State of New South Wales v Welsh

I am considering the State of New South Wales’ application for an extended supervision order against the defendant, Mr Welsh. In support of the application, Mr Mykkeltvedt of learned counsel who appears for the State has read the affidavit of Yan Lun Loh affirmed on 7 April 2025, and tendered the documents exhibited to the deponent at the time the affidavit was affirmed.

Ms Akthar of learned counsel, appearing for the defendant, objects only to the documents appearing behind Tabs 10 and 11 of the affidavit exhibit, located in the second volume of the Court Book provided for the conduct of today’s hearing.

The material appearing behind Tab 10 consists of Court Attendance Notices relating to various matters said to have been committed contrary to law on or about 29 December 2023, and Tab 11 consists of police facts sheet setting out the allegations of fact underpinning those various matters.

Ms Akthar objects on the ground of relevance. It is common ground that these charges were ultimately withdrawn by the Director of Public Prosecutions without any determination on the merits. In order to be considered relevant, evidence must be capable of proving directly or indirectly some fact in issue. Ms Akthar’s argument to that end is that unproven charges in this context are incapable of proving any fact in issue, and therefore, the tender should be rejected.

Mr Mykkeltvedt relies upon s 25 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) which empowers the Attorney General, who has the carriage of these matters, to obtain information compulsorily by notice. In particular, s 25(3) is centrally relied upon by counsel and is put in the following terms:

To my mind, that would tend to render the documents admissible despite any law to the contrary including the provisions of the Evidence Act 1995 (NSW). This is notwithstanding the consideration that these proceedings are civil proceedings and the general rule that the adjectival law concerning civil proceedings is applicable: s 21. Obviously, the specific provisions of s 25(3) modify or exclude the general provisions of s 21 of the Act to the extent to which the former provision expressly applies.

Mr Mykkeltvedt also submits that, in any event, the documents are relevant having regard to the provisions of s 9(3) of the Act, particularly subpar (h) which renders it mandatory for the Court to have regard to:

Mr Mykkeltvedt argues that the words in parentheses in s 9(3)(h) referring specifically to prior convictions and findings of guilt, in contradistinction, and juxtaposition, to the “offender’s criminal history”, should be taken as indicating that the meaning of the expression "criminal history" extends beyond matters which resulted in a conviction or a finding of guilt. At least grammatically, that argument is correct.

Mr Mykkeltvedt also relies upon s 9(3) (i) which refers to “any other information that is available as to the likelihood that the offender will commit a further serious offence.”

Ultimately, counsel asserts that the real question is what weight can be afforded to evidence of unproven charges which is a matter for judgment at the end of the case rather than an interlocutory question of admissibility. I agree. I am of the view that the material is admissible by force of s 25(3) of the Act, and for that reason, I will overrule Ms Akthar's objection.

The more substantive argument in relation to the meaning of s 25(3)(h) can be argued in final submissions to the extent to which the matter is significant to my determination of the ultimate questions in this case.