State of New South Wales v Gavin - [2022] NSWSC 84

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: State of New South Wales v Gavin [2022] NSWSC 84
Hearing dates: 31 January 2022
Date of orders: 10 February 2022
Decision date: 10 February 2022
Jurisdiction: Common Law
Before: Harrison J
Decision:
Summons filed 8 December 2021 dismissed with costs

Catchwords:
TERRORISM HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007, s 13
Criminal Code (Cth), ss 100.1, 101.1, 101.6, 102.3, 102.4, 102.6, 102.7
Terrorism (High Risk Offenders) Act 2017, ss 4, 10, 20, 21, 23, 24, 25, 27

Cases Cited:
Hardy v State of New South Wales [2021] NSWCA 338
State of New South Wales v Alam [2020] NSWSC 295
State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876
State of New South Wales v Naaman (No 2) [2018] NSWCA 328

Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Joseph Emmanuel Gavin (Defendant)
Representation:
Counsel:
J Emmett SC with R McEwen (Plaintiff)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2021/348609
Publication restriction: Nil

Judgment

HIS HONOUR: By its summons filed on 8 December 2021, the State of New South Wales seeks, among other things, an order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 appointing a psychiatrist and a psychologist to examine Mr Gavin and to furnish reports about him. The State seeks an associated order that Mr Gavin be subject to an interim supervision order pending a final hearing at which the State will ask that any interim order that is made be extended for a further period of three years.
Mr Gavin is presently serving a sentence of imprisonment for one count of stalk/intimidate with intent to cause fear of physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007. For that offence, to which he pleaded guilty in the Penrith Local Court on 11 August 2021, he was sentenced to a term of imprisonment of 15 months commencing on 14 November 2020. He currently lives in the community, having been released on parole at the expiration of his 9-month non-parole period on 13 August 2021. His sentence is due to expire on 13 February 2022.
The scope of the preliminary inquiry that I am required to conduct directs attention to two questions:

first, whether I am satisfied of the eligibility requirements in ss 20(a), (b) and (c) of the Act, and in particular whether Mr Gavin is an “eligible offender” by reason of being a “convicted NSW terrorism activity offender” within the meaning of s 10(1) of the Act;

secondly, whether the matters alleged in the supporting documentation would, if proved, allow me to be satisfied to a high degree of probability that Mr Gavin…

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 Gavin

Details

AGLC: State of New South Wales v Gavin [2022] NSWSC 84
Case: [2022] NSWSC 84
Decision Date: 10 February 2022

CaseChat Overview and Summary

The case of State of New South Wales v Gavin was heard in the Supreme Court of New South Wales. The defendant, Gavin, is a high-risk terrorism offender facing the possibility of an extended supervision order. The application for the order was initiated by the state, which sought to prevent Gavin from posing a risk of committing a serious terrorism offence. The court's preliminary hearing examined the specific legal issues regarding the test to be applied at the preliminary stage of these proceedings, particularly the question of whether Gavin posed an unacceptable risk of committing a serious terrorism offence and the specificity of such a risk.

The legal issues central to this case involved the criteria and burden of proof necessary to establish an unacceptable risk of a serious terrorism offence during the preliminary stage of extended supervision order proceedings. The court had to determine whether the state had provided sufficient evidence to warrant the granting of an extended supervision order. Furthermore, the court needed to assess the specificity of the risk, considering whether the risk of a serious terrorism offence was sufficiently detailed and credible to justify the imposition of such an order.

In its decision, the court outlined that the test for an extended supervision order at the preliminary stage should focus on whether there is a reasonable apprehension that the defendant poses an unacceptable risk of committing a serious terrorism offence. The court emphasised that the evidence presented must demonstrate a real and credible risk, with sufficient specificity to justify the order. In this instance, the court found that the state had not provided adequate evidence to establish that Gavin posed an unacceptable risk of committing a serious terrorism offence. Consequently, the application for an extended supervision order was dismissed at the preliminary stage.

The Supreme Court of New South Wales ruled that the state had failed to meet the necessary burden of proof and specificity required to justify the imposition of an extended supervision order on Gavin. The court ordered that the application for the extended supervision order be dismissed, highlighting the importance of providing detailed and credible evidence to support such serious allegations.

Orders