Attorney General for New South Wales v Tillman

The Attorney General for New South Wales appealed to the Court of Appeal of New South Wales against a decision by a single judge who refused to make an interim detention order or an interim supervision order in respect of Mr Tillman, a convicted serious sexual offender who had served his sentence. The Attorney General contended that the judge erred in law and in fact in her refusal to make either order, given Mr Tillman's extensive criminal history for rape and sexual assault and evidence of a high risk of recidivism.

The central legal issues before the Court of Appeal were whether the judge had exercised her discretion under section 16 of the Crimes (Serious Sexual Offenders) Act 2006 (NSW) incorrectly, and whether her findings of fact were demonstrably wrong. Specifically, the court considered whether the judge had given undue weight to the perceived lateness of the application, the likely final outcome of any proceedings, and the fairness to Mr Tillman, while failing to adequately consider the protective objects of the Act and the inadequacy of supervision orders in circumstances of high risk. The court also examined whether the judge had made an error of fact in finding that Mr Tillman had no history of attacks against random individuals, when the evidence presented suggested otherwise.

The Court of Appeal found that the judge had erred in principle by considering irrelevant factors, such as the perceived lateness of the application and the fairness to Mr Tillman, when determining whether to make an interim order. The court held that the discretion conferred by section 16 of the Act was enlivened by the satisfaction of the elements outlined in subsections (1)(a) and (1)(b), which concerned the likelihood of Mr Tillman committing further serious sexual offences. The court also found that the judge had made an error of fact regarding Mr Tillman's history of attacks, which was contrary to the evidence. The court concluded that the judge had failed to properly exercise her discretion, giving insufficient weight to the evidence of high risk and the protective purpose of the legislation.

The appeal was upheld, and the Court of Appeal made an interim supervision order in respect of Mr Tillman.