Attorney-General for the State of Queensland v Currie [2021] QSC 104 (2021) 7 QR 524; (2021) 289 A Crim R 332

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Currie [2021] QSC 104 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JOEL GEORGE CURRIE (respondent) FILE NO/S: BS No 10864 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 21 May 2021 DELIVERED AT: Brisbane HEARING DATE: 30 April 2021. Orders made on 30 April 2021. JUDGE: Davis J ORDERS: 1. The applicant shall file and serve any affidavits sought to be relied upon at the hearing by 4 June 2021. 2. The respondent shall file and serve, by 6 July 2021: (a) any admissions which he chooses to make to any allegation raised in the applicant’s material; (b) any affidavit of any witness other than himself upon which he seeks to rely. 3. The respondent may, at any time in the proceedings, file and serve an affidavit sworn by him. 4. If the respondent wishes to give evidence in defence of the application and he has not, by the close of the applicant’s evidence at the trial of the application, filed and served an affidavit of his evidence, he shall do so forthwith upon close of the applicant’s case. 5. The matter is listed for mention on 14 July 2021. 6. Liberty to apply. CATCHWORDS: CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL -- 1 of 19 -- 2 OFFENDER - GENERALLY - where a continuing detention order had been made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) - where the continuing detention order came to be reviewed - where on the review the Attorney-General alleged that while in prison the respondent had committed acts which constituted criminal offences or rendered him liable to disciplinary action under the Corrective Services Act 2006 - whether in such proceedings the respondent ought to be subject to case management orders that he swear affidavits in his defence PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DIRECTIONS - where the Attorney-General sought orders requiring the respondent to swear an affidavit in proceedings to review a continuing detention order made under the DPSOA - whether privilege against self-incrimination arose - whether privilege against self-exposure to a civil penalty arose - whether proceedings for review of a continuing detention order made under the DPSOA are proceedings for a penalty - whether to fashion directions to preserve any privilege Australian Securities Act 1989 Corporations Act 2001 Corrective Services Act 2006, Part 1, Chapter 3, s 113 Criminal Code, s 245, s 246, s 335 Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 5, s 8, s 13, s 16, s 16C, s 19, s 19A, s 22, s 30 16, 16C, 19, 19A, 21, 22 Anderson & Ors v Australian Securities and Investments Commission [2013] 2 Qd R 401, cited Attorney-General for the State of Queensland v Currie [2016] QSC 48, related Attorney-General for the State of Queensland v Currie [2020] QSC 128, related Attorney-General for the State of Queensland v Phineasa [2013] 1 Qd R 305, cited Australian Securities Commission v Kippe (1996) 67 FCR 499, cited Australian Securities and Investments Commission v Mining Projects Group Ltd & Ors (2007) 164 FCR 32, followed Chardon v Bradley [2017] QCA 314, cited Evans v Staunton [1958] Qd R 96, cited Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, followed MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612, followed Microsoft Corporation & Ors v CX Computer Pty Ltd & Ors (2002) 116 FCR 372, cited Nugent v Commissioner of Police (Qld) (2016) 261 A Crim R 383, cited -- 2 of 19 -- 3 One.Tel (in liq) v Rich (2005) 53 ACSR 623, cited Police Service Board v Morris (1985) 156 CLR 397, cited Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited QC Resource Investments Pty Ltd (in liq) v Mulligan [2016] FCA 813, cited Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation & Ors (1979) 42 FLR 204, cited Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, followed Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547, cited Sorby v Commonwealth (1983) 152 CLR 281, cited Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279, cited X7 v Australian Crime Commission (2013) 248 CLR 92, cited COUNSEL: J Tate for the applicant J Fenton for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Ashkan Tai for the respondent [1] Joel George Currie is the subject of a continuing detention order (CDO) under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). An application has been made by the Attorney-General to review the CDO and the Attorney-General sought directions for the case to be managed. Issues arose as to Mr Currie’s right to maintain privilege against self-incrimination (incrimination privilege) and the privilege against self-exposure to a civil penalty (penalty privilege) and how the preservation of those rights should be accommodated within the directions. [2] On 30 April 2021, I made the following orders: “1. The applicant shall file and serve any affidavits sought to be relied upon at the hearing by 4 June 2021. 