State of New South Wales v Williams

1. [1]

   On 7 July 2021. the State of New South Wales (“the State”) commenced proceedings against Gordon Williams (“the defendant”), claiming, by way of final relief, an order pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) that he be subject to an Extended Supervision Order (“ESO”) for a period of five years.

2. [2]

   The State sought interlocutory relief which included the appointment of two suitably qualified experts pursuant to s 7(4) of the Act to examine the defendant and report to the Court. As well, the State sought the imposition of an Interim Supervision Order (“ISO”) for 28 days commencing on 14 September 2021.

3. [3]

   This judgment deals only with the making of those interlocutory orders.

4. [4]

   In light of the material tendered by the State and having regard to the attitude of the defendant by his counsel at the hearing of the interlocutory proceedings, I am satisfied for the following reasons that the orders sought by the State should be made.

Relevant Legal Test

1. [5]

   The application I am dealing with is for an ISO. In such an application the Court is not engaged in the task of weighing up the material contained in the evidence, or else predicting the ultimate result of the State's substantive application. Rather, I need to be satisfied that the facts and matters contained within the documentation provided to the Court by the State, would, if proved, justify the making of an ISO. This is a test analogous to that which formerly applied to the determination of whether a prima facie case existed sufficient to justify the committal of a defendant to stand trial: see Attorney General for New South Wales v Kapeen bht Jenifer Thompson (Preliminary) [2018] NSWSC 619 at [16]; Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [38]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

2. [6]

   This test is not a stringent one: see State of New South Wales v Lynn [2013] NSWSC 1147 at [17]–[18]. It is also appropriate on this application to have regard to the objects of the Act to give weight to risk avoidance: see Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

Attitude of the Defendant

1. [7]

   In written submissions, counsel for the defendant informed the Court that the defendant did not oppose the imposition of an ISO, including the conditions proposed by the State.

2. [8]

   Counsel for the defendant made the following concessions for the purpose of this interlocutory application only:

3. [9]

   It is not in issue that the defendant's current sentence, which is being presently served on parole, expires on 14 September 2021.

4. [10]

   As I have previously noted in other like matters, these proceedings are civil proceedings in which the defendant is represented by counsel. This Court is entitled to rely upon such explicit concessions, properly made by counsel, as constituting a sufficient reason to make the interlocutory orders by way of an ISO with conditions for the protection of the community.

Relevant Evidence

1. [11]

   In determining whether to make the orders sought by the State, I have had regard to all of the evidence put before the Court.

2. [12]

   I note that the evidence establishes to my satisfaction the following matters which are encapsulated in the State's submissions:

Previous Supervision Order

1. [13]

   I note that in 2017, Davies J concluded that an ISO ought to be made with respect to the defendant on the material which then existed. A subsequent term of imprisonment to which the defendant was sentenced then obviated the need for any further supervision order to be made.

Conclusion

1. [14]

   Having regard to the material and all of the facts established, I am well-satisfied that the orders sought by the State in its summons of 7 July 2021 ought be made.

Orders

1. [15]

   Accordingly, I make the following orders:

   1. (1)

      Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:

   2. (2)

      Order:

   3. (3)

      Order until further order, that access to the Supreme Court file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and if any application for access is made by a non‑party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.