10 The plaintiff's application was supported by affidavit evidence from Mr Patrick Sheehan and Dr Christopher J Lennings, both psychologists, Ms Sue Knight, the Acting Superintendent of the Community Compliance Group (the "CCG"), Ms Sarah Brennan of the Probation and Parole Service and an affidavit from Mr Denes Blazer, solicitor, which had exhibited to it seven lever arch folders of material comprising material organised as follows:
EXHIBIT DMB-1: Documents relating to Mr Brookes' convictions (including his antecedents, facts sheets, charges, indictments, witness statements and sentencing remarks);
EXHIBIT DMB-2: Psychology and psychiatric reports relating to Mr Brookes, including test scoresheets;
EXHIBIT DMB-3: Extracts from Mr Brookes' Probation and Parole file;
EXHIBIT DMB-4 (VOL. 1): The first volume of Mr Brookes' Justice Health file;
EXHIBIT DMB-4 (VOL. 2): The second volume of Mr Brookes' Justice Health file;
EXHIBIT DMB-5: Extracts from the Department's Case Management file in respect of Mr Brookes;
EXHIBIT DMB-6: The orders under s 25 of the Act issued to date.
11 This material ("the supporting documentation") is ultimately directed to whether the plaintiff is able to satisfy this Court on a final hearing that the statutory preconditions for making a continuing detention order for a given period are established by reference to the matters set out in s 17(4) of the Act or, in the alternative, an extended supervision order having regard to the matters set out in s 9(3) of the Act. In each case, that requires the Court to be satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if not kept under supervision and, in the case of a continuing detention order, a high degree of probability that adequate supervision will not be provided by an extended supervision order.
12 The proceedings before me were not listed for final orders. The hearing before me was limited to whether the plaintiff had made out a case to extend the defendant's custody beyond his release date for a period of 28 days (or to require him to be subject to supervision beyond his release date for a similar period) effectively so as to enable the case for final relief to be heard and determined in circumstances where his release is imminent. The supporting documentation is, however, also relevant to the determination of that question since, by operation of s 8(1)(b) and s 16(1)(b) of the Act (provisions concerned only with the power to make interim orders for detention or supervision), I am required to consider that material to see whether it would, if proved, justify the making of final orders. As I am only required to review the material for that purpose, it does not fall to me to determine the evidential weight of the supporting documentation or to predict whether the final orders will or ought be made based upon that documentation (see Attorney General for New South Wales v Tillman [2007] NSWCA 119). Rather, I am to proceed on the basis that the power to grant interim orders is enlivened where, after considering the supporting documentation I am satisfied that if it were proved it would justify the making of either category of final order. While I am mindful of the elevated standard of proof provided for in s 17(2) and s 17(3) of the Act (see Tillman v Attorney General for New South Wales [2007] NSWCA 327), it is not for me to decide whether the matters alleged in the supporting documentation would in fact satisfy the further test in s 17(3).
13 The test for determining whether the jurisdiction to make interim orders has been enlivened has been likened to the prima facie test in committal proceedings. Approached in this way, if I come to the view that a prima facie case exists for the final relief sought, the jurisdictional test for making interim orders is satisfied. It then falls to me to consider whether an interim order for continued detention should be made as matter of discretion as provided for in s 16(1) of the Act.
14 Even at the interim stage, however, it is appropriate that I take into account the dual objectives of the Act, namely to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders. In considering interim orders, it is also appropriate to give weight to risk avoidance.
15 Mr Brookes gave evidence before me and was cross-examined. The determination of the threshold question, namely, whether the power to grant an interim order for detention or supervision is enlivened, must be considered without taking that evidence into account. For that reason, those aspects of Mr Brookes' evidence that addressed, inter alia, his past offending and his current attitude to it, and the reasons why he would not participate in the Custody Based Intensive Treatment ("CUBIT") program, were not available to cast doubt upon, or to qualify the detailed review and historical analysis of those matters in the supporting documentation (see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]). Accordingly, Mr Brookes' evidence was only capable of bearing upon the residual discretion as to whether to make an interim detention order where the requirements of s 16 are otherwise satisfied. To the extent that I refer to his evidence, it is for that limited purpose.