Supreme Court of Northern Territory

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Blokland J
• Judgment Date: 16 July 2013
• Neutral Citation: [2013] NTSC 35
• Date: 16 July 2013
• Docket Number: FILE NO: 21328402

[2013] NTSC 35

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Blokland J

FILE NO: 21328402

Between:

Attorney-General of the Northern Territory

Applicant

and

EE

Respondent

Attorney General of Queensland v Watego [2003] QSC 367 ; NZ Conference of Seventh Day Adventist v Registrar of Companies [1997] 1 NZLR 751WA v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71, referred to

Serious Sex Offenders Act ss 9, 18, 24, 25, 30, 63, 91 and 95.

Second reading speech for the Serious Sex Offenders Act — dated 14 February 2013.

Statutory Interpretation — Application by Attorney General for interim detention order or interim supervision order pending final hearing — Preliminary hearing not merely perfunctory — court to determine whether it ‘would’ if allegation proven be satisfied respondent is a ‘serious danger’ to the community — requires assumption of later proof — requires absolute positive conclusion.

Statutory interpretation — interim supervision ordered until final hearing — adequate protection reasonably provided by making supervision order — option of supervision to be provided to Court —

RULING ON PRELIMINARY HEARING

Introduction

1 This is a ruling made under s 25 of theSerious Sex Offenders Act (NT) after concluding a preliminary hearing. The application is brought by the Attorney-General of the Northern Territory under the recently passed Serious Sex Offenders Act (NT), seeking an interim continuing detention order or an interim supervision order in relation to the respondent pursuant to s 30 of the Act. The substantive relief sought, that the respondent be subject to a final continuing detention order or a supervision order under the Act, is not a matter for determination at this hearing.

2 The procedure under the Act requires essentially a two stage process. First, this Court must decide at apreliminary hearing pursuant to s 25 of the Act whether the matters alleged in the application would, if proved, satisfy the Court that a respondent is a serious danger to the community as defined by the Act. If the Court decides that it would not be satisfied, it must dismiss the application pursuant to s 25(3) of the Act.

3 TheSerious Sex Offenders Act (NT) commenced on 1 July 2013. This application was filed on the same day. The principal affidavit in support of the application was affirmed prior to the commencement of the Act, on 28 June 2013. The respondent was served on 1 July 2013 and, I understand the respondent's lawyers were notified the following day. Under s 24 of the Act the Supreme Court must set a date for a preliminary hearing not more than 28 days after the application is filed. As the respondent is due for release from prison on 18 July 2013, the preliminary hearing was heard expeditiously within 12 days of filing, however, this has not been an ideal environment in which to ensure all relevant issues touching on new and fundamentally important legislation have been dealt with comprehensively. Nevertheless, I commend the efforts of the representatives of both parties to put forward the material and arguments relevant to the application and the defence of it at this first preliminary hearing in somewhat constrained circumstances.

4 It may be noted that a lack of procedural fairness due to inadequate time being given to a respondent's legal representative to prepare for apreliminary hearing has been held under the comparable Queensland legislation to provide grounds to dismiss an application.1 Senior Counsel for the respondent does not go so far as to press for dismissal on this basis but rather emphasises that careful consideration must be given to the nature of the enquiry when issues of natural justice arise.

Section 25 of the Serious Sex Offenders Act

5 Section 25 provides as follows:

1. (1) At the preliminary hearing the Supreme Court must decide whether the matters alleged in the application would, if proved, satisfy the Court that the qualifying offender is a serious danger to the community.

2. (2) If the Court decides that it would be satisfied, it must:

   1. (a) Set a date for the hearing of the application; and

   2. (b) Make a medical assessment order in relation to the offender naming two medical experts.

3. (3) If the Court decides that it would not be satisfied, it must dismiss the application.

6 Although the proceeding is a ‘preliminary hearing’, not productive of a final order, it is a significant procedure capable of fundamentally altering, by way of extending the amount of time served in custody (in detention) by a respondent beyond the release date set by the sentencing court. A positive

finding at a preliminary hearing means a respondent will become subject to further hearings and their custody status challenged in the interim, or they may be susceptible to supervision. In relation to this particular respondent; the legislation was not in force at the time of his offending, nor when he was sentenced. There is no doubt the Act applies to him but his case illustrates the fundamental impact of the Act on strongly held legal principles such as the rule against double jeopardy and certainty of sentences passed according to law. These principles are well recognised in the Second Reading Speech when the Bill for the Act was introduced by the Attorney-General.2

7 On the other hand, the Act requires the Court to examine whether certain persons are a serious danger to the community, such that the community needs to be protected from an unacceptable risk of the person committing a serious sex offence in the future. Four other Australian jurisdictions now have similar schemes, although some caution must be applied to resist over-reliance on interstate interpretations given the differences between the broadly comparable legislation.

8 The preliminary hearing under s 25 of the Act is not merely perfunctory. As recognised in the Attorney-General's second reading speech:

‘The threshold test is also an important aspect of the legislation as it defines the offenders who may potentially be the subject of an application by the Attorney-General. As I have said, this legislation is not aimed at all sex offenders, only those offenders who are likely to commit further sexual offences at the most serious end of the scale. In general terms, the threshold test in the bill is that it only

captures prisoners who have been convicted of an offence of a sexual nature which is punishable by seven years or more of imprisonment.’

9 The rules of interpretation of statutes that fundamentally affect liberty are clear. Strict interpretation is required. The clear words of the statute must be given full effect; but any ambiguity is resolved in favour of the liberty of the subject. The statute is not to be read in a way that expands its reach beyond that which is produced by a strict reading.

10 It is clear the respondent is a ‘qualifying offender’ as defined in s 22 of the Act; he has been convicted of a ‘serious sex offence’ and is under sentence of imprisonment for two counts against s 132(2)(e) and (4) of the Criminal Code, an offence listed in Schedule 1. The two offences he was convicted of were for intentionally exposing a child under 16 years to an indecent film; aggravated by the circumstance that the victims were under the age of 10 years.

11 The matters alleged in the application are that there is a high or significant risk that the respondent will commit a serious sexual offence unless he remains in custody or is made subject to a supervision order. In substance the applicant relies on the sentencing remarks of his Honour the Chief Justice when sentencing the respondent on 29 November 2012 and the report of the counselling psychologist Mr Phillip Ward, also relied on by his Honour when sentencing the respondent.

12 Section 25 requires ‘matters’ to be considered by the Court. Given the context of the type of material that would be expected in an application of this kind, in my view a broad range of material is anticipated; both evidence in the strict sense and other cogent material such as sentencing remarks, criminal history, reports on efforts at and results of rehabilitation and associated reports. The Act clearly anticipates there may be affidavits filed by a respondent who is the subject of a preliminary hearing (s 91). None have been filed in this matter; in a practical sense there was no real possibility to do so given the time constraints. The structure of the Act points to the necessity of a genuine evaluation of the available material at the time of the preliminary hearing. The Court is required to consider whether it would be satisfied that the person is a serious danger to the community based on the material provided at the preliminary hearing with the assumption that the allegations will later be proven.

13 By use of the word ‘would’, it is common ground, (or almost so), that what is required is a positive absolute conclusion that the order ‘would’ be made on the balance of probabilities (s 95(2)).3

14 A positive finding can only be made on the ground that it will be proven that a person is a ‘serious danger to the community’. A person is a ‘serious danger to the community’ if there is an ‘unacceptable risk’ that he will commit a serious sex offence unless he is in custody or subject to a supervision order. An unacceptable risk has been held to be ‘a real risk of

substance, not merely a remote...