State of New South Wales v Tillman [2008] NSWSC 1229 | Case summary

JUDGMENT (on application for interim supervision order) 1 JOHNSON J: By Summons filed on 13 October 2008, the Plaintiff, the State of New South Wales, makes a further application for orders in relation to the Defendant, Kenneth Davidson Tillman, under the Crimes (Serious Sex Offenders) Act 2006 ("the Act"). The Defendant is currently in custody pursuant to a continuing detention order under the Act. The order, which was originally made by Bell J on 18 June 2007 for a period of 12 months, was extended by Hoeben J on 11 April 2008, by consent, to this Friday, 31 October 2008. 2 The history of earlier proceedings concerning the Defendant may be found in the judgment of Bell J in Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 and in two judgments of the Court of Appeal - Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 and Tillman v The Attorney General for the State of New South Wales [2007] NSWCA 327. 3 The final relief sought by the Plaintiff on the present application is that the Defendant be subject to an extended supervision order for a period of five years. 4 On 17 October 2008, Hoeben J listed the Summons for preliminary hearing today. On this interlocutory application, the Plaintiff seeks orders that two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the Defendant and furnish reports to the Court on the results of those examinations, and that the Defendant be directed to attend those examinations: s.7(4). The Plaintiff also seeks an interim supervision order in respect of the Defendant pending final determination of the application: s.8(1). 5 Written submissions have been provided to the Court today by counsel for the Plaintiff and the Defendant. Those submissions have been of considerable assistance to the Court. Counsel for the Defendant, Mr Johnston, accepts for the purposes of the preliminary hearing, that the Court is likely to be satisfied that the matters alleged in the supporting documentation, if proved, would justify making an extended supervision order: s.7(4). On this basis, the Defendant consents to an order under s.7(4) for the appointment of two qualified psychiatrists to conduct separate psychiatric examinations and for the Defendant to accept any reasonable directions to attend such examinations. The Defendant understands that the Plaintiff is seeking an interim supervision order under s.8 of the Act, and that the Court may make an interim supervision order for a period of 28 days. The Defendant does not object to this course. In taking this approach to this preliminary hearing, the Defendant, understandably, makes no concession concerning the position that may be adopted by him at the final hearing. 6 Given the position of the parties at this hearing, it is possible to deal directly and relatively briefly with the matters which fall for determination. As will be seen, the real issue addressed by counsel at the hearing concerned the appropriateness of certain conditions proposed by the Plaintiff . 7 The objects of the Act and the principles concerning the construction and operation of the Act are summarised, helpfully, in the written submissions of the Plaintiff, which will remain with the file. It is sufficient to note, for present purposes, that I accept the summary of the relevant principles as set out at paragraphs 4 to 8 of those submissions. That summary reflects the function of this Court in the discharge of an application for an interim order under the Act. 8 The written submissions of the Plaintiff refer, in some detail, to statutory criteria which must be addressed at the final hearing under s.9(3) of the Act, and which must be considered by a Court on an application for an interim order under s.8 of the Act. 9 I express the conclusion that the supporting documentation provided to the Court on this application satisfies the statutory requirements for the purposes of an application for an interim order. 10 The written submissions of the Plaintiff outline the history of the proceedings, including the judgment of Bell J to which I have made reference. It is not necessary, for the purpose of this judgment, to repeat the matters found by her Honour. It is pertinent to observe, however, that a substantial part of the hearing before her Honour in 2007 was concerned with the fact that the Defendant had not, up to that time, undertaken the CUBIT programme, the intensive live-in treatment programme for high risk sex offenders conducted by the Department of Corrective Services. 11 The material before the Court on the present application establishes, however, that the Defendant has participated in the CUBIT programme this year. 12 There is before the Court, on the present application, more recent psychiatric and psychological material. I will refer to it briefly. A report of Dr Anthony Samuels, psychiatrist, dated 24 September 2008 is annexed to an affidavit of Dr Samuels affirmed 9 October 2008. It addresses, amongst other things, the Defendant's criminal history and pattern of offending relevant for the purpose of s.9(3)(h) of the Act. Dr Samuels, in reciting the Defendant's prior criminal history, points to aspects of that history which he says support his ultimate opinion that there is a real risk that the Defendant will re-offend sexually without supervision under the Act. 13 I should mention that the Court has been informed that there are outstanding criminal charges against the Defendant at present. These charges relate to alleged offences said to have been committed in 1995 against a person then 14 years old. It appears that the Defendant was charged with these matters in 1997, but was discharged at committal in 1998 after the complainant failed to attend the committal hearing. Charges have been laid against the Defendant alleging two counts of aggravated sexual assault and one count of attempted aggravated sexual assault and two counts of assault occasioning actual bodily harm. The Court has been informed that the charges have been stood over to 11 November 2008 and no application has been made by the Defendant for bail. Counsel for the Defendant has foreshadowed that a bail application will be made in the Supreme Court seeking bail for the Defendant, which would remove an impediment to his release on an interim supervision order. 