For legal aid to be granted for a preliminary or final hearing the following tests must be satisfied:
Documentary requirements
Application received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- A completed and signed Legal Aid Queensland application form.
- Proof of income and assets (refer to the means test).
- A copy of the crown's application and any supporting material under the Dangerous Prisoners (Sexual Offenders) Act 2003.
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with:
- A copy of the crown's application and any supporting material under the Dangerous Prisoners (Sexual Offenders) Act 2003 (if available).
- Proof of income and assets (refer to the means test).
Practitioners must also ensure that the following documents are retained on file:
- A completed and signed Legal Aid Queensland application form.
Interpretation
Initiating applications
The Attorney-General may apply to the Supreme Court for the following orders pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003:
- An order that a prisoner be detained in custody for an indefinite term for control, care or treatment (“continuing detention order”), or
- An order that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order (“supervision order”)
- An order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports (a “risk assessment order”), and
- If the court is satisfied the application may not be finally decided until after the prisoner’s release day: -
- An order that the prisoner’s release from custody be supervised (an “interim supervision order”), or
- An order that the prisoner be detained in custody for the period stated in the order (an “interim detention order”).
Any such application can be made by the Attorney-General during the last six (6) months of the prisoner’s period of imprisonment.
Once an application has been filed, the preliminary hearing must be heard within 28 business days. A copy of the application and any supporting affidavits must be given to the prisoner within two (2) business days after the filing. Copies of any affidavits the prisoner wishes to rely on for the preliminary hearing must be given to the Attorney-General at least three (3) business days before the preliminary hearing.
Preliminary Hearing
If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community without a continuing detention order or a supervision order being made, the court may make a risk assessment order. The court may also make an interim detention order or an interim supervision order, if satisfied the application may not be decided until after the prisoner’s full time release date.
Final hearing
At the final hearing, the court must determine if the prisoner is a serious danger to the community in the absence of a continuing detention or supervision order (Division 3 order). The court must be satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision.
When determining whether a prisoner is a serious danger to the community, the court must have regard to the following:
- Any report produced by the Attorney-General about proposed requirements for the prisoner’s supervised release and the extent to which they can be managed by corrective services officers;
- The reports prepared by the psychiatrists and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
- Any other medical, psychiatric, psychological or other assessment relating to the prisoner;
- Information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
- whether or not there is any pattern of offending behaviour on the part of the prisoner;
- efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
- whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
- the prisoner’s antecedents and criminal history;
- the risk that the prisoner will commit another serious sexual offence if released into the community;
- the need to protect members of the community from that risk;
- any other relevant matter.
If the court is satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 order, the court may make a continuing detention order or a supervision order.
The onus is on the Attorney-General to prove that a prisoner is a serious danger to the community.
Allocation of a solicitor
Representation for dangerous prisoners matters will be provided on an in-house basis unless there is a conflict of interest.
Grant(s) of aid
The grant of aid for preparation, including representation at any preliminary hearing, in relation to a Crown application pursuant to the dangerous prisoners legislation is DP1.
Extension(s) of aid
If the hearing exceeds one day, an extension of aid is available for additional days. The grant of aid is DP1A.
If the matter proceeds to final hearing, an extension of aid is available for this hearing. The grant of aid is DP1B.
If an exceptional circumstances application is made, an extension of aid is available for this application. The grant of aid is DP1C.
The initial grant includes 2 mentions/reviews. If there are more than 2 reviews (additional mentions/reviews), an extension of aid is available for 2 additional mentions/reviews. The grant of aid is DP1D.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).