Kable v Director of Public Prosecutions (NSW) [1996] HCA 24

High Court of Australia Brennan CJ Dawson, Toohey, McHugh, Gaudron and Gummow JJ Kable v Director of Public Prosecutions (NSW) (FC 96/027) [1996] HCA 24

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the New South Wales Court of Appeal and in lieu thereof order:

(a) Appeal to the Court of Appeal allowed with costs.

(b) Set aside the order of Levine J and in lieu thereof order that the application of the respondent be dismissed with costs.

Cur adv vult

The following written judgments were delivered: —

9 September 1996 Brennan CJ.

The Bill for the Community Protection Act 1994 NSW (the Act) was duly passed by the Houses of the Parliament of New South Wales. Assent was given and the Act was proclaimed to come into force on 9 December 1994. Therefore at all material times the Act was on the statute book of the State.

The key provision of the Act is s 5 which reads as follows:

(1) On an application made in accordance with this Act, the Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds:

(a) that the person is more likely than not to commit a serious act of violence; and

(b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

(2) The maximum period to be specified in an order under this section is 6 months.

(3) An order under this section may be made against a person:

(a) whether or not the person is in lawful custody, as a detainee or otherwise; and

(b) whether or not there are grounds on which the person may be held in lawful custody otherwise than as a detainee.

(4) More than one application under this section may be made in relation to the same person.

A "serious act of violence" in s 5(1)(a) is defined in s 4 to mean an act of violence, committed by one person against another, that has a real likelihood of causing death or serious injury to the other person or that involves sexual assault in the nature of certain offences under the Crimes Act 1900 NSW. The reference to "the Court" in s 5(1) is to the Supreme Court of New South Wales [1] the jurisdiction of which under the Act is exercisable by a single Judge (s 24). A detention order may be made subject to such conditions as the Court may determine (s 9(1)). Under the Act proceedings for detention orders are civil proceedings (s 14) determined according to the balance of probabilities (s 15). Only the Director of Public Prosecutions may apply for a preventive detention order under s 5 or an interim detention order under s 7 (s 8).