2. The respondent shall file and serve, by 6 July 2021: (a) any admissions which he chooses to make to any allegation raised in the applicant’s material; (b) any affidavit of any witness other than himself upon which he seeks to rely. 3. The respondent may, at any time in the proceedings, file and serve an affidavit sworn by him. -- 3 of 19 -- 4 4. If the respondent wishes to give evidence in defence of the application and he has not, by the close of the applicant’s evidence at the trial of the application, filed and served an affidavit of his evidence, he shall do so forthwith upon close of the applicant’s case. 5. The matter is listed for mention on 14 July 2021. 6. Liberty to apply.” Background [3] Mr Currie is an indigenous man who was born on 7 January 1984. He is presently 47 years of age. [4] Mr Currie has a serious criminal history. Most significantly, he was sentenced to eight years imprisonment as a result of an incident where he broke into a home, very seriously sexually assaulted a 14 year old girl and inflicted serious violence upon her. The circumstances of that offending are explained in Attorney-General for the State of Queensland v Currie.1 [5] An application was, in due course, made by the Attorney-General for orders made under the DPSOA2 and on 26 March 2016, Byrne SJA made a CDO.3 [6] The CDO has been reviewed pursuant to Part 3 of the DPSOA on four previous occasions. This is the fifth review. I heard and determined the fourth review in May 2020.4 In the fourth review evidence was before me from psychiatrists Drs Sundin, Aboud and Harden. Mr Nick Smith, a clinical psychologist who was experienced in treating sex offenders, also provided a report. [7] All three psychiatrists accepted that Mr Smith was an appropriate clinician to provide treatment and that the treatment provided by Mr Smith was appropriate. In his report, Mr Smith said this: “16. Treatment Focus and Outcomes 17. Mr Currie has shown definite improvement over the course of our sessions, with improved affective stability and, particularly in our appointments during 2020, a greater level of reflection and thoughtfulness. His engagement has also improved steadily and he has shown a greater capacity to engage in our 1 [2020] QSC 128. 2 Sections 5, 8 and 13. 3 Section 13(5)(a); Attorney-General for the State of Queensland v Currie [2016] QSC 48. 4 Attorney-General for the State of Queensland v Currie [2020] QSC 128. -- 4 of 19 -- 5 appointments in a meaningful way, although he continues to downplay his own need for treatment. Mr Currie identifies positive goals and seemingly pro-social motivations such as helping his family, as well as wanting to stay out of prison; however, it is unclear as to how much insight into his own risk for re-offending he currently has. 18. Mr Currie identifies very strongly as being a victim of childhood abuse himself, and presents as quite ambivalent in how he feels about himself having become a perpetrator; at times expressing distress and disgust with himself, and at other times claiming that his own abuse is an ‘excuse’ for his offending. It appears that Mr Currie’s instability is due to a combination of poor emotional regulation and obsessive rumination on grievances that he perceives as real and justified; however, in regard to his mental health, he has also shown increasing awareness that he needs assistance and treatment in order to function better. 19. Summary 20. Mr Currie is a 36-year-old, single, Indigenous man, currently detained in custody under the Dangerous Prisoners (Sexual Offenders) Act 2003. He has a history of multiple sentences for sexual offending, in 1998, 2004, 2006 and 2009; as well as an extensive history of violent offending, including assaults against Police and Corrective Services Officers . Mr Currie has been subject to a Continuing Detention Order since 11 March 2016 and is hoping to be released on a Supervision Order following his next Court appearance. 21. Mr Currie has been assessed multiple times as being at a High risk for sexual reoffending, as well as showing prominent Psychopathic personality traits. During our early appointments he also displayed emotional instability, although this appeared to improve over the course of our sessions. Mr Currie presents with prominent obsessive traits, as seen in his extensive list- making, and developed ideas for clothing and films. It is likely that, combined with numerous grievances against the criminal justice system, he ruminates extensively on feelings of victimhood and subsequently develops overvalued ideas of persecution and grandiosity in response to a situation where he feels powerless. 