14 My present function is to consider the Plaintiff's application under the Crimes (Serious Sex Offenders) Act 2006. Any application for bail by the Defendant will be considered at a later date by reference to the Bail Act 1978. I mention the currency of these other charges, however, as their existence is relevant to the present application, at least in so far as there is an unresolved allegation of sexual offences against the Defendant. 15 The Plaintiff's written submissions address other aspects of the statutory criteria under s.9, including the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the Defendant committing a further serious sex offence (s.9(3)(d)), the results of any other assessment prepared by a qualified psychiatrist or psychologist as to the likelihood of the Defendant committing a further serious sex offence and his willingness to participate in an assessment and the level of his participation in such an assessment (s.9(3)(c)), any treatment or rehabilitation programmes in which the Defendant has had an opportunity to participate and his willingness to participate in these programmes and the level of his participation (s.9(3)(e)), the level of the Defendant's compliance with any obligations for which he has been subject while on parole or while subject to an earlier extended supervision order (s.9(3)(f)), and the safety of the community (s.9(3)(a)). 16 In addition to the September 2008 report and October 2008 affidavit of Dr Samuels, there is before the Court a report dated 23 May 2008 of Ms Kate Harle, psychologist with the Department of Corrective Services, and other materials including a report of Mr Rodriguez and Dr Ellis dated 11 April 2008, and a memorandum of 10 October 2008 of Ms Joanne Senior, a specialist psychologist with CUBIT. The last-mentioned report, in particular, addressed the Defendant's undertaking and completion of the CUBIT programme. 17 I have regard to all the evidence placed before the Court on the present application. I am satisfied that an interim supervision order should be made for the purpose of s.8 of the Act. I am satisfied that certain conditions should be fixed as part of that interim supervision order. 18 There has been debate on the application with respect to two areas of conditions. Firstly, proposed condition 13 (as contained in a schedule annexed to the Summons) sought a condition that the Defendant not leave the Sydney metropolitan area without the written permission of the Commissioner of Corrective Services. I am satisfied that, for the purpose of this interim order, a condition ought be fixed which will provide that the Defendant must not leave the area defined by borders marked on a map attached to the schedule of conditions without the written permission of the Departmental supervising officer. Condition 13, in the form in which it will be made, adds certainty as to geographic location and requires permission from the Departmental supervising officer, before the Defendant may leave the area of the Sydney metropolitan area marked by the borders on the map. 19 The second area of controversy with respect to conditions concerned proposed conditions 33 to 35. Those conditions (as contained in the schedule annexed to the Summons) sought that the Defendant waive his rights to confidentiality of all information disclosed by him during treatment to his treating doctors and any psychologist and that he consent to that material being accessed or shared in accordance with proposed conditions 34 and 35. 20 It will be apparent that a somewhat unusual factor in this case is that the Defendant has pending, in the criminal courts, a prosecution for alleged offences said to have been committed in 1995. It is reasonable that appropriate safeguards be built into conditions 33, 34 and 35 to ensure that there is no compromise of the Defendant's legal rights and privileges with respect to his conduct of those outstanding criminal charges. 21 In those circumstances, senior counsel for the Plaintiff proposed a variation to conditions 33, 34 and 35 to carve out an exception by reference to information relating to the outstanding criminal charges. Such an exception is, in my view, reasonable. 22 Mr Johnston sought that a further exception be made concerning any information relating to the physical or sexual abuse of the Defendant whilst in custody, a topic not said to be related to the outstanding criminal charges. I am not satisfied that it is appropriate that an additional exception be created for the purpose of conditions 33 to 35 to include that subject matter. That topic seems to relate to the possibility of some future (civil) proceedings which may arise from events which have occurred in the past. On this application, I am not prepared to separate off that topic. If there is some issue which arises with respect to this topic at a later time, no doubt it can be revisited then. 23 I propose to make a number of orders which will, in so far as it is possible to do so today, advance the present proceedings. For that purpose, I will utilise the short minutes of order in the form preferred by the Plaintiff. I will attach the copy of the map to the back of the orders. 24 The orders which I will make will be in terms of 1, 2, 3 (as amended), 5 and 6 of the short minutes of order. I make the following orders:

State of New South Wales v Tillman

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Judgment (17 paragraphs)

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