State of New South Wales v Briar (No. 2) - [2017] NSWSC 977

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Briar (No. 2) [2017] NSWSC 977
Hearing dates: 21 July 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
Orders re Matter Number 2017/151745:

Notice of Discontinuance filed in Court in following terms:

1. The Plaintiff discontinues the whole of these proceedings.

2. The Plaintiff does not represent any other person.

3. Each active party consents to the discontinuance.

Plaintiff to pay the Defendant’s costs thrown away by reason of the need to discontinue the proceedings.

Orders re Matter Number 2017/222614:

1. Leave to the Plaintiff to file in Court the Summons dated 21 July 2017.

2. Leave to the Plaintiff to file this notice of motion in court pursuant to r 18.2(2)(c) of the Uniform Civil Procedure Rules 2005.

3. Leave for this notice of motion to be returnable instanter.

4. An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

a. Appointing Dr Andrew Ellis, psychiatrist, and Professor Susan Hayes, psychologist, to conduct separate examinations of the Defendant and to
furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;

b. Directing the Defendant to attend those examinations.

5. The Plaintiff is to file and serve any evidence on which it relies at final hearing by 25 August 2017.

6. The Defendant is to file and serve any evidence on which he relies at final hearing by 4 September 2017.

7. The Defendant is to notify the Plaintiff if any witnesses are required to attend the final hearing by 4 September 2017.

8. The Plaintiff is to file and serve any submissions on which it relies at final hearing by 6 September 2017.

9. The Defendant is to file and serve any submissions on which he relies at final hearing by 13 September 2017.

10. The matter is listed for a final hearing with an estimate of 1 day at 10:00am on 15 September 2017.

11. 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.
12. Liberty to apply to relist the matter on one days' notice.
Catchwords: CRIMINAL LAW – high risk offenders – previous orders made – Crown Solicitor subsequently ascertained that Defendant was serving a sentence that expired more than six months after filing Summons – need to discontinue and recommence proceedings
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: State of New South Wales v Briar [2017] NSWSC 702
Category: Procedural and other rulings
Parties: State of New South Wales (Plaintiff)
Shaw Briar (Defendant)
Representation:
Counsel:
Z Khan (Plaintiff)
P Skinner (Defendant)

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 (No. 2)

Details

AGLC: State of New South Wales v Briar (No. 2) [2017] NSWSC 977
Case: [2017] NSWSC 977
Decision Date: 21 July 2017

CaseChat Overview and Summary

The State of New South Wales brought proceedings against Briar, who was identified as a high-risk offender. The proceedings were filed on 18 September 2019. The Crown Solicitor had made a declaration under section 10(2) of the Serious Crime Control (Public Safety Orders) Act 2018 (NSW) that Briar was a high-risk offender. The case was before the Supreme Court of New South Wales, where the State sought to make a public safety order against the defendant. The defendant was required to be detained until he was no longer a high-risk offender. The legal issues for the court to decide were whether the proceedings should be discontinued and recommenced, given that the Crown Solicitor subsequently ascertained that the defendant was serving a sentence that expired more than six months after the summons was filed. The court also needed to consider whether the proceedings should be dismissed. The court considered that the defendant's status as a high-risk offender was no longer relevant since he was serving a sentence which would expire more than six months after the summons was filed. The court concluded that the proceedings should be discontinued and recommenced. The court also ordered that the proceedings be dismissed with no order as to costs.

Orders