22. If Mr Currie is released on a Supervision Order, then I am happy to continue seeing him for the purposes of treatment and assessment of ongoing risk. I would also recommend that he be assessed by a Psychiatrist to determine if pharmacological treatment may assist his mood and behavioural stability”5 5 Report of Mr Smith dated 25 March 2020, pages 3-4. -- 5 of 19 -- 6 [8] A central question during the fourth review on the assessment of risk was the effectiveness of Mr Smith’s treatment if Mr Currie was living in the community. All three psychiatrists considered that issue. I considered that evidence and made findings as follows: “[39] 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. [40] 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. [41] 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 treatment and the respondent’s stability, the incident on 7 April 2020 should not be considered. [42] 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.” (emphasis added) [9] Ultimately, I concluded this: “[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 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.” -- 6 of 19 -- 7 And later: “[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.” (emphasis added) [10] The expert medical evidence at the fourth review of the CDO squarely raised as a likely issue on the fifth review questions about Mr Currie’s behaviour in prison over the last 12 months and the relevance of that behaviour to questions of risk if released on supervision. [11] The Attorney-General alleges that Mr Currie has been involved in numerous incidents in prison which are relevant to risk. In other words, he has not remained incident free for the period of time which the psychiatrists opined would be necessary to confidently conclude that a real change in Mr Currie had consolidated. Mr Currie has discussed some of those incidents with Dr Aboud. A schedule identifying the various incidents has been produced. [12] The schedule of incidents is as follows: “1. 20 May 2020 - Threats Against Staff - Incident 282709 - Discussed with Dr Aboud 2. 3 June 2020 - Prohibited Article - Incident 283535 - Discussed with Dr Aboud 3. 7 June 2020 - Threats Against Staff - Incident 283736 - Discussed with Dr Aboud 4. 18 June 2020 - Medical Emergency - Incident 284430 - Discussed with Dr Aboud 5. 19 June 2020 - Prohibited Article - Incident 284461 - Discussed with Dr Aboud 6. 20 June 2020 - Threats Against Staff - Incident 284497 - Discussed with Dr Aboud 7. 20 June 2020 - Threats Against Staff - Incident 284537 - Discussed with Dr Aboud 8. 6 July 2020 - Offensive Behaviour - Incident 285520 - Discussed with Dr Aboud 9. 7 July 2020 - Threats Against Staff - Incident 285588 - Discussed with Dr Aboud -- 7 of 19 -- 8 10. 13 July 2020 - Self-Harm - Incident 285952 - Discussed with Dr Aboud 11. August 2020 - Offensive Behaviour - Incident 287699- Discussed with Dr Aboud 12. 10 August 2020 - Offensive Behaviour - Incident 287716 - Discussed with Dr Aboud 13. 8 September 2020 - Indecent Acts:- On Staff - Incident 289341 - Discussed with Dr Aboud 14. 19 September 2020 - Major Security Incidents - Incident 290075 - Discussed with Dr Aboud 15. 20 September 2020 - Damage - Incident 290098 - Discussed with Dr Aboud 16. 8 October 2020 - Threats Against Staff - Incident 291327 - Breach Proceedings 17418198 - Discussed with Dr Aboud 17. 8 October 2020 - Self-Harm - Incident 291373 - Discussed with Dr Aboud 18. 9 October 2020 - Self-Harm - Incident 291436 - Discussed with Dr Aboud 19. 9 October 2020 - Using abusive, indecent, insulting, obscene, offensive or threatening language in someone else’s presence - Breach J7358036 20. 9 October 2020 - Acting in a way contrary to the security or good order of a corrective services facility-Breach 17358466 - Respondent pleaded Guilty at Breach Hearing 21. 12 October 2020 - Indecent Acts: On Staff - Incident 291655 - Discussed with Dr Aboud 22. 7 January 2021 - Indecent Acts: On Staff - Incident 297984 23. 9 January 2021 - Offensive Behaviour - Incident 298040 - Respondent Pleaded Guilty at Breach Hearing - Breach 17683528 24. 9 January 2021 - Self-Harm - Incident 298048 25. 28 January 2021 - Offensive Behaviour - Incident 299477 26. 3 February 2021 - Offensive Behaviour -·Incident 299793 27. 5 February 2021 - Other: Specify Nature - Incident 300146 28. 