Latest Round in Attempts to Keep Sex Offender Robert Fardon in Jail

Friday 17 January 2014 @ 11.14 a.m. | Crime

On Wednesday 15 January 2014 the Acting Attorney General for Queensland issued a media statement conceding that while the Queensland Government had attempted everything in its power to keep "sex offender Robert Fardon" (Fardon) in jail it had effectively not achieved that objective and had "run out of options".

"We did everything we could but some of Queensland’s top silks, including the Solicitor-General, all advised we were out of options."

Background

Convicted of numerous sex offences against women and children dating back to the 1960's Fardon has spent most of his adult life in prison and in 2003 he was the first person to be detained indefinitely under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA).

The media statement follows on the latest attempt in the Queensland Court of Criminal Appeal (see Attorney-General (Qld) v Fardon [2013] QCA 365 (6 December 2013)) to have Fardon'd incarceration continued under the controversial Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld) and the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

In that case a trial judge had carried out the annual review required by s 27 of the DPSOA of a "continuing detention order" made against Fardon. The continuing detention order had been made by the Court of Appeal in July 2011 following a successful appeal against an order releasing Fardon on a supervision order.

The trial judge affirmed the decision that Fardon was a "serious danger to the community" in the absence of an order under the DPSOA, rescinded the continuing detention order and ordered that he be released from custody subject to a supervision order.

The Queensland Attorney-General then appealed those orders on the grounds that the decision was unreasonable and that the trial judge erred in various respect. The Court found that the Attorney-General had not identified any error in the trial judge’s approach to the application of the statutory requirements, nor that in any respect were the trial judges findings of fact not properly based on the evidence. The court then also found that the:

". . .decision that an order should be made for Mr Fardon’s release from custody subject to a supervision order was an exercise of discretion properly based on those findings".

Further, not only did the Court uphold the trial judges review of Fardon's sentence but it also indicated that the Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld) sections 3 (which alters the long title of Criminal Law Amendment Act 1945 to alter its coverage) and 6 (which adds new Parts 4 and 4A dealing with the further detention of particular sexual offenders) were constitutionally invalid following the doctrine in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 as restated by Hayne, Crennan, Kiefel and Bell JJ Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 87 ALJR 458:

“The relevant principles have their roots in Chapter III of the Constitution. As Gummow J explained in Fardon, the State courts (and the State Supreme Courts in particular) have a constitutionally mandated position in the Australian legal system. Once the notion is rejected, as it must be, that the Constitution ‘permits of different grades or qualities of justice’, and it is accepted that the State courts have the constitutional position that has been described, it follows that ‘the Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth’ (emphasis added). As Gummow J further pointed out, and as is now the accepted doctrine of the Court, ‘the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system’.”

High Court Challenge Not On

After the Court of Appeal ruled the new laws giving the Government the power to keep some sex offenders behind bars were invalid, the Queensland Attorney General was reported as saying he would seek legal advice on launching an appeal in the High Court. The ABC now reports that the Queensland Government has received advice and that indicates that such an appeal would not be successful. The Acting Attorney-General is quoted as saying:

"We have done more than any other government to keep Robert John Fardon behind bars, but our legal advice is that we just can't win in the High Court, . . .We did everything we could but some of Queensland's top silks, including the Solicitor-General, all advised we were out of options."

Fardon's Current Status

According to the Acting Attorney-General Fardon remains on a 24 hour curfew and "can’t leave his front door without permission", he is only allowed out for essential trips accompanied by an escort and wearing a GPS tracker. The Acting Attorney-General says in his media release:

"We are doing everything possible to ensure the community is protected. . . .  We didn't want him out in the first place, but it’s now a matter of keeping him on a very tight leash and working out ways to ensure other people like him are kept behind bars".

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