Citation: State of New South Wales v Windle (No. 5) [2020] NSWSC 385
Court: Supreme Court of New South Wales
Date: 2 April 2020
Judge(s): Hamill J
Background
The defendant is a convicted offender who served a sentence of imprisonment for a serious violence offence, specifically attempted murder by suffocation. He has been the subject of extended supervision orders (ESOs) under the Crimes (High Risk Offenders) Act 2006 (NSW) for some years, and this decision is the fifth in a series of related proceedings.
At the time of this hearing, the defendant remained subject to an existing ESO due to expire on 11 June 2020. The State applied for a further ESO, with the final hearing listed for 1 June 2020, before the current order was to expire.
The matter came before Hamill J as a preliminary hearing, at which the court was asked to consider whether the supporting material justified proceeding to a final hearing, and to appoint experts and set a timetable for that hearing.
Legal Issues
- Whether the material alleged in the supporting documentation would, if proved, justify the making of a further extended supervision order under the Crimes (High Risk Offenders) Act 2006
- Whether the appointment of qualified psychiatrists under section 7(4) of the Act was warranted
- Whether an interim order was required, given the timing of the final hearing relative to the expiry of the existing ESO
Decision
Issue 1: Threshold for proceeding to final hearing
Hamill J was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (at [3]). The uncontested material indicated that the defendant had served a sentence for a serious violence offence, remained a supervised offender under an existing ESO, and that the application was made in time and in accordance with the Act (at [4]).
Issue 2: Unacceptable risk finding
The court noted that the material may, at the final hearing, persuade the presiding judge that there is a high degree of probability the defendant poses an unacceptable risk of committing another serious violence offence if a further ESO is not made (at [5]). In reaching this preliminary view, Hamill J had regard to earlier judgments of this court, the original sentencing remarks, and a risk assessment report prepared as recently as 23 March 2020. The court also noted material suggesting non-compliance, impulsivity, and alcohol use as potentially relevant considerations for the final hearing (at [5]).
Issue 3: No interim order required
Because the final hearing was scheduled to occur before the expiry of the existing ESO, Hamill J confirmed there was neither the need nor the jurisdiction to make an interim order at this stage, by reference to section 10A of the Act (at [1]).
Issue 4: Expert appointments and procedural orders
The court appointed two qualified psychiatrists under section 7(4) of the Act to conduct separate examinations of the defendant and report to the court. The parties agreed on one expert; they were directed to agree on a second by the end of the week, with liberty to return if disagreement arose (at [8]).
Orders Made
- Two qualified psychiatrists appointed under section 7(4) of the Crimes (High Risk Offenders) Act 2006 to conduct separate psychiatric examinations of the defendant, with one expert agreed by the parties and the second to be agreed within days
- The defendant directed to attend those examinations
- Expert reports to be furnished to the court by 29 April 2020
- Plaintiff to file and serve evidence and submissions by 6 May 2020
- Defendant to file and serve evidence and submissions by 13 May 2020
- Plaintiff to file and serve any reply evidence and submissions by 22 May 2020
- Defendant to advise which experts are required to give evidence at the final hearing by 4pm on 26 May 2020
- Working copies of documents to be provided to the presiding judge's chambers by 5pm on 28 May 2020
- Final hearing listed for 1 June 2020 with an estimate of one day
- Non-party access to the court file restricted without leave of a judge, with parties to be notified of any such application
- Liberty to apply to relist the matter on one day's notice
Key Takeaways
- Under section 10A of the Crimes (High Risk Offenders) Act 2006, a court has neither the need nor the jurisdiction to make an interim order where the final hearing is listed before the expiry of the existing extended supervision order (at [1]).
- At a preliminary hearing, the threshold is whether the material alleged in the supporting documentation would, if proved, justify making an extended supervision order; the court does not resolve contested factual questions at this stage (at [3]).
- Section 7(4) of the Act provides the mechanism for the court to appoint qualified psychiatrists to examine the defendant and report ahead of the final hearing, and parties may agree on the identity of those experts (at [8]).
- A defendant's history of non-compliance, impulsivity, and alcohol use may be relevant considerations when a court assesses unacceptable risk at the final hearing, even where those matters are noted only at the preliminary stage (at [5]).
- Where the final hearing is imminent relative to the expiry of the existing order, the preliminary hearing performs a case management function, establishing the expert and evidentiary timetable rather than determining substantive questions of risk (at [1], [6]).
Legislation and Cases Referenced
Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 7A, 10(4)
Cases
- R v Windle [2012] NSWCCA 222
- R v Windle (Unreported, District Court of New South Wales, Garling DCJ, 15 December 2011)
- State of NSW v Windle [2016] NSWSC 1816
- State of NSW v Windle (No. 2) [2017] NSWSC 94
- State of NSW v Windle (No. 3) [2017] NSWSC 727
- State of NSW v Windle (No. 4) [2017] NSWSC 1155