Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

The meaning of 'likely' in s 17(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) is not restricted to 'more probable than not' but denotes a degree of probability at the upper end of the scale, not necessarily exceeding 50%, consistent with the construction adopted by the Victorian Court of Appeal in TSL. The principle of comity requires the Court to follow TSL unless plainly wrong. On the facts, the requisite degree of satisfaction for a continuing detention order was met.

Parties
Claimant/appellant: Kenneth Davidson Tillman; Opponent/respondent: Attorney General for the State of New South Wales
Jurisdiction
Australia
Judgment Date
26 November 2007
Procedural Posture
Application for Leave to Appeal and Appeal From Order of Supreme Court (common Law Division) Under the Crimes (serious Sex Offenders) Act 2006 (nsw) / Judgment on Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
Continuing Detention Orders, Extended Supervision Orders, Likelihood of Reoffending, Standard of Proof, Comity Between Jurisdictions
Criminal Law Statutory Interpretation Courts and Judicial System Continuing Detention Orders Extended Supervision Orders Likelihood of Reoffending Standard of Proof Comity Between Jurisdictions

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Parties

Kenneth Davidson Tillman

Claimant/appellant

Attorney General for the State of New South Wales

Opponent/respondent

Procedural Posture

Application for Leave to Appeal and Appeal From Order of Supreme Court (common Law Division) Under the Crimes (serious Sex Offenders) Act 2006 (nsw) / Judgment on Appeal

Legal Issues

  1. 1 Meaning of 'likely' in s 17(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW): does it mean 'more probable than not' or denote a high degree of probability not necessarily exceeding 50%?
  2. 2 Whether principle of comity requires intermediate appellate courts to follow decisions of other Australian jurisdictions on substantially similar legislation.
  3. 3 Whether the trial judge was correct on the facts in determining the statutory criteria for a continuing detention order were satisfied.

Ratio Decidendi

The meaning of 'likely' in s 17(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) is not restricted to 'more probable than not' but denotes a degree of probability at the upper end of the scale, not necessarily exceeding 50%, consistent with the construction adopted by the Victorian Court of Appeal in TSL. The principle of comity requires the Court to follow TSL unless plainly wrong. On the facts, the requisite degree of satisfaction for a continuing detention order was met.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • Leave to appeal granted.
  • Appeal dismissed.