present, officer Gibson. The footage from Gibson’s body worn camera is in evidence. Officer Gibson was speaking to the respondent through the cell door, trying to get him to uncover the window. Officer Cameron was outside the detention unit, where he was able to look into the cell through another window. He told the respondent to follow the directions being given to him by Gibson. The respondent told officer Cameron to fuck off and that he just wanted to end his life. [102] From Gibson’s body worn camera footage, officer Gibson continues to speak to him on and off for about 15 minutes. At about the 8 minute mark, the sound of fabric ripping can be heard and again at the 12 minute mark and there is talk about making a noose. At 1.30 pm, a code yellow is called. As a result, a number of other officers arrived. The respondent removed the paper from the window just prior to the officers arriving. There is evidence of what ensued in the body worn camera footage which is before the court – from officers Gibson, Copson and Gallott.56 The respondent is clearly very agitated. He is directed, by tactical response officer Copson, to place his hands through the hatch of the cell door to be handcuffed. He is directed a number of times and does eventually comply. There is a metal “pin” that keeps a person’s handcuffed hands in place, in the door hatch, but depends on an officer outside the door holding it in place. Once he is handcuffed, three officers enter the cell from a side door – officers Copson, Gibson and Cameron. They proceed to remove whatever is in the cell (torn fabric and the mattress). The respondent continues to be very agitated, saying he wants out of the jail, and denying that he made a threat previously. It is not clear who he is speaking to through the cell door, but he can be heard, on the footage, to say “you’re a dog” and “I hope your fucken family rot in hell you scum” and similar things. He can be seen to be wearing his robe, ripped up, as a sort of pair of pants around his lower half. [103] After clearing the cell, the officers approach him, it seems in order to remove the ripped fabric from him. There is an officer on either side of him, while he continues to argue with and abuse officers on the other side of the cell door. Officer Cameron says the respondent was pulling on the pin which had secured his handcuffs and repeatedly kept trying to turn to him and was swearing at him. Officer Cameron told him to face forward or a restraint would be applied. [104] Officer Gallott says, in his affidavit, that at some stage he heard the respondent make threats towards officer Cameron and other officers, saying words to the effect of “wait until I’m on the outside, I’ll get you and get your family”.57 I have watched the three pieces of footage from this incident two or three times. I am unable to hear the respondent say this (as opposed to what I have set out in paragraph [102] above). In the incident report officer Gallott prepared on the day he records that the respondent became extremely elevated and started to make threats towards staff and their families (exhibit GG-2 to his affidavit). It is possible that officer Gallott heard something during this incident, which is not discernible in the video footage. However, bearing in mind the standard of proof, I find the respondent said words to the effect set out at paragraph [102] above, but not words to the effect of what appears at [21] of Gallott’s affidavit. [105] From this point the incident escalates significantly. When the respondent again tried to turn, officer Cameron applied what he called a “mandibular angle restraint”, which 56 Exhibit 2, footage in relation to incident 291431. 57 Affidavit of Gallott at [21]. -- 41 of 48 -- 42 involves pressing his thumb to the right side of the respondent’s head. At the same time, officer Copson did the same thing on the other side of the respondent. Immediately after this, officer Cameron says the respondent started kicking out at him, landing one blow to his leg. He directed the respondent to stop and, when he did not, he “executed two left knee strikes to his perineal area” (just above the knee). Officer Copson also said this manoeuvre caused the respondent to “kick out at staff”, although he did not see him make connection with an officer. The respondent admits he “kicked out” but denies actually kicking anyone. I do not think anyone could be entirely precise about what happened in the course of this intensely stressful and physical incident. The footage is informative, but not in respect of this particular act. Whether the respondent “kicked out” or “kicked” the officer does not really matter for present purposes. He acknowledges that he was “acting out” and resisting, trying to get the officers away from him. [106] The officers then moved to “stabilise” the respondent on the ground. The ripped material that he is wearing around his waist is removed, and a pair of shorts is left in the cell with him. While this is occurring the respondent is face down, on the ground, with a number of officers involved in trying to control him. Eventually the handcuffs are removed, and the officers execute what they call a “dynamic exit”, leaving the respondent in the cell. [107] There is a third incident on this day. At about 2.25 pm a code blue (medical emergency) was called about the respondent self-harming. Tactical response officers Copson, Cameron and Gibson, together with medical staff, went to the detention unit. Officer Copson says that “after gaining compliance from the respondent, we went into the respondent’s cell”. He saw the respondent had “two superficial scratches on his left forearm”. The respondent was assessed by medical staff and cleared to remain in the detention unit. 12 October 2020 [108] The incident alleged on this date involved Ms Fitz-Gerald, who is the Official Visitor with the Office of the Chief Inspector, within Queensland Corrective Services. As Ms Fitz-Gerald explains, her role as Official Visitor involves interviewing prisoners in relation to any issues or concerns they may have about the prison or prison staff, to determine whether they have a valid complaint, try to resolve complaints “at the Centre level” and, if necessary, direct the prisoner to an appropriate service or organisation to assist them. She is also responsible for conducting welfare checks on prisoners in the Detention and Medical Units. [109] Ms Fitz-Gerald attended the Maryborough CC on 12 October 2020 to undertake her duties. She went to the detention unit to see if any of the prisoners had anything they wished to speak to her about. She spoke to the respondent at his cell in the detention unit. Usually she would speak to prisoners in an interview room, but on this day the room was occupied. So she conducted the interview through the hatch of the respondent’s cell door, by crouching down. There is video footage of the first part of the interaction, because there was a corrective services officer present near Ms Fitz- Gerald, who opened the hatch for her. There was no evidence of who this was, but the footage on exhibit 2 bears the name Gibson (incident 291655). -- 42 of 48 -- 43 [110] Ms Fitz-Gerald says that when the hatch was first opened, she could see that the respondent was not wearing a shirt. She says to him “Mr Currie, would you mind putting some clothes on please”. Ms Fitz-Gerald said the respondent had pants on at this time as she could see the waistband of his pants. He complied and put on the shirt. She then sent the officer away, before starting to talk to the respondent, because her conversations with the prisoners are private. The officer went to the end of the hallway. She described the respondent’s clothing as the “at risk clothing” issued to prisoners – which is a smock and shorts, like men’s baggy pyjamas. [111] I accept Ms Fitz-Gerald’s evidence of what the respondent was wearing when she first saw him. This is clearly established by the CCTV footage from inside the cell, and it can also be seen, in the body-worn camera footage, when the hatch is first opened, that the respondent is sitting on the bed, which is not far from the door, wearing shorts. In the CCTV footage, he can be seen to put a shirt on very shortly after Ms Fitz-Gerald starts speaking to him. [112] Ms Fitz-Gerald says she had to stand up twice to check the safety order paperwork to respond to questions from the respondent. When she crouched down after the second time, to continue speaking to him, she realised that he had removed his shorts, as she could see the skin of both of his legs and his penis. It took her a few seconds to register what she was looking at. She adjusted her position so that she could no longer see him from the waist down and continued the conversation. She felt very uncomfortable and stunned but did not want to acknowledge to the respondent what she had seen in case he was seeking a response to his behaviour. She then reported this behaviour and recorded the incident in an email written on 12 October 2020, as she was asked to do. [113] The respondent said he did not recall this incident. There was CCTV footage from the hallway and inside his cell in evidence, as well as the officer’s body worn camera footage. In the CCTV footage, the respondent can be seen getting up, checking the window of his cell door and then picking something up from the toilet and covering up the camera in his cell with it, at about 10:43:38. This coincides with the first time Ms Fitz-Gerald gets up to check the paperwork, which is about 10.43:28. From then on, nothing can be seen inside the cell, but the footage continues outside the cell. At about 10:44:56 Ms Fitz-Gerald gets up for the second time. Once she returns to the hatch after this, she can be seen to adjust her position after a short time, consistent with her evidence. [114] When asked about this by Dr Aboud, the respondent is reported to have said “This is news to me. It didn’t happen. I remember meeting her, but I never exposed my penis. I suspect she’s a drinking buddy of the officers down the RSL. I never did that.” [115] I accept the evidence of Ms Fitz-Gerald, and find this incident occurred as Ms Fitz- Gerald described it, and that it was a deliberate act on the part of the respondent. I consider that is the only reasonable inference to draw from the fact that he covered up the camera in his cell mere seconds before exposing himself to Ms Fitz-Gerald. 