The defendant was born on 23 October 1965 and is now aged 52 years. His criminal record commenced in 1980 when he was 14 years of age. Most of the offending involved property, motor vehicle and personal violence offences although, as far as I can ascertain from his criminal history, the personal violence offences were not offences involving serious violence.
The defendant has been convicted on two occasions of committing serious sex offences. On 19 July 1999 he broke into a home unit in on near Clayton, a suburb of Melbourne. The victim was alone in the unit. She heard a loud noise at about 3:20am which was the defendant breaking into her unit through the laundry door. The defendant grabbed the phone which she had picked up and told her to lie on her stomach, saying that he just wanted to rob the place. Having searched for money he returned to the bedroom, pulled the bedclothes and her pyjamas off her. He then digitally penetrated her vagina and subsequently penetrated her vagina with his penis until he ejaculated.
He pleaded guilty to those offence as well as offences of burglary, theft, aggravated burglary and robbery, and the possession of heroin. For the digital rape he was sentenced to five and a half years' imprisonment and for the penile rape he was sentenced to six years and nine months' imprisonment. The total effective sentence for all of the offending was nine years and seven months' imprisonment with a minimum term of seven years and seven months.
[2]
State of New South Wales v Rogers [2018] NSWSC 1314 | Case summary | Zoe
The index offence and subsequent offending
The index offence was also committed in conjunction with a break, enter and steal offence on 12 December 1995. As mentioned it was a count of aggravated sexual intercourse without consent. A further offence of aggravated sexual assault was taken into account on a Form 1. The defendant's involvement in these offences was not known until a cold case notification from DNA was found in April 2009. At the expiration of the defendant's non-parole period in Victoria he was arrested and extradited to NSW. He pleaded guilty to the NSW offences and was sentenced by Judge Frearson SC in the District Court on 1 October 2010.
As in the offending in Victoria, the defendant broke into a home unit occupied by a woman. The woman emerged from her shower and was grabbed from behind by the defendant who held a knife to her throat and told her he would use it if he had to. The defendant forced the victim onto a bed. While still holding the knife to her throat he first digitally penetrated her vagina and then subsequently had penile vaginal intercourse for a period of ten minutes culminating in his ejaculating inside her. He held the knife against her for the whole period of the sexual assaults. The knife in fact caused a 1.5cm scratch to her neck.
The defendant was sentenced for the aggravated sexual intercourse without consent to a non-parole period of four and a half years with an additional term of four years. It is that sentence which will expire on 11 October 2018.
The defendant was released to parole on 11 October 2017.
On 20 December 2017 he was arrested and charged with custody of a knife in a public place. He was granted bail and apparently complied with his reporting arrangements and complied with conditions relating to the protection of the victim. He was found not guilty of that offence.
On 28 March 2018 the defendant was charged with stalk or intimidate with intent to cause fear of physical or mental harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On 29 March 2018 the State Parole Authority revoked the defendant's parole.
On 25 July 2018 that charge was dismissed at Newtown Local Court. However, an apprehended domestic violence order was made against the defendant by consent and without admissions.
On 28 July 2018 the defendant was again released to parole.
[3]
Risk assessments
The defendant was interviewed for the purpose of a risk assessment by Dr Richard Parker, a senior psychologist at the Serious Offenders Assessment Unit.
Dr Parker found that the defendant's antisocial behaviour appeared to have developed in difficult family circumstances but had been sustained throughout a variety of environments. The family background was that his father had an affair with the father's wife's sister who lived nearby, as a result of which the defendant was born to the wife's sister. The defendant's mother died of some sort of drug overdose when he was aged about six years. He was brought up by an aunt and uncle who the defendant described as "religious freaks". He was physically abused by them during his childhood.
Dr Parker said that although the defendant's types of offending had varied, the common theme was the defendant doing what he wanted without concern for other members of society. Dr Parker said the defendant's sexual offences would appear to be an extension of his general antisocial behaviour rather than any particular predilection for sexual offending. His abuse of prescription medication appeared to have played a role, probably as a disinhibiter. His antisocial cognition appeared to be the driving force behind all of his offending. His early offending led to multiple contacts with the justice system and, consequently, bred a specific form of hatred for authority figures.
Dr Parker said that despite completing an intensive treatment program, the defendant did not appear to have realised that society's treatment of him was a reaction to his disregard for its laws. Dr Parker noted that the defendant's behaviour in custody was poor and that poor behaviour continued since his release on parole. Dr Parker said that the defendant struggled to acknowledge his sexual offending as being the result of any particular choice. Rather, the defendant attributed the offending to his substance abuse.