18 February 2021 - Using abusive, indecent, insulting, obscene, offensive or threatening language in someone else’ s presence - Breach 17812002” [13] The Attorney-General estimates that if all the various incidents must be strictly proved, she will have to call approximately 40 witnesses. However, the Attorney- -- 8 of 19 -- 9 General supposed it might be that Mr Currie does not contest that some particular incident occurred. She sought directions that Mr Currie be ordered to file and serve a response to the incidents in the schedule and to swear an affidavit. Those directions were refused in favour of the making of those orders set out at paragraph [2] of these reasons. Statutory provisions [14] The objects of the DPSOA are as stated in s 3 as follows: “3 Objects of this Act The objects of this Act are— (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [15] The “particular class of prisoner” referred to in s 3, are those who have committed “a serious sexual offence” and are serving a term of imprisonment.6 The term “serious sexual offence” is defined as: “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against a child; or (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”7 [16] A scheme of preventative detention and supervision of the particular class of prisoner is then established. [17] Section 13 is a pivotal section of the DPSOA. It provides, relevantly here: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is 6 Sections 5 and 8. 7 See generally Attorney-General for the State of Queensland v Phineasa [2013] 1 Qd R 305 at [38], followed in Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279. -- 9 of 19 -- 10 a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. … (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(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. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [18] Sections 13(1) and (2) operate together so that if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or released -- 10 of 19 -- 11 from custody without an order, then the prisoner “is a serious danger to the community in the absence of a [order]”.8 That fact (which I will call “the jurisdictional fact”) must be proved before the discretion to make orders pursuant to s 13(5) arises. That subsection provides for the making of a continuing detention order9 or a supervision order. Section 13(6) provides that in exercising the jurisdiction under s 13(5), “the paramount consideration is to be the need to ensure adequate protection of the community”. [19] Where, as in Mr Currie’s case, a CDO has been made, that CDO must be reviewed under Part 3.10 The review hearing is determined pursuant to s 30 which is in these terms: “30 Review hearing (1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, the court may affirm the decision only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to affirm the decision. (3) If the court affirms the decision, the court may order that the prisoner— (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. (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— 8 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [6], [34], [59]-[60], [97]. 9 Section 13(5)(a). 10 See s 27. -- 11 of 19 -- 12 (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. (6) In this section— required matters means all of the following— (a) the matters mentioned in section 13 (4); (b) any report produced under section 28A.” [20] Section 30 mirrors s 13. Before orders can be made under s 30(3), the jurisdictional fact must be proved as at the date of the review.11 In other words, the jurisdictional fact having been proved in the proceedings for orders under s 13, it must be proved again on the review of the CDO. Privilege [21] The law recognises, relevantly here, two distinct but related privileges, namely: 1. privilege against self-incrimination, which I have called “incrimination privilege”; 2. privilege against exposure to civil penalty, which I have called “penalty privilege”.12 [22] Incrimination privilege arises where the giving of answers or the production of documents would “tend to expose” the person claiming privilege to civil sanction.13 As explained in Sorby v The Commonwealth,14 “… the privilege protects the witness not only from incriminating himself directly from a compulsory process, but also 11 Section 30(1). 12 See cases such as Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 336, 345 and 350, and Sorby v Commonwealth (1983) 152 CLR 281, Police Service Board v Morris (1985) 156 CLR 397, Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, X7 v Australian Crime Commission (2013) 248 CLR 92, all discussed in Nugent v Commissioner of Police (Qld) (2016) 261 A Crim R 383. 13 Evans v Staunton [1958] Qd R 96 at 110, Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547 at 647 followed in Chardon v Bradley [2017] QCA 314. 