20 November 2020 [116] On 20 November 2020 the respondent was interviewed by Dr Aboud, by video link. He cooperated with this interview. Dr Aboud subsequently prepared a report dated 3 February 2021, parts of which I have referred to above (in relation to what the respondent is reported to have said when Dr Aboud asked him about various incidents). Dr Aboud’s -- 43 of 48 -- 44 evidence was that he quoted in his report the pertinent parts of what the respondent said to him by way of response.58 The respondent said he disagreed in some respects with what Dr Aboud wrote down, but there was very little difference between what the respondent asserts he told Dr Aboud and what Dr Aboud recorded in his report. I have no reason to doubt the accuracy of what Dr Aboud has recorded and proceed on that basis. 10 December 2020 [117] On 10 December 2020 the respondent was interviewed by Dr Harden, by video link. The respondent terminated the interview after 35 minutes. The respondent’s explanation for that was the meeting he had with Dr Aboud before this “really took it out of me” and he felt that no matter what he said to these “psychs” “they’re just going to twist my words around, and they’re always looking for the negative in someone”. Dr Harden prepared a report dated 4 February 2021. 7 January 2021 [118] The incident on this date was witnessed by registered nurse Campion, who was working as part of the Maryborough Prison Health Service at the Maryborough CC on 7 January 2021. She was distributing medication to prisoners, from the officer’s station, which is an elevated counter on the ground floor. She says that at about 4.40 pm, she happened to look up at cell 49, where the respondent was residing. She saw him propped up on his bed, staring at her while masturbating. She was very clear in her evidence that from where she was standing there was a clear line of sight into the respondent’s cell, through the air vent; that she could clearly see his face staring directly at her and clearly saw him masturbating. She did not react, as that would have alerted the other prisoners, but reported it to her supervisor later on. [119] Officer Hodge also gave clear evidence, which I accept, about the fact that there is a direct line of sight into this this particular cell, from the officer’s station, through the air vent. [120] The following day, officer Hodge spoke to the respondent about this incident. There is in evidence video footage of his conversation with the respondent. Officer Hodge gives evidence of a recollection that the respondent said words to the effect that “it was his cell and his bed and he can’t help what time he does it”, and that by “it”, officer Hodge took the respondent to be referring to masturbating. In the video, what can be heard is that officer Hodge says to the respondent “we’ve received another formal complaint about you having inappropriate acts towards a nurse” and that “she’s seen you through the vent doing inappropriate actions towards her direction”. He asks if the respondent has anything to say about it. He advises the respondent that he will be moving cells as it is not appropriate for him to be there. The respondent does say something to the effect that he doesn’t know how come they’re looking through the air vent, and that this is my bed here, in line with, in view of the air vent”. I record that officer Hodge also refers to there having been a previous incident. But as there is no evidence of any previous incident before me, I have disregarded the comments in the video footage to that effect. 58 Transcript 1-20. -- 44 of 48 -- 45 [121] The respondent’s evidence was that he could recall this day (it was his birthday), but denied what he is alleged to have done, and denied also that anyone could see through the air vent, unless they were “pretty close” to it. [122] I accept the evidence of nurse Campion, and of officer Hodge, in terms of the particular visibility from the officers’ station, through the air vent, into the particular cell the respondent was occupying. Nurse Campion’s evidence was that what she described was “unmistakeable”, in terms of the respondent staring directly at her, and I accept her evidence in that regard also. It is fair to say the respondent was in his own cell at the time, but on the basis of the evidence of the nurse, which I accept, I find that there was an element of deliberate conduct on his behalf, directed at the nurse. 