Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v McLeod [2016] NSWSC 1052 Hearing dates: 18 May 2016 Decision date: 01 August 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): (a) The following two experts are appointed to conduct separate examinations of the defendant: (i) Dr Andrew Ellis, qualified psychiatrist; and (ii) Kate Seidler, registered psychologist. (b)The defendant is directed to attend the examinations referred to in order 1(a). (c) The experts referred to in order 1(a) are to furnish their reports to the Supreme Court as to the results of those examinations by 5 September 2016. (2) Access to the Court's file by a person who is not a party in respect of any document shall not be granted without the prior notification to the parties of the person's application for access, and without the leave of a judge of this Court. (3) The matter is listed for further directions before the Common Law Registrar at 9 AM on Monday 15 August 2016. (4) The parties have liberty to restore the matter to the list on two days' notice. (5) The parties have liberty to approach my Associate within two weeks of today, on or before 15 August 2016, with regard to the making of either consent order in chambers or with regard to conducting a further brief hearing before me with regard to alteration of order 1(a)(i), 1(a)(ii), and 1(c). Catchwords: CIVIL LAW – application for mandatory psychiatric examinations pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether defendant a "high risk violent offender" – whether test made out at preliminary stage Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 (NSW), ss 4, 35(2) Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5, 5A, 5A(1), 5A(1)(a), 5A(2), 13C(1), 15, 15(4), 15(5), 17(4)(a), 17(4)(h), 17(4)(i) Crimes (High Risk Offenders) Amendment Act 2016 (NSW) Cases Cited: Attorney General (NSW) v Hayter [2007] NSWSC 983 State of New South Wales v Conway [2011] NSWSC 976 State of New South Wales v Mackey [2015] NSWSC 514 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 State of New South Wales v Veeran [2015] NSWSC 75 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Keiron John McLeod (Defendant) Representation: Counsel: I Fraser (Plaintiff) A Cook (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2016/104290 Publication restriction: Publication restriction lifted Judgment The life of the defendant 1. Mr Kieron McLeod (the defendant) was born in June 1969, and is accordingly 47 years of age. Of Aboriginal heritage, he spent his formative years on the South Coast of New South Wales, in particular in the predominantly Aboriginal community of Wallaga Lake, near Narooma. He is the youngest of four siblings, and was chiefly raised by his mother, who, regrettably, was an alcoholic. His father died in 1981 in a car accident; his mother died in 1988 from cancer, when the defendant was 19 years of age. 2. The defendant suffered a very deprived childhood, which included enduring violence at the hands of his aunts and uncles. He experienced learning and behavioural difficulties at school. He often truanted. From an early age, he developed his own serious problem with alcohol, and it has extended over many decades. 3. He left school in year 10, after he was charged with the arson of his own high school. He received his first finding of guilt in the Children's Court at the age of 13, and by the age of 15 he was detained in a Children's Detention Centre (I shall go on to discuss his criminal convictions in much more detail later in this judgment). 4. Over the years, the defendant has spent time living on the streets. He has never been employed. He remains prone to binge drinking alcohol. As a boy, he engaged in sniffing petrol and glue, and has used cannabis from the age of 15 years. More recently, there are signs that he has been using crystal methylamphetamine (Ice). He has been diagnosed with hepatitis C, and one can infer that he was infected with that disease as a result of injecting prohibited drugs. 5. Over the years there have been some suggestions of the defendant suffering from frank psychiatric difficulties, including an assertion by him that he has heard voices on occasion. Acts that should be characterised as, at the least, suicidal gestures have been committed by him. His intelligence has been assessed as average or a little below. 6. In the past, the defendant has sought help with regard to his psychological difficulties. He has attended drug and alcohol rehabilitation centres more than once, but on each occasion his attendance ended in failure. 7. Many years ago, from 20 June 2000 to 23 March 2001, he took part in the well-known rehabilitation program for sexual offenders, Custody-Based Intensive Treatment (CUBIT). As a final report of 26 March 2001, over 15 years ago, shows, he left that program having made very little progress. 8. He also very recently (in November 2015), and after some prevarication, enrolled in the similarly well-known Violent Offenders Treatment Program (VOTP). But upon the defendant being charged on 3 March 2016 with serious sexual offences said to have been committed in custody in June 2015, he was discharged from that program, in accordance with its rules. Criminal and custodial record 1. I turn to discuss the criminal record of the defendant in detail. It began in March 1983, when he was aged 13 years 9 months, with him being placed on probation for breaking, entering and stealing by the Children's Court. Thereafter, he committed a number of offences against property, and was first committed to an institution in March 1985. In this judgment I shall not recount in detail the large number of offences against property that the defendant has committed over the ensuing years, many of them resulting in his incarceration. 