Dr Parker noted that since being incarcerated in NSW the defendant had not been detected using drugs. He was subject to urinalysis on eight occasions. He told Dr Parker that apart from a couple of puffs of marijuana during his current incarceration he denied using any drugs since early in his incarceration in Victoria.
The defendant claimed to have been diagnosed with paranoid schizophrenia at some time when in custody prior to 1990. However, more recent assessments did not support such a diagnosis. Both Dr Parker and a Victorian psychologist who assessed him scored him in the upper end of the high range of psychopathy. Dr Parker noted, however, that there is debate in the literature about how useful a diagnosis of psychopathy is in assessments of risk and treatment recommendations.
While in custody in Victoria Dr Parker noted that the defendant commenced a sex offender program but was removed after only three sessions for verbally assaulting a staff member. When he was transferred to NSW custody he completed the CUBIT program, but only after being suspended on multiple occasions.
Dr Parker reported that the defendant's response to community supervision in the periods since he was first released in October 2017 has been poor.
Dr Parker assessed his risk of re-offending using the Level of Service Inventory - Revised, the Static 99-R, the Stable 2007 and the Violence Risk Appraisal Guide. On all of these instruments the defendant scored in the high or very high categories.
Dr Parker noted that five implicit theories among rapists have been identified. These are:
(1) Entitlement;
(2) Dangerous world;
(3) Women as sex objects;
(4) Male sex drive is uncontrollable; and
(5) Women are unknowable/dangerous.
Of these theories, Dr Parker thought that the first was the most likely explanation for the defendant's behaviour, but that theory (2) was of significance, and that (3) and (5) may play a part in the defendant's offending.
Dr Parker said that the one positive note appeared to be the defendant's abstention from substance abuse. He said that if the defendant was able to continue to abstain from substance abuse, his chance of avoiding a return to the type of antisocial lifestyle where the sexual offences occurred is improved.
Dr Parker was subsequently provided with the defendant's NSW criminal history, documents concerned with the charge of stalk or intimidate, the defendant's breach of parole report and Corrective Services case notes concerning the defendant from 27 January 2018 until 21 July 2018. Dr Parker swore an affidavit on 2 August 2018 saying that, having read that material and reviewed his Risk Assessment Report, he adhered to his assessment of the defendant's overall risk of future violent, sexual and general offending, his risk of committing a further serious offence (either sexual or violent), and the likely scenario for future serious offending.
The risk management report prepared by the Community Corrections Officer and endorsed by the High Risk Offender Applications and Operational Governance Officer on 16 March 2018 noted that the defendant was released to supervised parole in October 2017 to reside at the Nunyara Community Offender Support Program in Malabar. He was subject to electronic monitoring. On 6 November 2017 he was placed on a management plan by COSP Management for ongoing non-compliance and unacceptable behaviour. Thereafter he was issued with a 14 day eviction notice due to his non-compliance with his management plan. He then obtained independent accommodation in a boarding house in the Newtown area.
[4]
Determination
I am satisfied that the threshold requirements in s 5B(a), (b) and (c) are met.
On the basis of the material I have seen, particularly the report and subsequent affidavit of Dr Parker, I am satisfied that if that evidence was accepted at a final hearing, an ESO ought to be made.
I note that the defendant does not oppose the making of the order that he consult with two Court appointed psychiatrists or psychologists. I note that the defendant submitted that in the circumstances that it is necessary to make an ESO, he does not oppose such an order being made although he did not concede that the making of an ISO was determinative of the final hearing. Nor did the defendant dispute the conditions that are sought to be imposed for the ISO.
In his affidavit of 2 August 2018, Dr Parker said that he considered the proposed conditions were necessary to address the risk that the defendant will commit serious offences as defined in the Act. He made specific comments on a number of conditions concerned with electronic monitoring, schedule of movements, curfew, abstinence from alcohol, possession of weapons, access to pornography, use of sex workers and medical intervention.
Interestingly, in his affidavit, Dr Parker gave as one reason for supporting a schedule of movements, that it would assist the defendant to establish meaningful routines and provide incentive for him to engage in prosocial activities. In his Risk Assessment Report Dr Parker said:
96. It is likely that the intensive intervention and supervision provided under such an order would be a constant source of aggravation to Mr Rogers, given the intensity of his attitudes towards authority. This may lead to offences (breaches or assaults against staff) as a reaction to the restrictions of the order. If required to wear electronic monitoring equipment, his enmity towards this may result in him absconding.
