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)

  Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2017/151745 & 2017/222614

Judgment

1. On 5 June 2017 I made interim orders on an application made by the State under the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to the Defendant: State of New South Wales v Briar [2017] NSWSC 702. The summons in the matter was filed on 19 May 2017 and the evidence disclosed that the Defendant had been sentenced on 19 February 2015 to a term of imprisonment which concluded on 20 September 2017.

2. On that basis, the application made by the State was properly made within the time limitation imposed under s 6(2) of the Act. Since the making of the orders, the State has ascertained that the Defendant was sentenced for other matters in the Parkes Local Court on 20 January 2017 to a sentence of imprisonment that expires on 30 November 2017. The result is that the summons filed on 19 May 2017 was filed outside of the last six months period of the offender's current custody or supervision, as s 6(2) requires.

3. The fault in this matter not being ascertained does not appear to have been with the Crown Solicitor who commenced the proceedings on behalf of the State on the information she was given, but with some department or body which instructs the Crown Solicitor in relation to these applications. It would have to be observed that the failure for the Crown Solicitor properly to be instructed in this matter is to be regretted. The costs to the State of now having to restart the proceedings, as it were, and, if it is thought appropriate to pay the costs thrown away by the Defendant of the need to recommence the proceedings, are costs which should not have needed to be incurred.

4. Better systems need to be put in place to ensure that at the time of filing a summons in these types of matters the Crown Solicitor has up to date information concerning the sentence a defendant is serving. A further reason is the fact that this Court is obliged to make late adjustments to its listings whenever these matters are filed, often unnecessarily late, to ensure that the final hearing of them occurs at a sufficient time before the expiry of any sentence being served to ensure that, if continuing detention or supervision orders are made, as seamless a transition as is possible occurs.

5. In the circumstances, the Plaintiff is given leave to discontinue the present proceedings and is given leave to file a fresh summons today commencing proceedings, where the same orders are sought on both an interim and a final basis. It is not proposed that any of the directions which I gave on 5 June 2017 should be altered and nor is it suggested that there is any substantive change to any of the matters which I referred to in my judgment.

6. Accordingly, leave is given to the Plaintiff to discontinue the existing proceedings.

7. Leave is given to the Plaintiff to file in Court the summons dated today, together with a notice of motion.

8. The notice of motion is to be returned instanter.

9. I make orders in terms of paragraphs 3 to 10 of the short minutes of order.

10. The parties have liberty to apply to relist on one day's notice.

11. The Plaintiff is to pay the Defendant's costs thrown away by reason of the discontinuance of the earlier proceedings to which I have referred.

12. The hearing date of 15 September 2017 is confirmed.

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Decision last updated: 24 July 2017