2. The defendant was charged with the arson of his own high school in August 1987, and in 1990 was sentenced in the District Court of New South Wales to a head sentence of 2 years with a non-parole period of 18 months for that offence. 3. In 1989, he was charged with assault occasioning actual bodily harm. The matter was committed for trial to the District Court, but thereafter no-billed. 4. In the same year, he was charged with murder, indicted for manslaughter, and pleaded guilty to common assault. I approach the matter on the basis that he committed nothing more than the latter of those three offences. He was sentenced to a fixed term of a little over one year. The conviction was based on an assault upon his girlfriend in the context of a domestic dispute, which started while they were socialising in a larger group; many hours later, she passed away. 5. In 1992, he was sentenced to a head sentence of 2 years with a non-parole period of 12 months for 2 charges of assault. The convictions were the result of him attending a house at which two 15 years olds were present, one male and one female. The defendant hit the male 15 year old repeatedly in the stomach and side with a butter knife, and forced the male victim to cook him some food. 6. In 1994, for three charges of assault, he received concurrent fixed terms of imprisonment for 12 months (to be served concurrently with other sentences for offences against property). These convictions were founded upon the defendant repeatedly punching his de facto partner in the face, including after she was knocked to the ground, and then kicking her several times whilst he was wearing boots. The offences occurred in the context of a social gathering at the house of an acquaintance, and concluded when somebody pulled the defendant off the victim, allowing her to flee the house. 7. In 1995, he was imprisoned for a total period of 12 months for convictions for indecent assault, assault occasioning actual bodily harm, and stealing. A charge of kidnapping that was originally preferred was dismissed. These offences were based upon events whereby the defendant flagged down a female motorist after running out of petrol, and she agreed to assist him after determining that they had a mutual acquaintance. He then made advances towards the woman; exposed himself to her; pulled her from her vehicle; grabbed her from behind, preventing her from breathing; and forced her towards a guard rail. He ran off when the woman's partner came out of their nearby house, after hearing her screams. 8. In 1997, he was found not guilty of malicious damage with intent to endanger life. The count was founded on the assertion that the defendant had smashed the windows of a car parked outside a house with an iron bar, or similar instrument, and made threats to the owner of the house. 9. In 1997, in the District Court of New South Wales at Bega, the defendant was sentenced to a head sentence of imprisonment for 6 years with a non-parole period of 3 years for one count of aggravated sexual intercourse and one count of aggravated indecent assault (the defendant was found not guilty of a count of attempted aggravated sexual intercourse). The defendant had pleaded not guilty to aggravated sexual intercourse, not guilty to attempted aggravated sexual intercourse, but guilty to aggravated indecent assault. 10. The count of aggravated sexual intercourse was in the context of the defendant attending the house of a female acquaintance at night; putting his hands around her throat; repeatedly punching her in the face; tearing her underpants off; and inserting either a portion of his body or an implement into her vagina (the victim was unsure). The victim received bruising to her forehead and the left side of her face and her neck, and also experienced soreness to her upper body area. 11. The count of aggravated indecent assault was based upon the defendant meeting a woman with a group of friends, and drinking with that group until the early hours of the morning. The victim was walking home, and the defendant walked behind and then with her, engaging her in conversation. Out the front of her home, the defendant pulled the hair of the victim, pulled her to the ground, and got on top of her. The defendant turned the victim over and pushed her face into the ground; the victim struggled violently. The defendant grabbed the breast of the victim before she managed to turn over onto her back, knee the defendant in the groin, and flee. 12. In April 2005, the defendant was sentenced to imprisonment for 9 months for one count of assault occasioning actual bodily harm, and imprisonment for 4 years (with a non-parole period of 12 months) for one count of malicious wounding. The sentences were ordered to be served cumulatively. They were based on events that occurred out the front of a hotel, whereby the defendant approached the front of the premises and accused people of punching his girlfriend. He then produced a knife, and proceeded to stab a patron in the groin and a security guard in the arm. 13. In 2006, he was found not guilty by a jury in the District Court at Penrith of two sexual offences alleged to have been committed against another male prisoner at Parklea Gaol. The unproven allegation involved sexual intercourse without consent by way of penile/anal intercourse, effected by threatening the victim with a razor blade. 14. In October 2010, in the District Court at Bathurst, he was convicted of assault occasioning actual bodily harm in company. He received a head sentence of 2 years and 10 months, with a non-parole period of a little less than 1 year and 6 months. The offence occurred when he and another man attended the house of a man whom the defendant had met in gaol. They proceeded to attack him before he pushed them out of the house. Both men later returned; kicked the door in; and attacked the victim by punching and kicking him to the head and body, and hitting him with a chair. The victim lost consciousness for a period of time. 15. In November 2011, in the District Court at Bathurst, the defendant was found not guilty by a jury of a large number of sexual offences alleged to have been committed against a fellow male prisoner. There were multiple alleged incidents involving penile/anal penetration, penile/oral penetration, and the defendant masturbating himself in front of the complainant, all of which was alleged to have occurred without the consent of the complainant. 16. In January 2013, in the Local Court at Nowra, he was imprisoned for 15 months with a non-parole period of 5 months for two charges of assaulting an officer acting in the execution of his or her duty. The offence occurred after he damaged the campervan of an acquaintance with a 50 cm blade (which was said to resemble a sword) before fleeing. The next day, when the police arrested him, he spat in the face of a police officer, and then verbally abused and threatened a number of officers for an extended period, before spitting on the officer again in the charge room. On appeal to the District Court at Nowra, the sentence was reduced to a head sentence of 10 months with a non-parole period of 5 months. 17. Three months after his success on that appeal, the defendant was imprisoned by the Local Court at Nowra for two charges of common assault, stealing from the person, and intimidation. He received a total head sentence of 13 months, with a non-parole period of 9 months. The offences occurred after he caught a taxi with a female companion, and then refused to pay the driver. The defendant went from the back seat to the front seat; punched the driver in the head a number of times; made repeated intimidating comments; and continually reached for the groin area of the victim. 18. On 23 September 2014 in the Local Court at Nowra, the defendant was convicted of causing grievous bodily harm whilst reckless as to the infliction of actual bodily harm, pursuant to s 35(2) of the Crimes Act 1900 (NSW). He was sentenced on 30 September 2014 and received a head sentence of 2 years, to commence on 30 September 2014 and to conclude on 29 September 2016, with a non-parole period of 18 months, which expired on 28 March 2016. The offence occurred after an argument with his girlfriend, whereby he threw her to the ground; dragged her by her shoulders along the footpath; and threatened to kill her. He also kicked her in the mouth, causing her to lose three teeth, and punched her repeatedly to the face. The offence came to an end when a cousin who witnessed the assault intervened. 19. On the same date, he received concurrent sentences for common assaults and breaching apprehended domestic violence orders. They all occurred in the context of an existing apprehended domestic violence order. The defendant attended the home of the female victim whilst appearing to be under the influence of Ice and alcohol. He grabbed the victim by her throat and punched her in the mouth; dragged her out of the house and along the footpath; and then grabbed her by the throat and punched her in the mouth again. He then punched her hard in the ribs and kicked her in the groin, before fleeing to the front steps of the RSL Club across the road. 20. Finally, on 3 March 2016, the defendant was charged with committing sexual offences against a fellow male prisoner whilst both were detained in Junee Gaol. The allegation involved repeated sexual assaults of his cellmate, including the use of threats with sharpened paintbrushes. Although one cannot predict with confidence the future course of that allegation, one can say that, if fully pressed by the Crown, it will take quite some time to resolve. I interpolate that counsel for the plaintiff made it clear that that pending allegation is no part of its case, except with regard to possible logistical considerations for the future. 