State of New South Wales v Gavin

[2022] NSWSC 125

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Gavin [2022] NSWSC 125
Hearing dates:	28 January 2022
Date of orders:	28 January 2022
Decision date:	28 January 2022
Jurisdiction:	Common Law
Before:	Garling J
Decision:	See [10]
Catchwords:	HIGH RISK OFFENDERS — extended supervision orders — relevance of material to proceedings — information is relevant if it relates to the issues in the proceedings — material not relevant
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	State of New South Wales (P) Joseph Emmanuel Gavin (D)
Representation:	Counsel: Mr J Emmet SC / Ms McEwen (P) Self-Represented (D) Solicitors: NSW Crown Solicitors Office (P)
File Number(s):	2021/348609
Publication restriction:	Nil

EX TEMPORE Judgment

1. Application is made by the State of NSW, by a Notice of Motion filed 25 January 2022, to provide relief to it from the obligations which fall on it with respect to disclosure of information to a defendant for the purposes of the application made by it to this Court for orders under the Terrorism (High Risk Offenders) Act 2017 (“THRO Act”).

2. The application has been dealt with ex parte as a matter of urgency in the course of the vacation duty list. The defendant, Mr Gavin, does not have lawyers presently acting for him, has been informed of the proceedings and has elected on two occasions not to appear.

Principal Proceedings

3. An application has been made by the State by a Summons filed on 8 December 2021. The Summons seeks the imposition of an Extended Supervision Order for a period of 3 years. It seeks, as well, a number of interlocutory orders.

4. In accordance with the legislation, a preliminary hearing has been fixed to take place on 31 January 2022 before Harrison J.

5. In advance of that hearing, s 24(2) of the THRO Act requires the State to disclose to the eligible offender, here the defendant, “such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence)”.

Present Issue

6. Documents and information obtained by the State from the Justice Health and Forensic Mental Health Network includes material which may be neutrally described as sensitive. By affidavit, and as a consequence of submissions from senior counsel for the State, I am satisfied that no part of that sensitive material falls within the phrase “… as are relevant to the proceedings …” in s 24(2) of the THRO Act.

7. My conclusion about that is fortified by the following. First, the statement made to this Court that the State does not propose to adduce any of the sensitive material or information derived from it in evidence against the defendant. Secondly, that the information is now over 18 months old, and refers to events which preceded by an unknown period of time the recording of the information. Thirdly, the author of an undated confidential psychological risk assessment report, which was prepared in late November 2021, has by subsequent report made it clear that the sensitive information to which she had made reference in preparing the original of her report, has no bearing upon her opinion which would remain the same whether or not she had regard to that information.

8. This, to my mind, enables a conclusion to be drawn that the information is irrelevant to her expert opinion. And, fourthly, that a proper interpretation of the THRO Act does not compel a conclusion that relevance, as that term is used in s 24(2) of the Act, is of any greater width than a document, a report, or other information which relates to the issues in the proceedings as brought by the State. That is because at the time disclosure is required, it may not be known what issues, if any, the defendant may raise.

Conclusion

9. In those circumstances, rather than embarking upon a determination of a very complex question as to whether public interest immunity may or may not apply to the documents and any derived information, I propose to make a declaration that has the consequence of ensuring that the information is not disclosed to the defendant because it is not relevant to any issue or matter in the proceedings, and the State has no obligation to disclose it.

Orders

10. I make the following orders and declarations:

1. Declare that upon the proper construction of s 24(2) of the Terrorism (High Risk Offenders) Act 2017, the documents and information contained in confidential exhibit PO2 lodged with the Court are not relevant to the proceedings on the application.

2. Declare that on the proper construction of s 24(2) of the Terrorism (High Risk Offenders) Act 2017 paragraphs 16, 17, and 29 of the undated confidential psychological risk assessment report prepared by Ms Czerkies with respect to the defendant, together with footnotes 7, 8, insofar as it relates to tab 11, 30, in so far as it relates to tab 1B at p 175, and items 48 and 64 in the bibliography to that report are irrelevant to the proceedings.

3. Grant leave to the plaintiff to serve on the defendant and tender in evidence a copy of that confidential psychological risk assessment report with those matters redacted.

4. Grant liberty to apply in the event that there is any confusion or lack of clarity.

5. Order that insofar as the file contains a confidential affidavit of Paul O’Reilly sworn 25 January 2022, confidential Exhibits PO1 and PO2 and confidential submissions made to me, that those documents are to be placed in a sealed envelope, marked confidential, and bear a label that they are not to be opened other than by an order the judge of this Court.

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Amendments

28 March 2022 - [8] - typographical error

Decision last updated: 28 March 2022