New South Wales Supreme Court CITATION : State of New South Wales v Hill (No 1) [2009] NSWSC 1137 HEARING DATE(S) : 17 March 2009, 26 March 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J EX TEMPORE JUDGMENT DATE : 26 March 2009 CATCHWORDS : SERIOUS SEX OFFENDER – Interim Supervision Order – statutory conditions satisfied – issue of constitutional validity raised – urgent that orders issue – orders issued with minimum conditions Crimes (Serious Sex Offenders) Act 2006 LEGISLATION CITED : Judiciary Act 1903 (Cth) The Constitution CATEGORY : Principal judgment PARTIES : State of New South Wales (Plaintiff) Allan Troy Hill (Defendant) FILE NUMBER(S) : SC 11422/2009 COUNSEL : C Adamson SC / D T Kell (Plaintiff) P Strickland SC (Defendant) SOLICITORS : Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 26 MARCH 2009 11422/2009 State of New South Wales v Allan Troy Hill (No 1) EX TEMPORE JUDGMENT 1 HIS HONOUR: The State of New South Wales (the plaintiff in these proceedings) moves by summons for orders under s 7(4) of the Crimes (Serious Sex Offenders) Act 2006 (the "Act") for the appointment of two qualified psychiatrists and directing the defendant to attend examinations with those psychiatrists and an order under s 8(1) of the Act for an Interim Supervision Order from today's date for a period of 28 days. 2 The summons also seeks an Extended Supervision Order, being a supervision order for a period of five years from the order, but that is not a matter with which the Court, as presently constituted, is required to deal. 3 The matter came before the court as Duty Judge and on the application of the parties, stood over for a time for the plaintiff (the State of New South Wales) and the defendant (Mr Hill) to address the Court more fully on the reasons for, and supporting documentation in favour of, the interim order. 4 The Act, as is obvious from its terms, applies to persons who have been convicted of serious sex offences and imposes on such persons, notwithstanding that they are not charged with any further or other crime, restrictions of a serious nature. Extended Supervision Orders are made on the determination of the Court relating to risks associated with the offender committing further serious sex offences and requires a high degree of probability that the offender is likely to commit such offences. Interim Supervision Orders under s 8 are orders of an interlocutory kind designed to provide supervision until such time as the Extended Supervision Order application may be heard and determined. 5 An order under s 8 of the Act, which is the kernel of the proceedings currently before the Court, may extend for a period not exceeding 28 days and while it may be renewed, may not extend for periods totalling more than 3 months. 6 When the matter came on for hearing today Mr Strickland SC, who appears for the defendant (Mr Hill) gave notice to the Court of a matter arising under The Constitution or involving its interpretation, being a matter to which the provisions of s 78B of the Judiciary Act 1903 (Cth) applies. 7 The provisions of s 78B require (when a matter is pending in a court, either federal or state, which matter arises under The Constitution or involves its interpretation) the Court not to proceed in the cause, unless and until the Court is satisfied that the Attorneys General of the Commonwealth and the States and Territories have been notified of the issue involving the interpretation of The Constitution or arising under The Constitution, and the background matters which are before the Court. 8 Prima facie, the position of the Court is that, in circumstances where, as here, Mr Strickland has given notice of a matter, assuming the matter is either arguable or not colourable, arising under The Constitution and to which s 78B applies, the Court must adjourn and direct notice be given to the Attorneys. 9 The matter which is raised on behalf of Mr Hill and which is said s 78B of the Judiciary Act applies is the validity of the provisions of s 8(1) and s 7(4) of the Act. I will, without doing any justice to the page or so of notice that has been filed, summarise the point as a proposition that the provisions of both s 8(1) and s 7(4) of the Act grant to the Court a power or jurisdiction which is inimical to the functioning of the Court as a court, to which Chapter III of The Constitution applies. 10 Mr Strickland submits that the matter, upon which notice has been given, is not covered by the judgment of the High Court in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, because these aspects of the interim or interlocutory orders are different and distinguishable from the orders considered by the High Court in Fardon. 11 The distinction sought to be made by Mr Strickland is a distinction that turns on the proposition that the Supreme Court of New South Wales, under s 8, and to a lesser extent also under s 7(4), is required to look at the matters alleged in the supporting documentation and assume, for the purposes of the interlocutory proceedings, that they are true and assess whether that documentation, if proved, would justify the making of an Extended Supervision Order. 12 In Fardon, the Queensland Supreme Court, even at the interlocutory stage, was required to assess whether the suspicion was a reasonable suspicion and, it is said by Mr Strickland, that this is a significant differentiating feature, which brings to bear the issues associated with the matters discussed by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. 13 Because of the nature of the proceedings that are before me at the moment, it is necessary for me to point out one aspect of the legislation. The legislation requires an Interim Supervision Order to be made prior to the expiry of the sentence of a person alleged to be otherwise covered by the provisions. 14 In the case of Mr Hill, the defendant in these proceedings, his sentence will expire at midnight tonight. If an Interim Supervision Order is not made today it can never be made, at least as the legislation is currently framed. As a consequence of that, it seems to me that the issue of simply adjourning the proceedings for a time to have appropriate argument on the "constitutionality" of the provisions in s 8(1) and s 7(4) of the Act is not an option that is available appropriately to the Court and this is a proceeding that must be, on a very interim basis, heard and determined prior to any adjournment for the serving of notice. 