That is a view I share, given the defendant's history of offending and Dr Parker's view that entitlement was an explanation for at least his sexual offending and possibly his offending generally.
Nevertheless, the defendant is currently subject to electronic monitoring as part of his parole arrangements. I am satisfied that the conditions sought as part of the ISO should be made including electronic monitoring.
This is a difficult case because of the defendant's entrenched anti-authority views. In that way, the more restrictive his life and movements are made, the more likely he is to fail. Indeed, when interviewed, there was a reluctance by him to be released. He indicated that he would rather remain in custody.
I consider that those managing the defendant will need to monitor him very carefully during the term of the ISO so that, by the time of the final hearing, those persons would be better informed to advise the Court about the extent of the permanent restrictions that should be applied during the ESO. In that regard, as I suggested at the hearing, there is some benefit in delaying the final hearing of this case until as late as is practicably possible. The hearing date for the final hearing is the latest date that can reflect my concerns in that regard.
Accordingly, I make the following orders:
Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):
a. Two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 26 October 2018; and
b. The defendant is directed to attend the examinations in order 1a.
Pursuant to section 10A of the Act, the defendant is subject to an interim supervision order from 11 October 2018 for a period of 28 days.
Pursuant to section 11 of the Act, the defendant is directed to comply with the conditions set out in the schedule to this order for the period of the interim supervision order referred to in order 2 above.
The plaintiff to file and serve any evidence for the final hearing by 12 November, 2018.
The defendant to file and serve any additional evidence for the final hearing by 19 November, 2018.
The plaintiff to file and serve submissions on which it relies by 26 November, 2018.
The defendant to file and serve submissions on which he relies by 3 December, 2018.
Any submissions of the plaintiff in reply to be filed and served by 6 December, 2018.
The matter be listed for final hearing on 10 December, 2018 at 10am with an estimate of half a day.
The defendant is to advise the plaintiff which experts and other witnesses are required to attend Court to give evidence at the final hearing by no later than 4pm on 3 December, 2018.
Access to the Court's file by a non-party in respect of any document shall not be granted without prior notification by the Registrar of the Court to the parties of the non-party's application for access, and such access will not be granted without the leave of a Justice of the Court.
Stand over to the Duty Judge's list on 6 November, 2018 to deal with any application to extend the Interim Supervision Order.
Liberty to apply to relist the matter on three days' notice.
SCHEDULE A
CONDITIONS OF SUPERVISION
Part A: Reporting and Monitoring Obligations
Monitoring and Reporting
The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him.
Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.
Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.
Part B: Accommodation
The defendant must live at an address approved by his DSO.
The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.
Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of CSNSW.
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must not go to a place if his DSO tells him he cannot go there.
The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of his DSO.
Part D: Employment, finance and education
If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
The defendant must not start any job, volunteer work or educational course without the approval of his DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.
Part E: Drugs and alcohol
The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.
The defendant is not to possess or consume alcohol, unless approved in advance by his DSO. If consumption of alcohol is approved in advance by the defendant's DSO, the defendant's blood alcohol concentration is not to exceed 0.05%.
The defendant must submit to testing for drugs and alcohol as directed by his DSO.
The defendant must not enter any licensed premises without the prior approval of his DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.
Part F: Non-association
Associations with Others (not children)
The defendant must not associate with people that his DSO tells him not to.
The defendant must not knowingly associate with any people who are consuming or under the influence of illegal drugs.
The defendant must not associate with any people who are consuming or under the influence of alcohol, unless approved in advance by his DSO.
The defendant must not engage the services of sex workers without the prior approval of his DSO.
If the defendant starts an intimate relationship with someone:
a. he has to tell his DSO as soon as possible; and
b. if required by his DSO, he must either:
(i) tell the person of his criminal history; or
(ii) give consent for the DSO to tell the person of his criminal history.
The defendant must obtain approval from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.
Part G: Weapons
The defendant must not possess or use any firearm within the meaning of s 4 of the Firearms Act 1996 or prohibited weapon as defined in s 4 and Schedule 1 of the Weapons Prohibition Act 1998.
The defendant must not have in his possession, at any time he has left his residence, any knife or other cutting instrument, without prior approval from his DSO.
Part H: Access to the internet and other electronic communication
The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately.
Part I: Search and seizure
If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:
a. for the safety and welfare of residents or staff or persons present at the defendant's approved address;
b. to monitor the defendant's compliance with this order; or
c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;
then the DSO may direct, and the defendant must submit to:
d. search and inspection of any part of, or any thing in, the defendant's approved address;
e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;
f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or
g. search and examination of his person.