21. Separately, the conduct of the defendant whilst he has been in custody over the past many years has been far from exemplary. He has committed a number of proven offences of violence against prison discipline, including in 1990 an offence of fighting; in 2005 an offence of intimidation; in 2006 an offence of indecency; in 2012 an offence of damage and destruction of property; and in 2015 a further offence of fighting. It is also the case that a number of prisoners – quite apart from those that gave evidence against him in the criminal trials that culminated in verdicts of acquittal, and in the pending allegation – have alleged that he has sexually harassed or sexually assaulted them whilst they were incarcerated with him. 22. In short, the defendant commenced to be detained as a result of his interactions with the criminal justice system in 1985, when he was a young boy. Since first coming into custody as an adult in August 1987, at the age of 18 years and 2 months, the defendant has never been out of custody for longer than 16 months (that period being from December 1987 until April 1989). Indeed, in the past 12 years, since his release in June 2004, although he has been released on many occasions, he has never been able to avoid returning to custody for a period of more than 5 months. Application 1. It is in that context that on 6 April 2016 the State of New South Wales (the plaintiff) filed in this Court a summons seeking seven orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), including the making of a continuing detention order (CDO) to be followed by an extended supervision order (ESO). At a preliminary hearing before me on 18 May 2016, only two orders contained in that summons were pressed. 2. The second of those was an order seeking to maintain the privacy of the defendant with regard to any compelled disclosures that he may make, and also to promote his rehabilitation. That is sought to be achieved by way of not granting access to the Court file to any person who is not a party, without notification to the parties of the application and a grant of leave by a judge of this Court. That order was explicitly consented to by counsel for the defendant, and I am persuaded that I should make it. 3. The other order pressed by the plaintiff was for the preparation of reports about the defendant by two qualified psychiatrists, or one qualified psychiatrist and one registered psychologist, and mandating that the defendant attend on those persons to facilitate the preparation of those reports. I shall refer to them as "mandatory reports". First basis of resistance 1. That order was opposed by counsel for the defendant. The central dispute before me was whether the preconditions for the making of such an order had been established by the plaintiff. That resistance had two aspects. 2. The first aspect was whether, in truth, the defendant has been convicted of a serious violence offence. The following summary of the statutory structure shows that that is an essential precondition for the making of any order curtailing the liberty of the defendant (including an order for mandatory reports). 3. First, the test for making an order for mandatory reports when a CDO is sought is contained in s 15 of the Act. The relevant parts of that section are as follows: 15 Pre-trial procedures (1) An application under this Part for a continuing detention order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. … (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must dismiss the application. 1. That test leads one to the test in s 13C(1) of the Act for ultimately making a CDO against a high risk violent offender. The relevant parts of that section are as follows: 13C Application for high risk violent offender continuing detention order (1) An application for a high risk violent offender continuing detention order may be made only in respect of: (a) a detained violent offender, or (b) a supervised violent offender. (2) A detained violent offender is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender's current custody): (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing continuing detention order or emergency detention order. … (4) A supervised violent offender is a violent offender the subject of an extended supervision order or an interim supervision order who: (a) has been found guilty of an offence under section 12 in respect of that order, or (b) because of altered circumstances, cannot be provided with adequate supervision under an extended supervision order or interim supervision order. … (6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4) (b) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that adequate supervision of the offender cannot be provided under an extended supervision order or an interim supervision order. 1. In other words, a CDO may only be sought against a person who is a violent offender, either in detention as defined or under supervision as defined. 2. A violent offender is defined in s 4 of the Act as follows: Violent offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence. 1. That leads to the definition of a "serious violence offence" contained in s 5A of the Act: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (3) A serious indictable offence is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act. 1. In short, in order to be the subject of preliminary orders, the defendant must have been imprisoned after conviction for a serious violence offence as defined. As a matter of statutory interpretation, counsel for the defendant submitted that he had not been, for the following reasons. 2. Counsel for the defendant accepted that the defendant has been convicted of the offence contained in s 35(2) of the Crimes Act (as I have said, an offence of inflicting grievous bodily harm while reckless to the infliction of actual bodily harm), and sentenced to imprisonment as a result. 3. But she submitted that that is not the end of the matter, and it remains necessary for a judge hearing an application such as this to be satisfied on the balance of probabilities that a defendant actually committed such an offence, in terms of there being evidence establishing that proposition. 4. In the circumstances of this case, she submitted that I would not be satisfied that the defendant actually inflicted grievous bodily harm, in that I would not be satisfied that injuries constituted by three teeth knocked out of the mouth of the victim, and those caused by dragging the victim on the ground by her shoulders and by punching the victim to the face, fall within that characterisation. 5. It can be seen that that approach to s 5A requires the section to be read as focussing not upon the constituent elements of an offence of which a defendant may have been convicted, but rather upon the evidence said to substantiate those elements. Counsel for the defendant made four submissions in support of that reading. 6. First, she compared s 5A, the definition of a "serious violence offence", with s 5 of the same Act, the definitions of a "serious sex offence" and "offence of a sexual nature". Section 5 of the Act is as follows: 5 Definitions of "serious sex offence" and "offence of a sexual nature" (1) For the purposes of this Act, a serious sex offence means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), (a1) an offence under section 61K or 66EA of the Crimes Act 1900, (b) an offence under section 38, 86 (1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for 7 years or more, and includes: (c) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and (c1) an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and (d) any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act. (2) For the purposes of this Act, an offence of a sexual nature means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, (b) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in paragraph (a), (c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900, (d) an offence under section 11G of the Summary Offences Act 1988, (e) an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 in relation to the observing or filming of a child, (f) an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000, (g) an offence under section 13 of the Child Protection (Offenders Prohibition Orders) Act 2004, (h) an offence under section 12 of this Act, and includes: (i) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence of a sexual nature for the purposes of this Act, and (j) any other offence that, at the time it was committed, was an offence of a sexual nature for the purposes of this Act. 1. She noted that the definitions of the concepts of "serious sex offence" and "offence of a sexual nature" are specifically founded on particular offence-creating provisions, to be found chiefly in the Crimes Act. She submitted that that may be contrasted to the definition of a "serious violence offence", which contains a broad definition whereby the Court has to be satisfied of various features or characteristics. She submitted that one can infer that Parliament made a deliberate decision not to enumerate specific offences in s 5A; that supports the proposition, she submitted, that the definition of a "serious violence offence" contained in s 5A of the Act calls for a focus on evidence rather than elements of offences themselves. 2. Secondly, she submitted that the four constituent components of the definition of "violent offender" in s 4 of the Act should be read as cumulative factors, not as an integrated whole. She submitted the components were: first, that the Court be satisfied the defendant is above the age of 18 years; secondly, that the person was sentenced to imprisonment; thirdly, that the matter was dealt with by way of a conviction; and fourthly, that the second and third components must have related to a serious violence offence. She submitted that each of these components is discrete and severable; that the Court must be satisfied of each component; and in particular that the reference to a conviction in the definition does not inform the separate concept of what is meant by "serious violence offence". 3. In other words, although the word "conviction" is used in close proximity to the phrase "for a serious violence offence", the concept of conviction does not inform the meaning of that phrase, in the sense of calling for focus upon the elements of the offence, as opposed to the evidence placed before the convicting court in support of the offence. 4. Thirdly, she invited my attention to other "quasi-criminal" legislation that calls for analysis of evidence rather than elements. In particular, she noted the Child Protection (Offenders Registration) Act 2000 (NSW), and submitted that, in many cases under that legislation, it is the underlying facts that need to be considered, rather than simply the offence that led to conviction. She gave the example of a child being killed or kidnapped, and a conviction being entered to an offence that is not a sexual offence as defined. Nevertheless, she submitted, it is the underlying evidence that is considered for the purposes of that Act, rather than the mere elements of the offence of which the individual was convicted. 5. Fourthly, she submitted that the reference to elements in s 5A(2) of the Act is important, and supported her submission. For convenience, that subsection is set out again below: (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. 1. She submitted that, upon its proper construction, that provision means that, even if a defendant has previously been convicted of a seemingly relevant offence, it is the role of the judge determining an application such as this to consider not only the elements but also the underlying facts, and to determine whether he or she is satisfied that the elements of the offence had been established. 