State of New South Wales v SLD (No 6)

[2021] NSWSC 607

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v SLD (No 6) [2021] NSWSC 607
Hearing dates:	25 March 2021
Date of orders:	25 March 2021
Decision date:	25 May 2021
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Admit the affidavits of Nicole Ahern and Rev Muss dated 24 March 2021
Catchwords:	PRACTICE AND PROCEDURE – High Risk Offender – Late tender of an affidavit – Evidence relevant to the defendant’s state of mind under stress – Delay – Affidavit admitted
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), s 7
Cases Cited:	N/A
Texts Cited:	N/A
Category:	Procedural rulings
Parties:	State of New South Wales (Plaintiff) SLD (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) E. Kerkyasharian and L. Jardim (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2020/308796
Publication restriction:	S 15A Children (Criminal Proceedings Act) 1987 NSW and Pseudonym order made by Bellew J

EX tempore Judgment

1. The State of New South Wales seeks to read two affidavits in relation to a discrete incident occurring on 25 July 2017. The affidavits are of the Reverend Mark Muss sworn on 24 March 2021 and an affidavit of Ms Nicole Ahern sworn on 24 March 2021. This is the second affidavit of Ms Ahern and is different from the affidavit I referred to in my ruling earlier today.

2. The substance of the evidence sought to be introduced is a report that the Rev Muss made in his capacity as an Anglican Chaplain performing pastoral work at Lithgow Correctional Centre, where SLD has from time to time been incarcerated.

3. In July 2017, it appears that the Reverend Muss was engaging with SLD in what was referred to as the Positive Lifestyle Program, during which SLD made some concerning statements to the Rev Muss. He felt that it was important for him to draw the statements to the attention of the gaol authorities because he is a mandatory reporter. I interpolate that it is not insignificant that before the report the Rev Muss stated that he told SLD that he felt obliged to inform Ms Ahern about these matters and he recalls SLD as having responded that he would deny saying any of it. The evidence really, if admitted, goes to SLD’s state of mind, which is a not insignificant question in the overall context of the proceedings.

4. In substance, SLD told Rev Muss that he continues to fantasise about killing people, although if he is released, he will try to live a pro-social life - I am paraphrasing - but if it does not work out, he will resort to killing. His fantasies extended to mass murder for the purpose of attracting media attention so that the world will know what has happened to SLD in custody. He also stated that if he was not released, he would seek to break his virginity by raping a female corrections officer. He would also kill as many officers as he possibly can. Obviously, these things were said when SLD was under a state of very significant stress as a parole hearing was approaching. There are other matters which are consistent with things he has said at other times, including in the affidavit proposed to be read in the proceedings.

5. Mr Kerkyasharian objects to the receipt of this material in evidence. He points out that as these representations are contained within a document prepared by the Rev Muss which was obviously within the possession of Corrective Services at Lithgow, the documents should have been produced under s 7 of the Crimes (High Risk Offenders) Act2006 (NSW). He also points out that the receipt of the material in evidence would be of limited value given that the Court appointed experts have come and gone and this material was not drawn to their attention, and receiving it in evidence will lead to significant delay in a matter which has already been delayed somewhat and which must be dealt with within a short period of time given the urgency with which the Court treats these matters.

6. Although the statements were made four years ago, if true I am of the view that they are relevant to a consideration of SLD’s state of mind under stress. It must be said that some of the statements, of course, are grandiose in terms, like what he has said about mass killing to get media attention to demonstrate the injustice done to him. That grandiosity is an aspect of his Antisocial Personality Disorder which, on balance, all experts agree he is subject to. It may be that the matters are of limited weight, given their relative remoteness in time, but it cannot be said they are not relevant and it cannot be said that they are not potentially of concern having regard to the decision I am required to consider.

7. The primary object of the Act is, of course, community safety and that is the paramount consideration that I must bring to bear when deciding whether to make either a continuing detention order or an extended supervision order. I interpolate the latter is not in issue.

8. There is an explanation given for the non-disclosure which Mr Kerkyasharian criticises and I do not criticise him. It is unfortunate the matter was not brought forward. It is at the heel of the hunt and its coming to light followed a series of events, including the service of an unsworn affidavit from Ms Ahern that was the subject of my earlier ruling and a responsive notice to produce served on the plaintiff by the defendant once they had Ms Ahern's affidavit.

9. I am satisfied that the matter is of some importance and despite my concerns about delay, and subject to giving Mr Kerkyasharian the opportunity to obtain instructions in relation to the matter, it should be admitted, subject to Dr Furst and Dr Pulman being made available for further cross-examination at the request of Mr Kerkyasharian, limited to this topic only.

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Decision last updated: 28 May 2021