R v Tillman - [2008] NSWSC 1227

CITATION: R v Tillman [2008] NSWSC 1227

HEARING DATE(S): 31 October 2008

JUDGMENT DATE :
31 October 2008

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 31 October 2008

DECISION: Conditional bail granted.

CATCHWORDS: BAIL - charges of sexual assault and related matters - alleged offences in 1995 - applicant discharged at committal proceedings in 1998 - applicant in custody between 1997 and 2008 - complainant revives complaint to police in April 2007 - applicant charged in June 2008 - applicant subject to civil detention under Crimes (Serious Sex Offenders) Act 2006 from May 2007 to October 2008 - application in October 2008 by State of New South Wales for extended supervision order - interim supervision order made pending final hearing - s.9D Bail Act 1978 - exceptional circumstances - applicant subject to stringent conditions under interim supervision order - conditional bail granted

LEGISLATION CITED: Crimes Act 1900
Bail Act 1978
Crimes (Serious Sex Offenders) Act 2006

CATEGORY: Principal judgment

CASES CITED: R v Young [2006] NSWSC 1499
R v Jacobs [2008] NSWSC 417

PARTIES: Kenneth David Tillman (Applicant)
Regina (Respondent)

FILE NUMBER(S): SC 2008/17024

COUNSEL: Mr M Johnston (Applicant)
Ms S Maxwell (Solicitor) (Respondent)

SOLICITORS: Nyman Gibson Stewart (Applicant)
Director of Public Prosectuions (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

31 October 2008

2008/17024 Regina v Kenneth Davidson Tillman

NON-PUBLICATION ORDER CONCERNING THE NAME OF THE COMPLAINANT AND ANY INFORMATION WHICH MAY DIRECTLY OR INDIRECTLY IDENTIFY THE COMPLAINANT
JUDGMENT (on application for bail)

1 JOHNSON J: This is an application for bail by Kenneth Davidson Tillman, who is next to appear at the Junee Local Court on 11 November 2008 with respect to a number of serious sexual assault charges. The offences are alleged to have occurred in August 1995. The applicant is charged with three counts of aggravated sexual assault upon a victim, aged under sixteen years, being offences under s.61J Crimes Act 1900. In addition, there are three charges of assault occasioning actual bodily harm which also arise from the events said to have occurred in 1995.

2 The application for bail is opposed by the Crown.

3 It is common ground that s.9D Bail Act 1978 applies to this application. The applicant is charged with serious personal violence offences and is, within the meaning of the Act, a repeat offender because of earlier convictions. As a result, the Court is not to grant bail to the applicant unless the Court is satisfied that exceptional circumstances justify the grant of bail.

4 The charges brought against the applicant relate to events in 1995. [EDITED - NON-PUBLICATION ORDER]. The charges involve allegations of sexual intercourse in the form of fellatio and digital penetration. The applicant was charged in 1997 with these offences. In June 1998, the applicant was discharged following committal proceedings. The complainant did not attend Court in 1998.

5 In 2007, the complainant learned that the applicant was to be released from custody…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tillman

Details

AGLC: R v Tillman [2008] NSWSC 1227
Case: [2008] NSWSC 1227
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the case of R v Tillman, the applicant, who was previously charged with sexual assault and related matters stemming from alleged offences in 1995, was discharged at committal proceedings in 1998. The applicant was in custody between 1997 and 2008, and the complainant revived the complaint to the police in April 2007. Subsequently, the applicant was charged in June 2008 and had been subject to civil detention under the Crimes (Serious Sex Offenders) Act 2006 from May 2007 to October 2008. In October 2008, the State of New South Wales applied for an extended supervision order under section 9D of the Bail Act 1978, and an interim supervision order was made pending the final hearing. The applicant was subject to stringent conditions under the interim supervision order, and conditional bail was ultimately granted.

The court was required to decide whether the applicant should be granted bail under section 9D of the Bail Act 1978, considering the exceptional circumstances and the stringent conditions imposed on the applicant. The applicant argued that the delay in the complainant reviving the complaint and the subsequent charges should be taken into account when determining bail. The court considered the principles of justice, public safety, and the risk of reoffending, as well as the applicant's history of custody and civil detention.

The court found that, despite the delay in the complainant reviving the complaint, the seriousness of the alleged offences warranted a cautious approach to bail. The court acknowledged the applicant's lengthy period in custody and civil detention, but also recognised the need to protect the community and ensure that the applicant did not reoffend. The court concluded that, given the stringent conditions imposed on the applicant under the interim supervision order, conditional bail could be granted while taking into account the exceptional circumstances of the case. The court emphasised the importance of monitoring and support for the applicant to prevent any potential reoffending.

The final orders included the grant of conditional bail to the applicant, subject to stringent conditions and ongoing monitoring under the extended supervision order. The court also directed that the applicant should comply with all terms and conditions of the bail and supervision orders, and that any breach would result in the revocation of bail and potential re-imprisonment.

Orders