9 January 2021 [123] On this day, at about 7.45 am, a code blue was called, for the cell where the respondent was accommodated. The respondent had “alerted to self-harm”. Officer Copson went to the respondent’s cell, with officer Hodge. The respondent is said to have been in an “elevated state”, so much so that he was spoken to through the cell door, rather than by opening it and going in. He was yelling and saying he wanted to get out of the unit, verbally abusing the staff. [124] Another of the officers present was officer Harding. She said the respondent looked at her and called her a “fucking racist and a fucking dog multiple times”, and also said words to the effect that “other prisoners had told him that I say bad things about him”. Officer Harding said at no time has she ever disclosed details about the prisoner or spoken to other prisoners about the respondent. [125] Once it was established that he did not intend to self-harm, the code blue was stood down. This all occurred in about 3 or 4 minutes. [126] A short time later, about 8.15 am, the respondent called again via the intercom from his cell saying he wanted to self-harm. Officers Hodge, Copson and Pennell went to see him again and check on him. He said he had cut himself. Another code blue was called. Officer Pennell said the other prisoners in the unit were directed to go out into the exercise yard. [127] At this time, when the officers went to go into the respondent’s cell, he was compliant with their directions. He had four small superficial cuts on his arm. He was escorted to the medical centre. [128] The respondent’s evidence was that he did say those things to officer Harding, but he did that because when the other prisoners were being moved out of the unit, he could hear them saying “what’s he whinging about now, the sook”, and heard officer Harding respond by saying “he’s feeling suicidal”, with sarcasm in her voice, to which the prisoners responded saying “he’s suicidal, the fucking sook”. As a result of that, the respondent said he “personally attacked” officer Harding when she arrived at his cell door, and insulted her, asking “why do you have to share private and confidential information about my matters, you fucking dog” or words to that effect. [129] Officer Pennell said she did not recall the prisoners complaining about the respondent, nor did she recall officer Harding say “he’s feeling suicidal” to them. In fact, she said -- 45 of 48 -- 46 officer Harding was not there at the start of this second incident although may have arrived later, after the code blue was called. She said it was typical for the prisoners to complain about having to go outside, and that in the course of any given day they had to move prisoners in and out probably 10 times at least and there was nothing specific about moving the prisoners that she could remember on this day as being any different to a normal day. [130] Officer Harding similarly denied that she said anything to the other prisoners, about the respondent feeling suicidal, or the prisoners saying anything. She also said the prisoners were usually agitated any time they are put out into the yard, saying they all have a gripe and a whinge on their way out. [131] As I have already observed, I am not persuaded that the respondent is a credible or reliable witness. For that reason, where their evidence conflicts, I prefer the evidence of officers Harding and Pennell about this incident. The words the respondent is said to have spoken on this day are consistent with the way in which he has spoken to officers on other occasions (of which there is evidence before the court), in particular when in an agitated state, as he was on this occasion. The behaviour on this occasion was insulting and abusive, but not a threat. 3 February 2021 [132] The next incident arises from a letter the respondent wrote, making offensive comments about one of the officers at Maryborough CC. Officer Biggs is an intelligence advisor with QCS. Her role involves monitoring all incoming and outgoing mail relating to prisoners at Maryborough CC. In January 2021, officer Biggs had advised the respondent that an application to send a letter was rejected. She explained the process involved in enabling prisoners to send mail to people. The prisoner fills in a form (form 300) with details of the person(s) they want to send mail to, including their address. QCS then writes to the person, and asks them to confirm, by returning paperwork, that they want to receive mail from the prisoner. Once that is received, their name is put on a register and the prisoner can write to the person. But if a person is not on that register, the mail will not be approved. The form 300 is a State-wide form, not particular to Maryborough CC. If the details of any approved mail recipients are available on the IOMS, that can be accessed by any facility, but if not, a new approval process has to be undertaken. [133] In any event, it was officer Biggs who had