2. Notably, she also submitted during discussion that the same reasoning applied to the contrasting situation, in which a person had not been convicted of an offence whose elements fit within the definition in s 5A(1)(a) of the Act. She submitted that it would be the role of the judge to determine on the evidence whether he or she was satisfied that the elements of a serious violence offence had been committed, even if no conviction had been entered for an offence possessing the necessary elements. 3. To state the submission for counsel of the defendant in summary form then, it was simply that, in considering whether the precondition contained in s 5A has been made out for the purposes of a preliminary application under the Act, it is not a matter of a judge of this Court looking to the elements of the offence for which a conviction that was entered against the defendant. Rather, she submitted, it is a matter of that judge examining for himself or herself the evidence that was placed before the court in support of that conviction (whether by way of trial, summary hearing, or plea of guilty), and thereafter determining whether that evidence establishes the test contained in that section. Determination of first basis of resistance 1. I do not accept the submissions of counsel for the defendant about the correct interpretation of s 5A of the Act. That is so for the following reasons. 2. First, to the extent that s 5A(2) of the Act speaks explicitly of elements, that explicit reference gives rise to a powerful inference that it is elements that are to be analysed for the purposes of s 5A(2) as a whole, not the evidence said to establish those elements. 3. Secondly, it is very difficult to accept that Parliament intended that a judge hearing an application such as this would embark upon his or her own analysis of the evidence said to support or not support a conviction for an offence, the elements of which fall within the definition of s 5A(1) of the Act. Such an exercise would have obvious logistical difficulties. It could also call upon a judge of this Court, in the case of a conviction founded upon a verdict of guilty of a jury, to "disagree" with that verdict. One would be slow indeed to infer such a counter-intuitive result. 4. Thirdly, I consider it much more likely that Parliament intended to impose a regime of curtailment of the liberty of citizens that was founded upon precise preconditions, in the sense of a person (and his or her lawyers) being able readily to determine whether or not the person is liable to have an order made against him or her, simply on the basis of an analysis of one's convictions, and not on an analysis of (perhaps voluminous and contestable) evidence. 5. Fourthly, I do not believe that the definition of "violent offender" contained in s 4 of the Act should be read so that its components are somehow severable. In other words, I do not believe that the word "conviction" is conceptually separate from the subsequent phrase "for a serious violence offence". I think that the integrated phrase "conviction for a serious violence offence" contained in that definition supports the proposition that the correct focus is upon the elements of the offence of which one has been convicted, not the evidence underpinning it. 6. Fifthly, it is true that, until recently, for a limited class of offences, it was necessary to analyse the evidence as opposed to the elements, for the purposes of the Act: see my discussion in State of New South Wales v Mackey [2015] NSWSC 514 and the Crimes (High Risk Offenders) Amendment Act 2016 (NSW), which commenced on 7 June 2016. 7. To give two very well-known examples, there are three potential mental elements for the offence of murder, and one set of circumstances in which it may be committed without any mental element for murder at all (constructive murder, formerly known as felony murder). It seems that some of those "versions" of murder would have fallen within the definition, and some would not, before the commencement of the amending Act. Similarly, there are many "pathways" to a conviction for manslaughter; again, it seems that some of them would have fallen within the definition and some would not, at least before the amendment. It may be that other such offences remain that have not been captured by the amendment. 8. I accept that it may still be the case that, in some limited circumstances, in determining whether an offence of which a defendant has been convicted falls within the definition of a "serious violence offence", the elements of the offence (if they are opaque with regard to the requirements of the sub-section) are not the end of the matter. In the vast majority of cases, however, that analysis will not be required, and the elements of the offence will speak for themselves as to whether they are or are not captured by the definition. In other words, the possible remaining need for the analysis of a number of exceptional offences that may be made out in a number of ways, does not, to my mind, mean that all offences are to be approached in that way. 9. Sixthly, as I have said, counsel for the defendant submitted that, hypothetically and for the sake of argument, her analysis would "cut both ways". In other words, she submitted that a citizen could be liable to severe curtailment of