Attorney General of NSW v Collings (Preliminary)

By summons filed on 30 January 2024, the State of New South Wales (“the State”) seeks an order that Maurice Collings’ status as a forensic patient be extended for a period of three years. That order is sought pursuant to the provisions in ss 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”). At this stage, the State only seeks interim orders pursuant to ss 126, 130 and 131, as well as an ancillary order relating to access to the court file.

Mr Collings is represented by counsel and has a tutor, Mr Tri Tran, who accepted an invitation to act as his tutor in the course of these proceedings and in earlier related proceedings. Mr Collings neither consents to nor opposes the making of the interim orders sought in prayers 1, 2 and 4 of the summons. However, he reserves his right to contest the final relief, which is identified in prayer 3 of the summons. Put in simple terms, there is no opposition to the making of the interim orders. Even so, the formal requirements under the Act must be satisfied and, what I will refer to in shorthand as the “risk assessment” provided for in the Act must be undertaken by the Court.

On the material tendered this morning, the interim and interlocutory orders should be made and the ancillary relief granted. I will now provide brief reasons for that conclusion.

The background and circumstances by which Mr Collings is currently a “forensic patient”, as that expression is used or defined in the Act, can be stated quite briefly.

Mr Collings was found unfit to be tried by Wilson SC DCJ in the District Court on 9 September 2022. At that stage, he was charged with an offence of wounding with intent to cause grievous bodily harm, an offence under s 33(1)(a) Crimes Act 1900 (NSW), following an incident on 1 July 2021 where he allegedly attacked the manager of a caravan park with a claw hammer.

There was then a special hearing conducted by Bright DCJ which commenced on 21 August 2023. Her Honour delivered a comprehensive judgment on 25 August, which is part of the material now before the Court. Her Honour found that the offence under s 33(1)(a) of the Crimes Act to be established on the limited evidence available. On 4 October 2023, Bright DCJ fixed a limiting term of two years and eight months. Mr Collings has been in custody since he was charged. The limiting term was backdated until 1 July 2021 and accordingly will expire on 29 February 2024.

The limiting term expires 13 days from today. Bright DCJ made the usual orders referring Mr Collings to the Mental Health Review Tribunal (“the Tribunal”). I have access to the records of various reviews made by the Tribunal since then. The most recent review was on 15 December 2023, when it was concluded that there was no evidence that Mr Collings is now fit to be tried and the Tribunal was of the view then, that he remained unfit.

Dr Furst provided two psychiatric reports dated 13 and 21 December 2023, which explained Mr Collings' mental health issues. There are also a number of other reports which have been prepared over the course of the last couple of years, including some quite recent reports. Those reports are set out in an agreed memorandum of facts and include:

Without going into the diagnostic criteria, the mental health and personal history of the defendant, or the finer details of the report, Dr Furst's opinion, which seems to be universal or universally held by those who have interacted with Mr Collings, is that he has schizophrenia. There is also some deficit in his cognitive function identified in the material. However, the decline in his cognitive function appears to have occurred with the onset of his schizophrenic disease and, according to Dr Furst, it might be expected to improve with the treatment of schizophrenia.

Dr Furst expressed the opinion that Mr Collings has a mental illness and, further, that he poses a risk of causing serious harm to others if he ceases to be a forensic patient.

Section 121 of the Act provides that the Supreme Court may make an order for the extension of a person's status as a forensic patient. Section 122 sets out the matters which the Court must be satisfied before making such an order:

Sections 124-126 provide the formal requirements for the application, as well as the pre-trial procedures to be followed. Section 126(5) sets out the availability of the type of interim order sought in prayer 1 of the summons, that is to say, the appointment of qualified psychiatrists to provide the Court with opinions for the final hearing, and a requirement or order that the defendant attend on those psychiatrists for examination. Section 125 of the Act sets out the formal requirements with respect to what the application must include by way of supporting documentation.

The formal pre-requisites required by the Act for the application have been satisfied and are met. The application has been made within the relevant timeframes provided, in an appropriate form and with the necessary supporting documentation.

Section 130 of the Act provides for the availability of an interim extension order to cover the period from the expiration of the limiting term to the final hearing of the application:

The section requires the Court to undertake a predictive exercise concerning the outcome of the final hearing which, in turn, brings into play the statutory test under s 122. The level of certainty required by the phrase "high degree of probability", and the way the “unacceptable risk” test operates, has been considered in a large number of cases both in this Court at first instance and in the Court of Appeal. It has also been considered under both the present legislation and its predecessor, as well as under similar legislation in similar if not identical terms, which is concerned with high risk violent and sexual offenders.

I have considered the facts of the offence which led to the special hearing and the findings made, albeit on limited evidence, by Bright DCJ. If accepted, this was a savage and seemingly irrational attack. Against that, Mr Collings has a fairly limited criminal history and only two past offences of violence, one of which was nearly two decades ago. The psychiatric evidence satisfies me, at this interim stage, that the recent offences of violence are closely connected to the onset of his mental illness identified by Dr Furst.

Having considered all the material, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. Which is to say that the court hearing the final application may be satisfied to a high degree of probability that Mr Collings poses an unacceptable risk of serious harm to others, and that risk cannot be adequately managed by less restrictive means.

Accordingly, I propose to make the following orders sought in the summons: