Cornwall v Attorney General for New South Wales

Cornwall (the appellant) applied to the Supreme Court of New South Wales for a continuing detention order under the Crimes (Serious Sex Offenders) Act 2006 (NSW). The Attorney-General for New South Wales (the respondent) sought an extended supervision order. The primary judge granted the extended supervision order. The appellant appealed this decision to the Court of Appeal.

The central legal issue before the Court of Appeal was the interpretation and application of s.17(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW). Specifically, the Court had to determine the standard of proof required for the court to be satisfied to a "high degree of probability" that adequate supervision would not be provided by an extended supervision order, thereby justifying a continuing detention order. The Court also considered the onus of proof in relation to this requirement.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in their assessment of the evidence concerning the adequacy of supervision under an extended supervision order. The Court clarified that the onus rested on the respondent to establish, to a high degree of probability, that an extended supervision order would not provide adequate supervision. The Court found that this onus had not been discharged. Consequently, the Court of Appeal set aside the primary judge's order for an extended supervision order and, in lieu, made orders for the appellant to comply with specific conditions for a period of five years, with oversight administered by the Department of Corrective Services in consultation with the Community Forensic Mental Health Service.