liberty, including extended incarceration, even if he or she had not been convicted of an offence, an element of which appears in s 5A(1), but rather of some lesser offence. In other words, she submitted that, if the evidence made out such an offence to the satisfaction of a judge hearing an application, even if a jury had not been so satisfied, then a person could be the subject of an order under the Act. 10. But I do not accept that Parliament could have intended, without expressing that intention with unmistakable clarity, that the liberty of a person could be curtailed on so amorphous a basis, and that a jury verdict could be set at naught in that way. 11. Seventhly, it is true that other quasi-criminal regimes can call for analysis of factors beyond the bare elements of an offence. But I consider that my focus must be upon construing s 5A(1) in the context of the Act as a whole in which it is located. No doubt, different regimes feature different mechanisms; I am called upon to focus on this particular regime. 12. Eighthly, the chapeau of s 5A(1) of the Act speaks of a serious indictable offence – a definitional phrase well-known to the criminal law. That definition focuses on the characteristics of the offence; namely, its ability to be dealt with on indictment, and its maximum penalty when dealt with on indictment: see definition of "serious indictable offence" in s 4 of the Crimes Act 1900 (NSW). It does not focus on the conduct underpinning such an offence. 13. Ninthly and finally, it is true that s 5 and s 5A are structurally different, in that the former largely chooses to identify particular (sexual) offences by way of the sections that create them, whereas the latter does not do so. But I do not interpret that as demonstrating a decision of Parliament to define the latter by way of evidence as opposed to elements. An alternative explanation that springs readily to mind is that there are relatively few sexual offences contained in the Crimes Act, whereas there are many offences of violence contained in the same Act that feature one or more of the elements contained in s 5A(1). In other words, I consider that the distinction is one of convenience in terms of drafting, not policy. 14. In short, as a matter of statutory interpretation, I do not accept that, in order to determine whether the defendant has committed a serious violence offence, I need to analyse the evidence that was placed before the relevant court in support of that proposition. Rather, I believe that my analysis must be limited to the elements of an offence of which he was convicted, and for which he was sentenced to imprisonment. 15. That analysis can therefore be concise. It can be seen that the elements of the offence for which the defendant was convicted on 23 September 2014 and sentenced on 30 September 2014, inflicting grievous bodily harm whilst reckless as to the infliction of actual bodily harm, do indeed fit within the elements contained in s 5A(1), in that they fall within the definition of "engaging in conduct that causes… grievous bodily harm to another person… while being reckless as to causing… actual bodily harm to another person". For that reason, I consider that that essential precondition to the making of the orders for mandatory reports has been made out. Second basis of resistance 1. Having determined that question of statutory interpretation, I now turn to the second basis of resistance: namely, whether the test for the ordering of mandatory reports has been established at the preliminary stage. The starting point of determination of that question is s 15(4) and s 15(5) of the Act, which I repeat for convenience: 15 Pre-trial procedures … (4) If, following the preliminary hearing, [the Supreme Court] is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must dismiss the application. 1. A number of aspects of that test should be briefly noted at this stage. 2. First, the test contained in s 15(4) has been repeatedly stated to be analogous to the test to be applied by a Magistrate in determining whether to commit a defendant for trial at the end of a committal hearing: see Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 3. Secondly, that test is not a particularly onerous one. 4. Thirdly, to the extent that the chapeau of s 15(4) uses the word "must", in contrast to other provisions of the Act that restrict the liberty of a defendant far more rigorously, it can be seen that, if I were to be satisfied that the test is made out, I have no discretion to decline to order the preparation of the mandatory reports. 5. Counsel for the defendant made the following submissions with regard to this second issue. 6. First, she made it clear that her submission was that, even if I did not accept her submissions in relation to the interpretation of s 5A, I would not find the preliminary test had been made out on the evidence before me. 7. Secondly, she accepted that, if I were satisfied of the preliminary test, then I do not have a discretion to decline to order the mandatory reports, as a result of the use of the word "must" in s 15(4) of the Act. 8. Thirdly, she submitted that the defendant had one single "index offence" on his criminal record. That offence featured him being reckless as to actual bodily harm, which surely places it towards the lower end of the scale of offences captured by the definition of a serious violence offence. She also submitted that it was significant that the matter was dealt with in the absence of the defendant in the Local Court, and "on the papers". 