State of New South Wales v SLD (No 5) [2021] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v SLD (No 5) [2021] NSWSC 606 Hearing dates: 25 March 2021 Date of orders: 25 March 2021 Decision date: 25 March 2021 Jurisdiction: Common Law Before: Campbell J Decision: Reject the affidavit of Nicole Ahern sworn on 22 March 2021 Catchwords: PRACTICE AND PROCEDURE – High Risk Offender – Late tender of an affidavit – Time limited legislative scheme – Forensic prejudice to one of the parties – Affidavit rejected Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 7(2), 21 Cases Cited: N/A Texts Cited: N/A Category: Procedural rulings Parties: State of New South Wales (Plaintiff) SLD (Defendant) Representation: Counsel: P Aitken (Plaintiff) E. Kerkyasharian and L. Jardim (Defendant)

Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2020/308796 Publication restriction: S 15A Children (Criminal Proceedings Act) 1987 NSW and Pseudonym order made by Bellew J

EX tempore Judgment 1. This is an application by the State under the Crimes (High Risk Offenders) Act 2006 (NSW) for a continuing detention order against the defendant, SLD. 2. SLD was sentenced to a maximum of twenty years imprisonment as a thirteen-year-old by Wood CJ at CL for the murder of a three-year-old infant. He has been in custody in various places in New South Wales since his arrest. He has never been considered eligible for parole notwithstanding the imposition of a ten year non-parole period by Wood CJ at CL. 3. The matter has been proceeding before me for three days. It commenced last Thursday, occupied the whole of Friday and was supposed to conclude on Monday 22 March 2021, but needed to be adjourned because I was assigned to other work due to the unavoidable absence of another judge. 4. The State has sought to read an affidavit of Nicole Ahern sworn on 22 March 2021. Ms Ahern is the Chief Psychologist in charge of the Intensive Therapeutic Programs at Correction Services, New South Wales. The evidence she gives concerns aspects of the Violent Offender Therapeutic Program ("VOTP"). That program may have some significance for my decision because one of the grounds upon which the State argues that the risk that SLD presents can only be managed by a continuing detention order is the need for him to complete the VOTP. He commenced this program towards the end of his term but was suspended from it for various reasons I need not go into at this stage. He himself has a view that it is not suitable for him. 5. It has been obvious from the commencement of the proceedings that this is a matter which would in all probability assume some significance. There has been evidence about the VTOP from witnesses who have been called so far, as well as evidence in the documentary material which has gone in without objection. 6. Following the evidence of a witness last Friday, Mr Aitken of learned counsel who appears for the State, enquired as to whether I would benefit from receiving further evidence about the VOTP, a question I declined to answer given the adversarial nature of the proceedings. 7. Mr Kerkyasharian of learned counsel who appears with Ms Jardim for the defendant, objects to the whole of the affidavit being read, and has prepared written submissions which I have marked MFI 1. 8. Following argument, certain passages of Ms Ahern's affidavit are not to be read to accommodate specific objections to certain passages raised by Mr Kerkyasharian, but he still objects to the whole of the affidavit. 9. Proceedings under the Act are civil proceedings, and according to s 21: "The extent to which this Act does not provide for their conduct, [proceedings] are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings." There is also a requirement under s 7(2) of the Act for compulsory disclosure by the State, however I have expressed the view, to which I adhere, that this evidence is not captured by that provision. 1. In accordance with the Court's usual practice, a detailed timetable was fixed for the exchange of evidence prior to the commencement of the trial. It is also not without significance that these matters are necessarily dealt with by the Court as urgent matters because the legislation itself provides limited time for these serious matters to be dealt with. Proceedings may not be commenced seeking relief under the Act until the last nine months of an offender's sentence or supervision. And although interim orders may be made, they provide only a window of three months following the completion of custody (or relevant supervision) for the Court to determine the proceedings. They are, like these proceedings, almost always closely contested. But there is an added degree of complexity in this matter because of the length of time that SLD has been in prison, and because of the significance of imposing a custodial order on a person after the sentence imposed for his crime has expired. 2. Mr Kerkyasharian argues that: the evidence will take up additional time, already half an hour has been taken up arguing the objection; the cross-examination, he says, will necessarily be lengthy, which I accept; and that he is, in any event, at a disadvantage in the cross-examination because he wishes to challenge many of the propositions put forward by the witness but has not had the opportunity to undertake what he regards as the necessary research to equip himself to conduct the cross-examination efficiently. 3. Given the issues, were this not a case under the Act but an ordinary civil proceeding, doubtless, were I to allow the evidence in, an application for adjournment would follow. 4. I observe that but for the circumstance that the matter could not proceed before me on Monday 22 March, an unexpected circumstance beyond the control of the parties, or of me, this affidavit could never have been brought forward and the matter would have been completed on Monday on the basis of the evidence as it had already been exchanged. I make no criticism of anybody taking the opportunity of a forced adjournment to undertake further work on the case. However, the fact remains, for better or worse, the matter would have gone to conclusion before me on Monday without Ms Ahern's additional evidence. I have no doubt her evidence is relevant. I have no doubt her evidence may be entitled to weight, given her senior position and, doubtless, her long experience in the service. 5. However, I am satisfied that admitting the evidence would forensically prejudice SLD and I am not in a position to cure that prejudice by granting an adjournment or making other directions in relation to the matter. In my view, the prejudice that SLD would suffer by admitting the evidence is greater than the prejudice the State suffers by it being excluded. 6. As is apparent from counsel's argument, there is a deal of evidence already in describing the VOTP and dealing with the circumstance of SLD's failure to complete it during the currency of his term of imprisonment. 7. For these reasons, in the exercise of my discretion, I reject the affidavit of Nicole Ahern sworn on 22 March 2021, which I will mark for identification as MFI 2.