Attorney-General for the State of Queensland v Robinson [2010] QSC 261

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Robinson [2010] QSC 261 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v NIGEL PATRICK ROBINSON (Respondent) FILE NO/S: BS 4096 of 2006 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 May 2010 DELIVERED AT: Brisbane HEARING DATE: 20 May 2010 JUDGE: McMurdo J ORDER: 1. The Respondent be released pursuant to s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) pending the final decision of the Court under s 22 of the Act. 2. The Respondent, upon release, be subject to the supervision order made by Daubney J on 15 July 2009, subject to the additional requirement that the Respondent have no contact with the woman the subject of the alleged contraventions. 3. The Respondent undergo examination by Professor Basil James and Dr Michael Beech in accordance with s 11 of the Act. CATCHWORDS: CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – ARREST AND DETENTION – OTHER MATTERS – where the respondent was arrested after a warrant was issued for his arrest under s 20 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) – where the respondent applied under s 21 of the Act to be released pending the court’s final decision under s 22 of the Act – whether exceptional circumstances exist so that, on the balance of probabilities, the respondent’s detention in custody -- 1 of 5 -- 1-2 ORDER 1 10 20 30 40 50 60 pending the final decision is not justified. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 11, 20, 21, 22 Attorney General v Francis [2008] QSC 69 Attorney-General for the State of Queensland v Fisher [2009] QSC 104 COUNSEL: J M Horton for the applicant T Ryan for the respondent SOLICITORS: Crown Solicitor for the applicant Howden Saggers Lawyers for the respondent -- 2 of 5 -- 1-3 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application may by Nigel Patrick Robinson under section 21 of the Dangerous Prisoners (Sexual Offenders) Act 2003. He was arrested last week after the issue of a warrant under section 20 of that Act. The warrant was issued on the basis of two alleged contraventions of the conditions of his supervision order, made on 15 July 2009. One condition was that he comply with any reasonable direction of a Corrective Services Officer. Another condition was that he not be in a public park. The first condition was breached by his meeting a woman whom he was directed not to meet. The second condition was breached by their being together in Southbank Parklands. The circumstances of that direction to him were as follows. Several weeks ago, he met and formed a friendship with a woman who has some intellectual impairment and whose affairs are managed by the Adult Guardian. According to Mr Robinson's evidence, they met subsequently on about 15 occasions. There is no suggestion that there was a sexual relationship or that the woman was harmed. The prisoner says that he made known to the woman at a very early stage the fact of his being subject to the supervision order. The Office of the Adult Guardian took some interest obviously in this matter, but the relationship continued for a while with the knowledge of that office. Then subsequently a direction was made by a Corrective Services Officer that the prisoner not have contact with her. The prisoner says that he was upset by this -- 3 of 5 -- 1-4 ORDER 1 10 20 30 40 50 60 direction and he admits that he then made contact again with her. It is that one further contact which is the subject of the Attorney's allegations that he breached those conditions of his order. The prisoner needs to satisfy the Court on the balance of probabilities that his detention in custody, pending the final decision on the Attorney's application, is not justified because exceptional circumstances exist. The existence or otherwise of such circumstances is a question of fact and the variety of circumstances which might satisfy that criterion is broad as I discussed in Attorney-General -v- Francis [2008] QSC 69; as did Justice Applegarth in Attorney-General for the State of Queensland -v- Fisher [2009] QSC 104. I am persuaded in this case that the circumstances are exceptional. The most important of them is the fact that the non-compliance with the direction of the officer was in relation to one incident in which there was no harm to the woman. And it followed, as I have said, a series of about 15 meetings between the prisoner and the woman which were lawful and which involved no harm to her. Further, it appears that the relationship was not at all disguised by the prisoner, but that he brought it to the attention of relevant authorities. He has not been involved in the use of any illicit substances. The association with this woman, because of her intellectual impairment, gives rise to a particular risk or there might be an apprehension of such a risk, reasonably held by others. It -- 4 of 5 -- 1-5 ORDER 1 10 20 30 40 50 60 must be said, however, that the circumstances of that association are not similar to the circumstances of the offences for which he was imprisoned. The other consideration is that the period of time likely to pass between now and a hearing of the Attorney-Generals' application, is relatively short. And that given the relative seriousness of the breaches of condition which are alleged, it cannot be said that a case for the Attorney, that the prisoner be returned to custody for these contraventions, is especially strong. In the circumstances then, the prisoner has satisfied me according to section 21(4) and there will be an order that he be released pending the final decision on the Attorney's application, but on condition that the prisoner have no contact or not attempt to have contact with the woman concerned. ... It will be further ordered, that the prisoner upon release be subject to the supervision order made by Justice Daubney on 15 July 2009. And that he undergo examination by Profession Basil James and Dr Michael Beech, in accordance with section 11 of the Act. ----- -- 5 of 5 --