NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR STATE OF NEW SOUTH WALES V/S TODD DEVANEY CASE

Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 16:

1. By summons filed on 4 December 2024 the plaintiff, the State of New South Wales, seeks a second extended supervision order ("ESO") under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (the "Act") against the defendant, Mr Todd Devaney. Unless otherwise specified, all references to legislative provisions in this judgment are references to the Act.

2. I conducted the required preliminary hearing under s 7 earlier today. The purpose of the preliminary hearing is to determine whether I am satisfied that the matters alleged in the supporting documentation filed in evidence by the State would, if proved (at a final hearing), justify the making of an ESO: s 7(4). If I am so satisfied, I am required to make orders for the appointment of two experts, either psychiatrists, psychologists or a combination of both, to examine the defendant, report to the Court and to give evidence at the final hearing, if required. I must also order that Mr Devaney attend those examinations.

3. Apart from orders under s 7(4), the State seeks interim relief under s 10A by way of an interim supervision order ("ISO"). Under that provision I have a discretion to make the order if two conditions are satisfied. The first condition is that the defendant's current, in this case, supervision, will expire before the proceedings are determined. The second condition is to the same substantial effect as the s 7(4) condition to which I have already made reference. That is, that the matters alleged in the supporting documentation would, if proved (at a final hearing), justify the making of an ESO.

4. As I have said, this is an application for a second ESO which is permitted under s 10(3). The first ESO to which the defendant is currently subject was made by Dhanji J on 4 February 2022: State of New South Wales v Devaney (Final) [2022] NSWSC 60 ("Final Judgment"). His Honour's order was for a period of three years and expires at the end of 3 February 2025. His Honour also, as is necessary, made orders under s 11 specifying the conditions with which Mr Devaney must comply during the currency of the ESO.

5. Returning to the provisions of s 10A, the first condition to which I have referred is clearly satisfied. This is the last week of the law term for 2024 and the summons was filed only on 4 December 2024. As Mr Devaney's current supervision will expire at the end of 3 February 2025, it is clear beyond argument that his supervision will expire before the proceedings for the principal relief have been determined. The focus of this judgment will be on whether the facts alleged in the documentation attached to the State's evidence justifies the finding to which I have referred.

6. I should say that s 6 prescribes formal requirements for an application for an ESO. There was no issue before me that those formal requirements are satisfied in this case. however, it is well to say that the documentation to which I am referring is the documentation referred to in s 6(3). That includes material which addresses the mandatory requirements of s 9(3) for the making of an ESO, and also a risk assessment report ("RAR"), prepared by a qualified psychologist in this case, which assesses the likelihood of Mr Devaney committing a serious offence. In Mr Devaney's case a serious offence is a reference to a serious violence offence: s 4(1). The RAR in this case was prepared by Mr Sam Ardasinski, a senior psychologist employed by Corrective Services New South Wales ("Correctives NSW") dated 18 November 2024.

7. I interpolate that it is often the case that a preliminary judgment of this type requires a detailed review, and to some extent analysis, of the supporting documentation for the purpose of s 10A(b), on the one hand, and s 7(4), on the other. Generally, that type of detailed review of the material is undertaken when an application is first made for an ESO in respect of a particular offender. The requirement of a full review of all the material in my opinion is substantially reduced in the case of second or subsequent applications and I have had the benefit of considering, not only the final judgment of Dhanji J, but also his Honour's preliminary judgment when the matter first came before him in November 2021: State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432 ("Preliminary Judgment").

8. In those circumstances, rather than replicating or rehearsing all of the ground covered by his Honour in his judgments, it is a sufficient discharge of my judicial duty if I address what appear to me to be the significant issues between the parties in respect of whether an ISO can, and should, be made in this case. In this regard I have been greatly assisted by the written submissions prepared by Mr Aitken of learned counsel for the plaintiff and by Mr Wilcox of learned counsel for the defendant.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d13dcf21b992f70e3f03a)

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