Attorney-General for New South Wales v Aller

1. [1]

   By a Summons filed 28 September 2023 (“the Summons”), the Attorney General for New South Wales (“the plaintiff”), sought final orders in the form an extension of Mr Michael John Aller’s (“the defendant”) status as a forensic patient pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) for a period of three years.

2. [2]

   In accordance with s 126(4) MHCIFP Act, a preliminary hearing has been conducted. At that hearing the plaintiff sought interim relief in the form of (1) the appointment of two qualified psychiatrists or psychologists (or a combination of the two) who are to conduct an examination of the defendant and a direction that the defendant attends those examinations and (2) an Interim extension of the defendant’s status as a forensic patient for a period of 3 months, s 130 MHCIFP Act.

3. [3]

   This judgment concerns those applications for interim relief were under consideration.

4. [4]

   The defendant was 57 years old. He had a lengthy criminal record. His first offence dated back to 1984. His offending comprised multiple convictions for assault (primarily against current and former girlfriends), breaches of apprehended violence orders, offences involving threats of violence, one escape from custody and multiple driving offences.

5. [5]

   On 2 August 2012, the defendant was arrested by police and charged with the offence of murder following his involvement in the death of a woman with whom he had been in a relationship for a period of about 2 months. The defendant was committed to stand trial on that charge.

6. [6]

   On 27 March 2014, an inquiry into the defendant’s fitness to stand trial was held pursuant to the relevant provisions of the now repealed Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Former Act”). Johnson J determined that the defendant was unfit to stand trial.

7. [7]

   Between 1 and 4 December 2014, a special hearing was conducted pursuant to s 19 of the Former Act. On 24 February 2014 Hidden J delivered a judgment on the special hearing. His Honour found that, whilst the defendant had killed the victim, he was at the time substantially impaired by an abnormality of the mind sufficient to warrant the reduction in the charge from murder to manslaughter. The defendant was accordingly acquitted of the offence of murder, but the defendant was found to be, on the limited evidence available, guilty of the offence of manslaughter.

8. [8]

   Following a separate hearing, Hidden J imposed a limiting term of 11.5 years pursuant to s 23 of the Former Act. The limiting term was to date from 1 August 2012 and would have expired on 31 January 2024. However, as a result of a subsequent absence without leave, the Mental Health Review Tribunal (“the Tribunal”) extended the period of the limiting term by one day such that it now expires on 1 February 2024.

9. [9]

   A ”forensic patient” includes, relevantly, a person who has been given a limiting term after a special hearing and who is released from custody subject to conditions under an order made by the Tribunal: s 72(1)(b) of the MHCIFP Act. The defendant’s status as a forensic patient continued following enactment of the MHCIFP Act, Sch 2 Cl 9. He was a forensic patient at the time of the preliminary hearing.

10. [10]

    Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person’s status as a forensic patient (“extension order”). The objects of the MHCIFP Act require the courts to consider, relevantly, the protection of the safety of members of the public and any victims of the forensic patient and acknowledge the harm done to them: s 69.

11. [11]

    In these circumstances, in my view, the defendant properly accepted that the application is made in accordance with the formal requirements of the MHCIFP Act (Div 2 of Pt 6). Similarly, the defendant was correct to accept that, in those circumstances, the Court’s power pursuant to ss 127 and 128 of the MHCIFP Act to make orders of the type sought by the plaintiff has been enlivened.

12. [12]

    The threshold pre-conditions having been met, the Court is required to determine whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order” (s 126(5) of the MHCIFP Act) and, if so satisfied, the Court must make orders appointing two qualified psychiatrists or psychologists (or a combination of the two), to conduct an examination of the defendant (and a corresponding direction that the defendant attend those examinations). As it is likely that the current order may expire prior to the final hearing, the Court may make interim orders extending the defendant’s status as a forensic patient.

13. [13]

    The making of an extension order would be justified in the event the Court was “satisfied to a high degree of probability that”:

14. [14]

    I do not canvas the relevant principles in determining this application which appear to be adequately set out in the submissions for the plaintiff. I do accept, however, that the Court has observed that the terminology, used by the MHCIFP Act, “mirrors very closely” the terminology for applications for extension orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the HRO Act”), and as such the ‘learning that has grown up in relation to the HRO Act should be applied to applications of the present type: Attorney General for NSW v McGuire [2013] NSWSC 1862, at [7] and [12].

15. [15]

    The question of whether the defendant poses an ‘unacceptable risk’ is an evaluative determination (Lynn v State of NSW [2016] NSWCA 57 per Beazley P (at [61], Gleeson JA and Basten JA (in separate reasons, agreeing)), and, “involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (Wilson J at [71]).

The Position of the Defendant

1. [16]

   The overall position of the defendant was that provided the Court was independently satisfied to the requisite standard that such orders should be made, the defendant did not resist the making of orders of the type sought by way of interim relief. In doing so the defendant reserved his right to oppose orders as sought in prayer 3 of the Summons at any subsequent final hearing.

Assessment of risk

1. [17]

   Both parties relied upon various matters referred to in s 127(2) of the MHCIFP Act. I followed the same course but with much greater brevity than the detailed submissions provided by the parties given their concurrence.

Safety of the community

1. [18]

   As earlier mentioned, the defendant had an extensive criminal history, which included numerous acts, or threats of, violence against women. That offending was often characterised by harassment, intimidation and threats as well as actual physical violence against the defendant’s partner at the time or to others associated with her. The threats made by the defendant included threats to kill.

2. [19]

   It is of note that the majority of the offending appears to have occurred when the defendant was in a state of intoxication. In that regard, it is noted that the defendant has been diagnosed as having a substance abuse disorder currently in sustained remission. The conditions of the current supervised release order include that he is to abstain from all use of alcohol and illicit substances.

3. [20]

   The index offending occurred in 2012 when the defendant was 46 years old.

4. [21]

   On 31 July 2012, the defendant stabbed his girlfriend repeatedly with a kitchen knife during an argument. She was 31 years old. She had a pre-existing disability which meant she was paralysed in her left arm.

Risk assessment report of registered psychiatrist

1. [22]

   A Risk Assessment Report was provided by Dr Andrew Ellis, Forensic Psychiatrist, dated 2 July 2023. He also provided a follow up email, after reviewing some more recent evidence, on 22 July 2023.

2. [23]

   Dr Ellis assessed the defendant at the Community Mental Health Service in Orange on 7 June 2023 for 2.5 hours. Dr Ellis also spoke with Ms Jeanette Prior, a Registered Nurse Consultant, who has known the defendant since 2019. Ms Prior reported that the defendant’s discharge had been going well and that his urine drug screens have all been clear since his release. However, she stated that “he would benefit from further supervision under the forensic order” as his diagnosis is not necessarily clear and that if he ceased being a forensic patient, it was unlikely that the local health district would be able to provide him with the same level of service that he is currently receiving.

3. [24]

   Dr Ellis noted that there had been differing opinions as to the defendant’s diagnosis in the past but that, by September 2014, the defendant was considered to have treatment resistant psychotic symptoms of schizophrenia. Dr Ellis then detailed the treatment of the defendant with anti-psychotic mediation which had in recent times been reduced and/or discontinued.

4. [25]

   The defendant’s history of substance abuse was noted which included his stated consumption of one bottle of bourbon and 12 bottles of beer on a daily basis at the time of the index offence. The defendant had subsequently completed treatment programs with regards to substance abuse.

5. [26]

   Dr Ellis also considered the observations of those treating the defendant.

6. [27]

   Dr Ellis opined that the defendant met the criteria for substance use disorder in sustained remission. With regards to other conditions, he indicated that it was most likely that the defendant suffered from both a personality disorder and a cyclical mental disorder such as bipolar disorder. Dr Ellis expressed concerns that there had been a recent onset of what he called “hyper-religious concerns” which had not been evaluated by other clinicians.

7. [28]

   Having considered all information available to him, Dr Ellis expressed the following by way of opinion:

Any other report of a qualified practitioner provided in support of the application

1. [29]

   In the plaintiffs written submissions a detailed summary of various reports of psychologists, psychiatrists and case managers was provided, including reports of:

   1. (1)

      Dr Pieter van Rensburg dated 12 April 2022;

   2. (2)

      The NSW Community Forensic Mental Health Service (“CFMHS”) dated 28 April 2022 and 12 April 2023 (Mr Jordan Rivkin, Clinical Psychologist, and Dr Paul Read, Forensic Psychiatrist);

   3. (3)

      Dr Nicholas Burns dated 9 September 2022 and 29 March 2023;

   4. (4)

      Christopher Bromley, Acting Case Manager, dated 30 September 2022 and Mental Health Risk Assessment dated 9 September 2022;

   5. (5)

      Dr Jordan Rivkin dated 6 October 2022 (CFMHS), and;

   6. (6)

      Janette Prior, Registered Nurse and Forensic Mental Health Nurse, dated 5 April 2023.

2. [30]

   As a general proposition, the defendant’s submission regarding these reports, namely, that the defendant was compliant with and actively engaged in treatment, may be accepted. However, those assessments are made in the context of the defendant’s current treatment regime and particular attention needs to be given to the significant possibility of an allegation of risk should the present level of treatment cease.

Any order or decision made by the Tribunal relevant to the application

1. [31]

   The plaintiff’s submission in this respect was not the subject of dispute and provides a detailed and useful account of the relevant history after March 2014. That history, without footnotes, is as follows:

2. [32]

   I note additionally, in this respect, the reliance by the defendant upon the fact that the Tribunal must not make an order for the release (including conditional release) of a forensic patient, unless it is satisfied that the safety of the patient or any member of the public will not be seriously endangered by the patients release, s 84(2) MHCIFP Act.

Level of compliance with obligations while a forensic patient

1. [33]

   The defendant has been a forensic patient since 2015.

2. [34]

   As noted above, the defendant absconded from the MSU on 15 June 2020 when he was on unsupervised leave in Orange. He went to Cowra, drank a bottle of bourbon and stayed overnight in a hotel. He was apprehended the next day and returned to the MSU.

3. [35]

   Otherwise, the defendant has been consistently reported as being compliant with and actively engaged in treatment.

The views of the court that imposed the limiting term at the time the limiting term was imposed

1. [36]

   In his verdict at the special hearing, Hidden J described the offending [at 5] in the following terms:

2. [37]

   When imposing the limiting term his Honour said at [14]:

3. [38]

   Plainly, the index offence is very serious and must have implications for the assessment of risk.

Assessment of first limb: unacceptable risk

1. [39]

   The defendant’s past conduct included a consistent pattern of violence against his intimate partners.

2. [40]

   I agree with the submission of the plaintiff that the defendant’s past conduct indicates that the risk of harm that the defendant poses to others is the risk of him committing violence against female partners.

3. [41]

   Dr Ellis stated that the defendant suffered from a substance use disorder, personality disorder and bipolar disorder. Dr Ellis also believed that the defendant “would fall into a group of persons with a risk offending and serious harm that is high, and greater than a theoretical average offender, forensic patient or psychiatric patient”.

4. [42]

   It is true that Dr Ellis agreed with the defendant’s treating team and the psychiatrists from the CFMHS that the likelihood of the defendant’s committing future episodes of reactive aggression against partners is currently low due to his current treatment and supports. However, Dr Ellis and the defendants treating team agree that there could be a rapid elevation of risk without his current living circumstances and support or if he engages in any other destabilising activities.

5. [43]

   In the absence of protective measures, I accept the submission of the plaintiff that the gravity of the defendant causing violence against any female partners would be high, based on his index offending. The consequences would be severe.

6. [44]

   I am satisfied to the requisite standard for the purposes of the preliminary hearing, and based upon the material before the Court, that the defendant would, if that evidence was sustained, pose an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.

Assessment of second limb: adequate management by less restrictive means

1. [45]

   Dr Ellis states that the defendant is ineligible to be treated as an involuntarily patient under the Mental Health Act 2007 (NSW) as he is not a “mentally ill person”. He is also not subject to any guardianship orders.

2. [46]

   If the defendant were no longer a forensic patient, then the only form of supervision that could remain is the compulsory treatment orders that can be made under a Community Treatment Order, but Dr Ellis does not think that would be sufficient to manage his risk.

3. [47]

   Dr Ellis considered that the defendant needs indefinite outpatient treatment with hospitalisation at times and careful monitoring by experienced forensic mental health staff and that the most effective way of achieving this and managing his risk is if he remains a forensic patient.

4. [48]

   The defendant’s treating team agree that he should continue to be managed in the community under the conditional release order – which is only possible if he remains a forensic patient.

5. [49]

   Again, for the purposes of the preliminary hearing, and so far as the evidence presently permits, there is a proper basis for concluding there is no less restrictive means of adequately managing the defendant’s risks at this time, save for an extension order resulting in the defendant remaining a forensic patient. This should ensure that his treatment is properly managed.

Conclusion

1. [50]

   In the circumstances, I am satisfied that the evidence, if proved, would meet the test in s 122 of the MHCIFP Act and thereby justify the making of a further extension order. An interim order should be made.

2. [51]

   To promote the objects of the MHCIFP Act (s 69) and, in particular, to facilitate the ongoing care and treatment of the defendant, I direct that the Registrar forward a copy of the report of Dr Andrew Ellis dated 2 July 2023 to the Tribunal.

Orders

1. [52]

   The Court makes the following orders:

   1. (1)

      An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020:

   2. (2)

      An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing on 1 February 2024 for a period of three months.

   3. (3)

      I direct that the Registrar forward a copy of the report of Dr Andrew Ellis dated 2 July 2023 to the Tribunal.