signed off on a letter returning mail to the respondent because there was no approval for the recipient. [134] Subsequently, he wrote another letter, which was brought to officer Biggs’ attention. At the end of the letter, there is a “PS” which states “This Fiona Biggs must be a racist or something because it has it in for me. I wonder what the dog looks like”. [135] The respondent’s explanation for this was that he believed officer Biggs (who he had never met and had only seen her name on a letter returning some mail to him) “was cancelling all of my mail going out to my family”. The comment in the letter is consistent, once again, with the pattern of the respondent’s behaviour revealed by the evidence of forming somewhat paranoid thoughts of victimisation and lashing out in an abusive way. -- 46 of 48 -- 47 5 February 2021 [136] On the evening of 5 February 2021, officer Goodwin was working in the Master Control Room, which controls the gates throughout the Maryborough CC. At about 8.55 pm, the respondent contacted the Master Control Room via the intercom, and officer Goodwin answered the call. The respondent expressed thoughts about harming his family and that he was having thoughts of self harm. [137] There is a recording of this call. In it, the respondent can be heard to say “I’m sitting here, just feeling a bit uncomfortable with myself, getting headaches, and lets just say I’m very disturbed at this point in time that I’m thinking about hurting me own family, me own family in a way, because the pressure in jail is just getting to me. I’m actually planning on getting out and I’m trying to find a way to let my family know that this is happening, but because I can’t let them know because the phones out and its hard for me to get phone calls, to help my family understand before its too late. Because if I get out of jail and if I go around there and someone pulls a knife out on me and I turn around and stab them in the neck and kill them… or I went and bought a gun and took it round there and killed… anything could happen… I’m not saying I’m going to do it. But I just think of the worst scenarios, you know, like when a person just snaps and had enough of life, and just says I want to take it out on the people I love… that’s when I believe they need help. And because I can’t ring my family and talk to them about it….”. The officer says there is an officer “down there doing head count” and suggests the respondent talk to them through the door. He also refers to the medication coming around at 11 and that he’ll make sure the supervisor stops in and has a chat. [138] A short time later the respondent calls again and asks if the officer can press play on the DVD “to take his mind off it”. [139] The respondent’s evidence was, in effect, that he was “just angry and not even thinking”, “just saying stupid things”; that when he has these thoughts and feelings he tries to reach out, whether to psychologists, counsellors or supervisors who are around, to address the problem “instead of me sitting in the cell having thoughts like that of my family”. [140] For the respondent it was submitted that the first call was a cry for help, that the respondent was not making threats but trying to communicate that he needed help; and that he later “self regulated” and asked for the DVD to be played. [141] That is the last of the incidents about which evidence was called at the hearing. [142] For completeness, I record that there is in evidence, exhibited to the affidavit of Ms Monson, the notes from the respondent’s offender case file on the integrated offender management system (IOMS). As I read those notes, for the period from 5 February 2021 to 9 July 2021, the respondent has effectively remained in his cell, initially in unit S5 and then moved to unit S4 on 21 May 2021. He is recorded to decline the two hours exercise time he is offered on every occasion. He does not leave his cell (other than, as I read the notes, on a couple of occasions, once to make a phone call and once for a video link with his lawyer). He does not interact with the other prisoners. All interactions with him by officers are required to be recorded with body-worn camera footage (and, according to the notes, if a camera is not available, the officers avoid interacting with him). His conduct and behaviour is regularly said to have been acceptable, although there are some incidents recorded of non-compliance (in particular, covering up the -- 47 of 48 -- 48 window of his cell, and being in the shower when the headcount is being conducted, presenting naked when the officer asks him to show his face). There continue to be some references to the respondent accusing staff and other prisoners of terrorising him, and occasionally acting in an agitated, aggressive or abusive manner. In his evidence before the court on this review hearing the respondent said he has volunteered to be locked in a cell all day because of “conflict issues”. -- 48 of 48 --