15 Notwithstanding that determination, the provisions of s 78B of the Judiciary Act require the Attorneys to be notified for a very good reason; firstly, there is the opportunity for removal to the High Court; secondly, the validity or otherwise of legislation and/or the interpretation of The Constitution are matters that directly affect both the Commonwealth and the States. Even though the State of New South Wales is in fact a party to these proceedings, other States have an interest, as does the Commonwealth, in the determination of these matters. 16 It is, in my opinion, therefore, not appropriate that I proceed finally to determine even those matters involving the Interim Supervision Orders, but, rather, put in place an appropriate regime, and adjourn the matter so that argument may proceed on these constitutional issues and the Attorneys have the opportunity of being heard on the matters. 17 The issue that then arises is what is an appropriate regime to put in place and for what period of time. It seems to me that a period less than 21 days would not give sufficient time for the Attorneys to be appropriately notified and form a view as to whether or not they wish to intervene and/or respond. 18 On the other hand, I consider that the minimum amount of time should be allowed given the urgency of these matters and the issues that are raised by them. In the circumstances, and subject to what now follows, I will adjourn this application for a period of 21 days and list it before me on Thursday, 16 April 2009. 19 I turn then to the regime as earlier stated. The summons and the matters that are raised before the Court as presently constituted seek orders of supervision not detention. There are aspects of the supervision to which Mr Strickland, while not agreeing with any of the supervision provisions and while objecting to all of them, has pointed as being particularly onerous, even in an interim or holding situation. 20 The principle that I apply at this point in time, given that I have not decided the issues raised by Mr Strickland and particularly whether the provisions are constitutionally valid, is that I should balance on the one hand the rights of the defendant, Mr Hill, to liberty, generally assumed under the common law, and on the other, the need firstly to make some order and to deal with the public interest aspects as to the amelioration of risk to which the statute points. 21 Because the orders will operate for a limited period, I intend to make orders that, were it for a more extended period, may not be appropriate, either because they are too onerous or too generous, as the case may be, and I seek to balance the issues raised by the legislation together with the right Mr Hill would otherwise have to his liberty. I first deal with the issue of the application that is before the Court. 22 As is required by s 6 of the Act, when the State of New South Wales applies to the Supreme Court in relation to a person who otherwise meets the description contained in the Act, it must do so within the last six months of the offender's current custody or supervision. At least on the material that is before the Court, this has been done. 23 Secondly, the application must be supported by documentation that addresses matters contained in s 9(3) relating to the safety of the community, reports received from persons appointed under s 7(4), results of assessment, the result of any statistical or other assessment as to the likelihood of a person with history and characteristics similar to those of the offender committing serious sexual assault offences, treatment and rehabilitation programs in which the defendant has participated, and the level of offender's compliance with other obligations. 24 For obvious reasons, not all of the matters contained in s 9(3) can be addressed, until such time as an order has been made under s 7(4) of the Act. As a consequence, the provisions in s 6(3) are somewhat elliptical, and, on one view, full compliance is impossible. 25 Section 9(3), as already stated, requires a report from a person appointed under s 7(4), which person is not appointed until application is made, which application must be, it seems, supported by documentation dealing with the very report that is sought. Nevertheless, as the High Court has made clear on a number of occasions, it is my function to make sense of the provisions, and obviously the criteria in s 9(3) must be addressed to the extent possible. 26 As to the risk of Mr Hill re-offending, the report of Patrick Sheehan is before the Court. Mr Sheehan is a psychologist. It is a risk assessment report and states, and I quote: "On 29/4/99, after a jury trial spanning ten days, Mr Hill was convicted of one count of aggravated break and enter and commit felony and five counts of aggravated sexual assault. On the 18/8/99, he was subsequently sentenced by Justice Taylor to a ten year sentence (expiring 27/3/09) with a seven year non-parole period (expiring 27/3/06). This conviction relates to an incident occurring on the 28/3/98, during which Mr Hill perpetrated a sexual assault against a female in the rural township of Dubbo." 27 There is then reference to the crime committed and the sexual assault, which I do not repeat. 28 The report deals with a number of aspects including certain psychiatric considerations and deals at length with a number of non-sexual convictions with which Mr Hill is reportedly associated. The report of Mr Sheehan arises from, it seems, two interviews with Mr Hill and the examination of official documentation. It deals with aspects of the risk and certainly, if it were accepted, would deal with the matters or most of them, that are capable of being dealt with, referred to in s 9(3). It also assesses the likelihood of the offender committing a further serious sex offence. That assessment (at page 23 of the report) is that "Mr Hill's risk of sexually reoffending is estimated to be in the high risk category relative to other men who have sexually offended. He has been afforded a high level of psychological intervention specific to offence-related behaviours and has generated what appears to be a realistic and insightful plan for addressing the factors associated with risk. Mr Hill has also demonstrated that he is capable of applying some treatment gains in the context of daily life, however a number of his recent behaviours indicate that the application of goals in the community is not comprehensive. Episodes of rule-breaking, dishonesty, alcohol and other drug use and placing himself in high risk situations all suggest that a number of dynamic and acute risk factors are still operating. Ongoing supervision may assist Mr Hill by enforcing that he does not engage in high risk behaviours at times when his own self-management is inadequate. Mr Hill would benefit from ongoing therapeutic assistance to generalise treatment gains and alternative coping strategies, should he be amendable to such intervention." Mr Sheehan then states, and I quote: "It is recommended that any management plan - and I interpose, that being a management plan supervised by the community compliance group - be designed to be minimally restrictive, but rather to be supportive of and to encourage the establishment of a balanced and responsible lifestyle as reflected in Mr Hill's Self Management Plan. The level of restriction and autonomy afforded Mr Hill should remain dynamic, reflecting changes in his own ability to manage his risk behaviour as evidenced by his behaviour over time." I turn then to the orders sought on an interim basis by the State of New South Wales. I will deal with them, if I can, in short form. 29 The schedule to the summons sets out reporting and monitoring obligations. I would firstly make an order under s 7(4)(a) appointing two qualified psychiatrists to conduct separate psychiatric or psychological examinations of the offender and to furnish reports to the Supreme Court as a result of those examinations. At this stage I do not direct the defendant to attend those examinations, but I make it clear that when the matter is heard by me, if I be otherwise minded to make orders, I would make an order under s 7(4)(b) within very short time thereafter. 30 As to the provisions of s 8(1), albeit on a very preliminary basis, and given I have not heard the defendant on the merits of such an order, even on an interlocutory basis, I accept, it is necessary to have a regime, pending the determination of the constitutional point, because the offender's current custody order for supervision will expire before the proceedings will be determined. Further, on the preliminary basis already mentioned, I find that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order subject, as I said, to hearing what may be put against it. 31 On an interim basis, I would make the following orders: (i) I would make the orders contained in paragraphs 1, 3 and 4 of the Schedule to the Summons. (ii) In relation to paragraph 2, I would add the following order: "That the defendant must report twice daily to a police station, nominated by the departmental supervising officer, between the hours of 6.00am and 8.00am, and 8.00pm and 10.00pm respectively." That is a condition in addition to the reporting personally once a week to the department. (iii) I do not make orders in paragraphs 5 and 6. (iv) I make orders in terms of paragraph 7. (v) In relation to paragraph 8, I make the order in paragraph 8 with the following addition: "Employment at the Aboriginal Connection Employment Service and/or Sydney Water is exempt from this provision but should be notified to the departmental supervising officer." (vi) I make the conditions in paragraph 9. (vii) I make all of the orders in paragraph 10, 11 and 12. (viii) In relation to paragraph 13, I make the order in the fifth sentence thereof. In relation to the second sentence thereof, I make the following order: "The departmental supervising officer may disclose to such other person the fact that the defendant, as a result of domestic violence offences, is not permitted to drink alcohol, if the officer be satisfied that to do so is necessary or required in the interests of the safety of the other person. If the departmental supervising officer considers it necessary to disclose any other matter in relation to the defendant's history, application on short notice should be made to this Court." (ix) I make orders in accordance with paragraphs 14, 15 and 16. (x) In relation to paragraph 17, I make the order that, for the duration of the order, the defendant must reside with Mr Gary Bell at 5B, 346-348 Bulwara Road, Ultimo, provided that, to the extent that the plaintiff, through the departmental supervising officer or otherwise, assesses that accommodation is inappropriate, it may apply on one working day's notice to the Court for a variation thereof. (xi) I make the order in 18, save that the curfew will be 11pm to 5am. (xii) I make the orders in 19 and 20; I make the orders in 21(b); I make the orders in 22, 23, 24, 25, 26, 27, 28 and 29. (xiii) In relation to paragraph 30 of the schedule, I do not make that order but I give the plaintiff leave on 24 hours' notice to approach the Court, if it were to consider that it has reasonable grounds for believing that it is appropriate to advise an employer of any information, and if so, what information. (xiv) Leave is granted to take out the order forthwith. (xv) I direct the defendant to serve the notice of constitutional matter of which the Court has received notice on the Attorneys. Such service to be effected by close of business Monday, 30 March 2009. (xvi) The defendant should file and serve written submissions by 4.00pm on 10 April 2009. (xvii) The plaintiff should file and serve written submissions by 4.00pm on 14 April 2009. (xviii) If any attorneys wish to intervene they should file and serve written submissions by 4.00pm on 14 April 2009. (xix) Parties will have liberty to apply within 24 hours notice in respect of all orders. 32 The formal orders are made and issued separately. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.