State of New South Wales v Briar - [2017] NSWSC 702

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Briar [2017] NSWSC 702
Hearing dates: 5 June 2017
Date of orders: 05 June 2017
Decision date: 05 June 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
Orders as per Short Minutes of Order dated 2 June 2017:

1. An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW);

a. appointing Dr Andrew Ellis, a qualified psychiatrist, and Professor Susan Hayes, a registered psychologist, to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 23 August 2017;

b. directing the Defendant to attend those examinations.

Orders as per Short Minutes of Order dated 5 June 2017:

1.   The Plaintiff is to file and serve any evidence at final hearing on which it relies at least 15 business days prior to final hearing, that is by 25 August 2017.

2.   The Defendant is to file and serve any evidence on which he relies at final hearing at least 10 business days prior to final hearing, that is by 1 September 2017.

3.   The Defendant is to notify the Plaintiff if any witnesses are required to attend the final hearing at least 10 business days prior to final hearing, that is by 1 September 2017.

4.   The Plaintiff is to file and serve any submissions on which it relies at final hearing at least 7 business days prior to final hearing, that is 6 September 2017.

5.   The Defendant is to file and serve any submissions on which he relies at final hearing at least 2 business days prior to final hearing, that is by 13 September 2017.

6.   The matter is listed for a final hearing with an estimate of 1 day at 10am on 15 September 2017.

7. An order be issued under s. 77 of the Crimes (Administration of Sentences) Act 1999 directing the Commissioner of Corrective Services to cause the Defendant to be produced at Court for the final hearing by audio visual link at 10am on 15 September 2017.
8.   Liberty to apply to relist the matter on one day’s notice.
Catchwords: CRIMINAL LAW – high risk offenders – application for continuing detention order - preliminary hearing – whether defendant is a high risk violent offender – where final hearing will be conducted prior to expiration of the defendant’s sentence – only order sought is examination of defendant by psychiatrist and psychologist – need to find prima facie case even although no interim order is being made – principles for determining preliminary hearings
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
Attorney General for New South Wales v Tillman [2007] NSWCA 119
Attorney General for the State of New South Wales v Winters [2007] NSWSC 611
Cornwall v Attorney General for New South…

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 State of New South Wales v Briar

Details

AGLC: State of New South Wales v Briar [2017] NSWSC 702
Case: [2017] NSWSC 702
Decision Date: 05 June 2017

CaseChat Overview and Summary

In the case of State of New South Wales v Briar, the State sought a continuing detention order for the defendant under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant, Briar, had been convicted of serious offences and his sentence was due to expire. The court was required to determine whether there were reasonable grounds to believe that Briar was a high risk violent offender and that he should be detained. The application for a continuing detention order was made during a preliminary hearing, before the final hearing which was scheduled to occur before the expiration of Briar's sentence.

The legal issues that the court had to decide included whether a prima facie case existed for the defendant to be considered a high risk violent offender, and whether it was necessary to establish such a case at the preliminary hearing stage. Another issue was whether the order sought, which was limited to the examination of the defendant by a psychiatrist and a psychologist, was sufficient for the purposes of a preliminary hearing. The court needed to balance the need to protect the community against the rights of the defendant.

The court found that even though an interim order was not being sought, a prima facie case needed to be established at the preliminary hearing. This was necessary to ensure that the defendant's rights were not infringed upon without justification. The court considered the principles established in previous cases and concluded that the application could proceed to the final hearing, provided that there was a sufficient basis to believe that the defendant posed a high risk to the community. The order for the examination of the defendant by a psychiatrist and a psychologist was deemed appropriate to gather the necessary information. The court allowed the application to proceed to the final hearing.

The court ordered that the preliminary hearing continue and that the defendant be examined by a psychiatrist and a psychologist. The final hearing was to be conducted before the expiration of the defendant's sentence, allowing for all relevant information to be considered before any decision on the continuing detention order was made.

Orders