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Supreme Court 9 May 2007

ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v QUINN

[2007] NSWSC 456

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPLICATION FOR INTERIM DETENTION ORDER STANDARD OF PROOF NATURE OF THE STANDARD

Citation: Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456
Court: Supreme Court of New South Wales, Common Law Division
Date: 9 May 2007
Judge(s): Hall J

Background

The Attorney General for New South Wales applied to the Supreme Court for an interim detention order under the Crimes (Serious Sex Offenders) Act 2006 (NSW). The defendant was serving a custodial sentence for a serious sex offence, with that sentence due to expire on 13 May 2007. Because proceedings for a final continuing detention order could not be concluded before that date, the Attorney General sought an interim order to bridge the gap.

The application was supported by five affidavits and was heard on 8 May 2007. The defendant opposed the making of the interim detention order. As an alternative to full detention, the Attorney General also sought an interim supervision order if the detention order was not granted.

The case raised important questions about what evidence is required at the interim stage and what standard the court must apply before depriving a person of their liberty on an interim basis under the Act.

  • Whether the three statutory requirements for an interim detention order under the Act were satisfied on the evidence before the court
  • What standard of proof applies to an application for an interim detention order, and what that standard requires in practical terms
  • Whether a predictive risk assessment is sufficient to establish that an offender is "likely" to commit a further serious sex offence for the purposes of an interim order
  • Whether any delay in making the application was relevant, and if so, whether it provided grounds to refuse the order

Decision

Hall J found that the three requirements for an interim detention order under section 16(1) of the Act were each satisfied. First, the defendant was in custody serving a sentence for a serious sex offence. Second, his sentence was due to expire on 13 May 2007, before final proceedings could be determined. Third, the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order.

On the question of the standard of proof, the court noted that interim order proceedings under sections 8 and 16 of the Act do not require strict application of the rules of evidence. The court drew on the principle from Briginshaw v Briginshaw that, in civil proceedings, the gravity of the consequences informs the level of satisfaction required. The interim stage calls for a less exacting inquiry than a final hearing, but the material must nonetheless sufficiently establish a real risk of re-offending.

The court accepted that a predictive risk assessment, while inherently probabilistic, was sufficient for the purposes of the interim order. The supporting material adequately established the requisite risk that the defendant was likely to commit a further serious sex offence if released without supervision or detention.

On the question of delay, Hall J found there was no relevant delay in the making of the application. Even if some delay had been established, it would not have provided a basis for refusing the interim order in the circumstances of this case.

Orders Made

  • The defendant be detained in a correctional centre on an interim basis for 28 days from 13 May 2007 (pursuant to section 16(1) of the Act)
  • A warrant issue for the committal of the defendant to a correctional centre for the duration of the interim detention order (pursuant to section 20(1) of the Act)
  • Two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the defendant and furnish reports to the Supreme Court by 1 June 2007
  • The defendant be directed to attend those psychiatric examinations

Key Takeaways

  • Under the Crimes (Serious Sex Offenders) Act 2006 (NSW), an interim detention order requires the court to be satisfied of three distinct matters: that the offender is in custody for a qualifying offence, that the current sentence will expire before final proceedings conclude, and that the supporting material, if proved, would justify a continuing detention order.
  • The rules of evidence do not apply in proceedings for interim orders under sections 8 and 16 of the Act; the court may receive and act upon supporting documentation that would not be admissible at a final hearing.
  • A predictive risk assessment as to the probability of re-offending can constitute sufficient material to satisfy the court for the purposes of an interim detention order, even though such assessments are inherently probabilistic rather than certain.
  • The Briginshaw standard applies in the sense that the gravity of the consequences, including potential loss of liberty, informs the degree of satisfaction the court must reach, though the interim stage requires a less searching inquiry than a final determination.
  • Findings made at the interim stage are expressly preliminary in nature, and the court emphasised that nothing decided at the interim stage would necessarily carry over to any final hearing, at which evidence from the defendant may also be adduced.

Legislation and Cases Referenced

Legislation
- Crimes (Serious Sex Offenders) Act 2006 (NSW), including sections 3, 7, 8, 9, 14, 15, 16, 17, 20, and 21

Cases
- Attorney General for the State of NSW v Gallagher [2006] NSWSC 340 (McClellan CJ at CL, examining the scheme of the Act)
- Briginshaw v Briginshaw (1938) 60 CLR 336 (standard of satisfaction in civil proceedings)