Winters v Attorney General of New South Wales

The appeal concerned an application by the Attorney General of New South Wales for a continuing detention order or, in the alternative, an extended supervision order for the appellant, Christopher Paul Winters, a serious sex offender. The primary judge had found that while an extended supervision order might otherwise have been appropriate, he could not be satisfied that adequate supervision could be provided due to two specific concerns: the unavailability of funding for essential individual counselling sessions with a particular psychologist, and the appellant's stated intention to re-offend upon release.

The legal issues before the Court of Appeal included whether the primary judge erred in finding that adequate supervision could not be provided under an extended supervision order. Specifically, the court considered whether the primary judge was correct in finding that the State would not fund the necessary psychological treatment and whether evidence regarding the State's funding policy was admissible and given appropriate weight. The court also considered whether the proceedings constituted an abuse of process.

The Court of Appeal dismissed the appeal. It reasoned that the primary judge had correctly identified the relevant issues and applied the appropriate legal principles. The court found that the primary judge's conclusion that adequate supervision could not be provided was based on a proper assessment of the evidence, including the crucial finding that the necessary funding for the appellant's intensive psychological treatment was not available from the State. This lack of guaranteed funding meant that the proposed conditions for an extended supervision order, which relied on such treatment, could not be met to the required standard. The court also noted that the primary judge had reversed the onus of proof in his initial statement but ultimately addressed the correct question, concluding that he was persuaded that adequate supervision could not be provided.