State of New South Wales v Potger [2023] NSWSC 1422

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Potger [2023] NSWSC 1422 Hearing dates: 08 November 2023 Date of orders: 21 November 2023 Decision date: 21 November 2023 Jurisdiction: Common Law Before: Garling J Decision: See [30] Catchwords: HIGH RISK OFFENDER – preliminary hearing – defendant concedes that an Interim Supervision Order should be made – dispute about curfew condition – no issue of principle. Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Cases Cited: State of NSW v Sotheren (preliminary) [2018] NSWSC 754 Texts Cited: Not Applicable Category: Principal judgment Parties: State of New South Wales (P) Noel Potger (D) Representation: Counsel: P Aitken (P) H Blake (D)

Solicitors: Crown Solicitor (P) Legal Aid NSW (D) File Number(s): 2023/275993 Publication restriction: Not Applicable

JUDGMENT 1. On 30 August 2023, the plaintiff, State of New South Wales, ("the State") commenced proceedings by Summons against the defendant, Noel Potger, seeking orders pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"), including a final order for the imposition of an Extended Supervision Order ("ESO"). 2. This judgment deals with the State's application for interim and interlocutory relief. The State seeks: "1. An order pursuant to s 7(4) of the [HRO Act]: (a) appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court with the results of those examinations by a date to be fixed by the Courts: (b) directing the defendant to attend those examinations. 2. An order: (a) pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order from 22 November 2023 …; (b) pursuant to s 10C(1) of the Act, that the Interim Supervision Order be for a period of 28 days; and (c) pursuant to s 11 of the Act, direct that the defendant for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to the Summons. 1. As well, ancillary relief is sought with respect to the confidentiality of the documents on the file. 2. The defendant, by his counsel, consented to the making of the interlocutory and interim orders sought by the State on the conditions ultimately agreed to between the parties, subject to one condition discussed below. 3. As this is a civil proceeding in which the defendant is represented by counsel, the Court is entitled to rely upon the various concessions made by counsel. Those concessions included: 1. that each of the statutory pre-conditions necessary to be fulfilled before an Interim Supervision Order ("ISO") or an ESO could be made, have been fulfilled (s 51 of the HRO Act); 2. that the matters alleged in the documentation served by the State with the application, "would, if proved, justify the making of an ESO …" (s 7(4) of the HRO Act); and 3. in all of the circumstances, an ISO ought to be made. 1. As well, it is accepted by the State and the defendant that the offender's current custody, which is due to expire on 22 November 2023, will expire before the proceedings commenced by Summons are finally determined.