14 (1983) 152 CLR 281. -- 12 of 19 -- 13 from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character”.15 [23] There are many cases which have considered the way in which the risk of exposure should be assessed.16 However, here that is not an issue. Incidents 1, 3, 6, 7, 9, and 16 all no doubt constitute, if proved, assaults against prison staff.17 The other incidents most probably constitute discrete criminal offences but at least constitute a breach of prison discipline for which Mr Currie is exposed to a penalty.18 [24] That the conduct alleged against Mr Currie, if proved, may expose him to either criminal prosecution or disciplinary sanction is sufficient to give rise to considerations as to how the two privileges should be protected. Another possible basis arises, in that the review proceedings under the DPSOA themselves may be a process for the imposition of a civil penalty. If so, then it is not necessary to consider whether it is likely that statements by Mr Currie will tend to prove any one or more of the incidents alleged in the schedule. The exposure to the relief sought on the review of the CDO will suffice.19 [25] The question which then arises is whether the review proceedings are a proceeding for a penalty. [26] As already observed, the onus is upon the Attorney-General when seeking orders under s 13 to prove what I have defined as the jurisdictional fact. She must prove that fact by “acceptable cogent evidence” and “to a high degree of probability”.20 Upon a review under Part 3, the onus falls back upon the Attorney-General to again prove the jurisdictional fact21 to the same degree of probability and with evidence of the 15 At 310. 16 Microsoft Corporation & Ors v CX Computer Pty Ltd & Ors (2002) 116 FCR 372 and Chardon v Bradley [2017] QCA 314. 17 Criminal Code, ss 245, 246 and 335 18 Corrective Services Act 2006, Part 1 of Chapter 3, s 113. 19 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation & Ors (1979) 42 FLR 204 at 207-208, One.Tel (in liq) v Rich (2005) 53 ACSR 623, QC Resource Investments Pty Ltd (in liq) v Mulligan [2016] FCA 813, Anderson & Ors v Australian Securities and Investments Commission [2013] 2 Qd R 401 at [17]-[22]. 20 Section 13(3). 21 Section 30(1). -- 13 of 19 -- 14 same quality.22 Unlike in other applications under the DPSOA,23 Mr Currie need prove nothing. [27] Once the Attorney-General proves the jurisdictional fact, adverse consequences may flow for Mr Currie. As already observed, he may remain the subject of a CDO or he may be released only on the basis of compliance with a supervision order. [28] By s 3 and by other provisions of the DPSOA, it is made clear that the making of orders under ss 13 or 30 are not motivated by a retributive purpose. The purpose is not to punish but to protect the community and to treat and to rehabilitate the person the subject of the proceeding.24 [29] In Fardon v Attorney-General for the State of Queensland,25 a constitutional challenge was unsuccessfully mounted against the DPSOA. One argument was that the court, exercising the jurisdiction under the DPSOA, inflicted punishment on a prisoner by either ordering his continued detention or by requiring that he be released only subject to a supervision order. It is unnecessary to examine how that was said to affect the validity of the DPSOA. Relevantly here though, Gummow J observed: “74 It will be necessary to return to that latter submission. However, one point should be made now. It is accepted that the common law value expressed by the term ‘double jeopardy’ applies not only to determination of guilt or innocence, but also to the quantification of punishment. However, the making of a continuing detention order with effect after expiry of the term for which the appellant was sentenced in 1989 did not punish him twice, or increase his punishment for the offences of which he had been convicted. The Act operated by reference to the appellant’s status deriving from that conviction, but then set up its own normative structure. It did not implicate the common law principle in the same way as, for example, the conferral by statute of a right in the prosecution to appeal against sentence.”26 (emphasis added)27 [30] In the same case, Callinan and Heydon JJ observed: “215 To determine whether detention is punitive, the question, whether the impugned law provides for detention as punishment 22 Section 30(2). 23 See s 22(7) for instance. 24 See ss 13, 16, 16C, 19, 19A, 21, 22 and 30. 25 (2004) 223 CLR 575. 26 See also [82] and [118]. 