For the purposes of the above condition:
a. a search of the defendant means a garment search or a pat-down search.
b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.
NOTE:
"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.
"Pat-down search" means a search of a person where the person's clothed body is touched.
During a search carried out pursuant to condition 39 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:
a. the safety of residents or of staff at the defendant's approved address;
b. the welfare or safety of any member of the public or any other person; or
c. the defendant's compliance with this order;
or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 39 to 42 above.
Part J: Access to pornographic, violent and classified material
The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.
Part K: Personal details and appearance
The defendant must not change his name from "Darren Rogers" or use any other name without the approval of his DSO.
The defendant must not use any alias, log-in name, or a name other than "Darren Rogers" or use any email address other than those known to the DSO under condition 34 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
The defendant must not change his appearance without the approval of his DSO.
The defendant must let CSNSW photograph him.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.
Part L: Medical intervention and treatment
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
The defendant is to disclose to the DSO all medications that are prescribed to him by his healthcare practitioners.
The defendant must take all medications that are prescribed to him by his healthcare practitioners.
If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 August 2018
General for New South Wales v Tillman [2007] NSWCA 119
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Texts Cited: Nil
Category: Procedural and other rulings
Parties: State of New South Wales (Plaintiff)
Darren Clarence Rogers (Defendant)
Representation: Counsel:
I Fraser (Plaintiff)
B Kennedy (Defendant)
Legislation
Section 5B of the Act provides:
5B Making of extended supervision orders - unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
Section 5I(2) defines a supervised offender in the following way:
(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision):
(a) while serving a sentence of imprisonment:
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
Section 4 defines serious offence as, relevantly, meaning:
(a) a serious sex offence,
Section 5(1) sets out a number of categories of offences that constitute a serious sex offence. Those categories relevantly include:
5 Definitions of "serious sex offence" and "offence of a sexual nature"
(1) For the purposes of this Act, a serious sex offence means any of the following offences:
(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where:
…
(ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),
The offence for which the defendant was convicted was a count of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act 1900 (NSW). The circumstances of aggravation were that at the time of the commission of the offence the defendant threatened to inflict actual bodily harm on the victim by means of an offensive weapon being a knife. The offence is within Division 10 of Part 3 of the Crimes Act.
Section 5D of the CHRO Act provides:
5D Determination of risk
For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
Although the Act has been re-ordered to some extent since some of the earlier decisions that construed its provisions, what was said in Anderson v State of New South Wales [2016] NSWCA 86 still represents the correct approach. The Court there said:
[14] It suffices in order to summarise and resolve the essential submissions which arise on this appeal to observe that ss 5B and 5D mandate a two stage process. The first question is that posed by s 5B, which is whether the person is a high risk sex offender. This entails the Court being satisfied, to a high standard, that the offender would pose an "unacceptable risk of committing a serious sex offence if he or she is not kept under supervision". Only if the answer to that question is affirmative can there be power to make either a continuing detention order or an extended supervision order.
[15] The second question only arises if the person is a high risk sex offender. It is the question posed by s 5D, which is whether the Court is satisfied that adequate supervision will not be provided by an extended supervision order. If the answer to that question is affirmative, then there is power to make a continuing detention order. (For the purposes of this appeal, we put to one side the separate discretion whether to make a continuing detention order at all, discussed in State of New South Wales v Donovan [2015] NSWCA 280 at [14]-[15].)
[16] There are at least four important differences between the questions posed by ss 5B and 5D. The first two differences flow directly from the text of the statute. One is that the Act requires a different level of satisfaction to be achieved in relation to the first, as opposed to the second. Another is that the second question is only reached in the event that the first question has been answered affirmatively.
[17] A third is that it is established that the test of "adequate supervision" in s 5D is not "anchored" to an assessment of "unacceptable risk", but involves a wider ranging inquiry, including having regard to the secondary purpose of the Act of encouraging rehabilitation: see State of New South Wales v Donovan.
[18] A fourth is that there is a wide range of conditions which could be imposed by an extended supervision order, so that the issue posed by s 5D also involves considering a range of conditions and whether if imposed they would constitute adequate supervision: see Lynn v State of New South Wales [2016] NSWCA 57.
Section 9(2) now provides:
In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
The State of NSW seeks an ISO under s 10A of the Act. That section provides:
10A Interim supervision order
The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Hayter [2007] NSWCA 983 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].