9. Fourthly, while counsel for the defendant acknowledged that the defendant has a lengthy criminal record, and that it contains several offences of violence, she emphasised that there were no offences – other than the index offence (if I were against her on her submission that it did not constitute a serious violence offence) – that are serious violence offences as defined. 10. Fifthly, she submitted that I would exercise caution when considering "potential" risk, as referred to in the written submissions of the plaintiff, in relation to the defendant. Separately, she submitted that, in light of the fact that the defendant may well be incarcerated in any event for quite some time, embarking upon the whole exercise of obtaining mandatory reports could be nugatory at this stage. 11. Sixthly, counsel for the defendant submitted that, with regard to allegations that had resulted in verdicts of not guilty returned by a jury, they should be given little or no weight in my determination. In that regard, she sought to distinguish what had been said to the contrary in State of New South Wales v Veeran [2015] NSWSC 75, on the basis that the allegations were withdrawn in that case, and not dismissed after a trial. She also sought to distinguish State of New South Wales v Conway [2011] NSWSC 976, on the basis that that case concerned uncharged allegations, rather than acquittals returned by a jury. Determination of second basis of resistance 1. Turning to my determination, I accept a number of submissions of counsel for the defendant with regard to the second issue. 2. First, the defendant has only one "index offence" on his criminal record. 3. Secondly, that offence falls towards the lower end of the spectrum of offences that can fall within the definition of a serious violence offence, both with regard to the nature of the grievous bodily harm inflicted, and also with regard to its mental element. 4. Thirdly, many of the other offences of violence that he has committed are towards the less serious end of the spectrum of offences against the person. 5. Fourthly, without coming to a firm decision about the question, in light of the preliminary nature of the application, I am prepared to approach the evidence placed before me on the basis that a criminal allegation that has resulted in a verdict of not guilty returned by a jury should be given little, if any, weight. 6. But, having accepted all that, the fact is that the defendant is a man of 47 years who has been committing offences of violence since, at the latest, the age of 19 years. He has been repeatedly imprisoned for those offences. More than one of them has been an offence of significant gravity. His most recent sentence of imprisonment for an offence of violence relates to events in 2014. He is bedevilled by longstanding problems with drugs and alcohol. His conduct in custody has also had a distinct flavour of violence. In short, at this stage there is very little to suggest that the defendant has the ability to refrain from behaving in the future as he has behaved in the past. 7. At this preliminary stage, and undertaking a predictive exercise as to whether or not a judge of this Court may ultimately impose a continuing detention order or an extended supervision order upon the defendant, I answer that question in the affirmative. It follows that I am called upon to make the first order pressed by the plaintiff before me. Conclusion 1. In short, I am persuaded that I should make order 2 by consent. 2. As for order 1, I consider that all of the preconditions for making it have been established. In those circumstances, the statute obliges me to make it. 3. Finally, I propose to order that the matter return to the list of the Common Law Registrar promptly, so that the matter can move towards its next phase efficiently. I shall also grant liberty to the parties to restore the matter to the list on short notice, in case any difficulty arises that could disrupt the final hearing. Orders 1. I make the following orders: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. The following two experts are appointed to conduct separate examinations of the defendant: 1. Dr Andrew Ellis, qualified psychiatrist; and 2. Kate Seidler, registered psychologist. 1. The defendant is directed to attend the examinations referred to in order 1(a). 2. The experts referred to in order 1(a) are to furnish their reports to the Supreme Court as to the results of those examinations by 5 September 2016. 1. Access to the Court's file by a person who is not a party in respect of any document shall not be granted without the prior notification to the parties of the person's application for access, and without the leave of a judge of this Court. 2. The matter is listed for further directions before the Common Law Registrar at 9 AM on Monday 15 August 2016. 3. The parties have liberty to restore the matter to the list on two days' notice. 4. The parties have liberty to approach my Associate within two weeks of today, on or before 15 August 2016, with regard to the making of either consent order in chambers or with regard to conducting a further brief hearing before me with regard to alteration of order 1(a)(i), 1(a)(ii), and 1(c). ********** Amendments 30 April 2024 - Publication restriction lifted 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. Decision last updated: 30 April 2024