27 Citations omitted. -- 14 of 19 -- 15 or for some legitimate non-punitive purpose, has to be answered. As Gummow J said in Kruger v The Commonwealth: ‘The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed.’ (Footnotes omitted.) 216 Several features of the Act indicate that the purpose of the detention in question is to protect the community and not to punish. Its objects are stated to be to ensure protection of the community and to facilitate rehabilitation (s 3(a)). The focus of the inquiry in determining whether to make an order under s 8 or s 13 is on whether the prisoner is a serious danger, or an unacceptable risk to the community. Annual reviews of continuing detention orders are obligatory (s 27). 217 In our opinion, the Act, as the respondent submits, is intended to protect the community from predatory sexual offenders. It is a protective law authorising involuntary detention in the interests of public safety. Its proper characterisation is as a protective rather than a punitive enactment. It is not unique in this respect. Other categories of non-punitive, involuntary detention include: by reason of mental infirmity; public safety concerning chemical, biological and radiological emergencies; migration; indefinite sentencing; contagious diseases and drug treatment. This is not to say however that this Court should not be vigilant in ensuring that the occasions for non-punitive detention are not abused or extended for illegitimate purposes.”28 [31] Even though provisions may have a legitimate non-punitive object, exposure to the exercise of the discretion created by the provisions may attract the penalty privilege. [32] In Rich v Australian Securities and Investments Commission,29 directors of a company in liquidation faced proceedings brought by ASIC under the Corporations Act 2001 for orders that compensation be paid to the company and that the directors be disqualified from managing a corporation for a period of time. The directors objected to making discovery of documents by verified list and claimed that penalty privilege meant that they ought not be ordered to do so. ASIC pressed for disclosure 28 Citations omitted. 29 (2004) 220 CLR 129. -- 15 of 19 -- 16 and relied on a decision of the Full Federal Court in Australian Securities Commission v Kippe.30 [33] The question in Kippe was whether answers given under an examination of directors conducted under s 19 of the Australian Securities Act 1989 were admissible in proceedings brought against the person for orders banning him from certain activity. That question was answered upon determination of whether the proceedings for a banning order were “a proceeding for the imposition of a penalty”. The Full Court held that the relevant inquiry was to identify the purpose of the proceeding. It was then held “Although a banning order has the consequence of excluding an individual from acting as a representative of a dealer or investment adviser, the making of such an order is not designed to punish or impose a penalty on that person for an offence or contravention of any norm of conduct”.31 On that basis, it was concluded that the proceedings were not “a proceeding for the imposition of a penalty”. [34] In Rich v Australian Securities and Investments Commission, Kippe was overruled. It was held that the proceedings should be characterised not by their purpose but by their effect. In the joint judgment,32 it was held: “35 That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from an a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable. To assume mutual exclusivity of the categories is to fall into the same kind of error as was identified in the constitutional context in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd. Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears each of those characters. Moreover, as Hayne J emphasised in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd, those who seek the ‘essential character’ of statutory provisions do not proffer explanations of that process of distillation. 30 (1996) 67 FCR 499. 31 At 508. 32 Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, McHugh J agreeing with separate reasons and Kirby J dissenting. -- 16 of 19 -- 17 36 It was not suggested, and could not seriously be suggested, that directors, alternate directors and company secretaries do not hold offices to which the privileges against forfeiture and penalties may apply. Rather, the contention of the Commission was that discussed above, namely that the relevant proceedings were protective rather than penal. 37 If a disqualification order is made, the person against whom the order is made ceases to be a director, alternate director, or a secretary of a company (s 206A(2)), unless given permission under s 206F or s 206G of the 2001 Act to manage the corporation concerned. The order for disqualification thus causes the person against whom it is made to forfeit any office then held in a corporation and forbids that person from holding office in a corporation for the duration of the disqualification order. Those consequences, whether taken separately or in combination, when inflicted on account of a defendant’s wrongdoing, are penalties. That the penalty is not exacted in the form of a money payment does not deny that conclusion. As the authorities referred to earlier in these reasons reveal, equity’s concern with penalties was never confined to pecuniary penalties. If exposure to loss of office or exposure to dismissal from a police force is exposure to penalty, exposure to a disqualification order is exposure to a penalty. 38 The company cases referred to earlier, as cases concerning how an appropriate period of disqualification should be set, rightly focused upon why the orders sought might be made and what purposes might be achieved by their making. To that stream of authority Kippe stands as an exception. It concerned a different question. In Kippe, the question was whether statements made in an examination under s 19 of the Australian Securities Commission Act 1989 (Cth) were admissible in evidence in proceedings before the Administrative Appeals Tribunal in which banning orders were sought under ss 829 and 830 of the Corporations Law. Section 68(3) of the Australian Securities Commission Act provided that the statements were not admissible in ‘a proceeding for the imposition of a penalty’. The Full Court of the Federal Court held that a proceeding which might result in a banning order was to be characterised as ‘“protective” in purpose and not as one for the imposition of a penalty’. For the reasons given earlier, that conclusion was wrong. Kippe should be overruled.” (emphasis added)33 [35] Unlike sanctions such as a banning order considered in Rich, proceedings under Part 3 are not orders made “on account of …wrongdoing”. Rather, as Gummow J 33 Citations omitted. -- 17 of 19 -- 18 explained, orders under the DPSOA are imposed “by reference to the [prisoner’s] status deriving from that conviction”.34 [36] In my view though, the deprivation of liberty of a convicted sex offender based upon proof of the fact that the offender is an unacceptable risk of committing a serious sexual offence if released, does penalise the offender in the sense required to enliven the privilege. [37] While proceedings under ss 13 and 30 of the DPSOA may be protective of the public, their result is adverse to Mr Currie. Relevantly for the purposes of the consideration of the privilege, the proceedings are ones for the imposition of a penalty. How to protect the privilege [38] It is necessary to fashion orders to protect the rights which arise as a result of the two privileges. However, any orders should go no further than necessary to achieve that aim.35 [39] In Australian Securities and Investments Commission v Mining Projects Group Ltd & Ors,36 Finkelstein J considered what orders ought to be made where a privilege was engaged. While the privilege arises for the benefit of the defendant, questions of fairness arose if the defendant wished to raise a positive case as the defendant would, at the close of the plaintiff’s case at trial, be put to an election as to whether to maintain the privilege or raise a positive case and give evidence. His Honour therefore ordered that the defendant was not required to plead to the statement of claim but if he elected to waive privilege, a defence ought to be filed at that point. [40] Here, the matter is probably less complicated. There are no pleadings. As already observed, the onus is upon the Attorney-General to prove the jurisdictional fact. In the course of that, she intends to prove the incidents which have been particularised. Probably, any positive case coming from Mr Currie will just be a denial of the incidents or some explanation justifying his conduct. That could hardly take the Attorney-General by surprise. 34 Although proceedings under s 22 of the DPSOA do seek orders consequent upon wrongdoing, namely the breach of a supervision order. 35 MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612 at [10]-[12], [54], [71]-[72], [74], [77]. 36 (2007) 164 FCR 32. -- 18 of 19 -- 19 [41] However, the proceedings are ones in the civil jurisdiction. They are usually conducted on affidavit. The privileges will not be compromised if Mr Currie is ordered to deliver an affidavit of his evidence in chief before he gives evidence (if that is his election). [42] For those reasons, the orders made were, in my view, the appropriate ones. -- 19 of 19 --