Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2)

1. [1]

   THE COURT: The Attorney General for New South Wales (the appellant) appeals against the refusal by Coleman J (the primary judge) to extend the status of Mr Dale Haines (the respondent) as a forensic patient pursuant to Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). Section 122(1) of the Act (which is contained in that Part) gives the Supreme Court power in certain circumstances to extend a person’s status as a forensic patient if it is satisfied to a high degree of probability that the person poses an unacceptable risk of causing harm to others which cannot be adequately managed by other less restrictive means.

2. [2]

   The respondent also applies for review of the interim extension order made by Kirk JA on 20 October 2025 extending his status as a forensic patient for the period from 20 October 2025 to 19 December 2025: Attorney General for New South Wales v Haines (BHT Barbara Ramjan) [2025] NSWCA 231. It was common ground that, if the interim extension order is invalid, the respondent is no longer a forensic patient and the appeal has no utility.

3. [3]

   All references to legislation in these reasons are, unless otherwise stated, references to the Act.

Background to the proceedings

1. [4]

   The respondent, who was born in 1981, suffered a traumatic brain injury when he was about 20, which led to significant cerebral dysfunction with compromised frontal and temporal lobe function. Not long afterwards, the respondent was first diagnosed with schizophrenia and drug-induced psychosis following attempted self-harm. It was reported that the respondent tried to cut his own throat while he was subject to a delusion that his head would grow back. His psychotic illness was complicated by regular cannabis and methamphetamine use and periods of non-compliance with anti-psychotic medication.

2. [5]

   During his twenties, the respondent was convicted of offences, including armed robbery and assault occasioning actual bodily harm and possession of prohibited drug for which he was sentenced to periods of imprisonment. On 4 January 2011, the respondent was released to parole. At about this time, he was on a Community Treatment Order (“CTO”) towards the end of 2010. In June 2011 it was reported that the respondent had been compliant and attending to have his fortnightly injection notwithstanding a positive urinalysis and concerns regarding his mental health by his Community Correction Officer at the time. In July 2011, his CTO was extended for a further 6 months. During October 2011, the respondent failed to attend his appointments. His CTO was due to expire on 13 January 2012 but an application for an extension was submitted. Although the respondent appeared compliant with his CTO, concerns were noted about his compliance with his oral medication. In February 2012, he was admitted as an involuntary patient to a mental health unit in Liverpool Hospital where he remained for several months before he was discharged on a CTO.

3. [6]

   Between 26 June 2014 and 25 September 2014, the respondent committed five armed robberies to obtain money for prohibited drugs. On 25 September 2014, he was arrested and charged with five offences of armed robbery (of service stations in Merrylands, Smithfield and Fairfield and the Umina branch of the Westpac Bank), one offence of face disguised with intent to commit robbery, one offence of robbery and one offence of assault occasioning actual bodily harm. He was refused bail. In December 2015 he was assessed under the predecessor to the Act. The Mental Health Review Tribunal (the Tribunal) determined that he was unfit to be tried.

4. [7]

   As a consequence of the Tribunal’s determination, the respondent’s trial proceeded by way of special hearing before English DCJ who found the respondent guilty of these offences. On 15 May 2017 her Honour imposed a limiting term of 7 years and 7 months commencing on 25 September 2014 and expiring on 24 April 2022. The effect of this order was that the respondent was subject to the Tribunal’s control.

5. [8]

   On 4 September 2017 the Tribunal ordered that the respondent be transferred to and detained at the Forensic Hospital for care and treatment as soon as a bed became available.

6. [9]

   The respondent’s status as a forensic patient was extended by an interim order for 3 months made on 14 April 2022, which commenced on 24 April 2022: Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458 (Lonergan J). On 8 July 2022, Yehia J extended the respondent’s status as a forensic patient pursuant to s 121 for a period of three years commencing on 24 July 2022: Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930.

7. [10]

   On 30 January 2023, the Tribunal ordered that the respondent may be absent from the Forensic Hospital for escorted day leave at the discretion of the Medical Superintendent. On 4 October 2023 the Tribunal ordered that he be detained at Bloomfield Hospital for care and treatment and may be absent from Bloomfield Hospital to participate in escorted day leave at the direction of the Medical Superintendent. On 21 February 2024, the Tribunal ordered that the respondent may be absent from Bloomfield Hospital for unsupervised day leave at the discretion of the Medical Superintendent. On 22 October 2024, the Tribunal varied the order to include overnight leave at supported independent living accommodation. On 14 May 2025, the Tribunal granted the respondent conditional release to reside at supported independent living accommodation.

The proceedings in the Court below

1. [11]

   On 11 April 2025 the appellant commenced proceedings in the Supreme Court (the Court below) for an order extending the respondent’s status as a forensic patient. As the existing extension order was due to expire on 24 July 2025, the appellant applied for an interim extension order, which was granted by Harrison CJ at CL on 22 July 2025: Attorney General of New South Wales v Haines (Preliminary) [2025] NSWSC 774. The interim extension order commenced on 24 July 2025 and was due to expire on 24 October 2025. On 22 July 2025, his Honour also made orders for the appointment of two psychiatrists who were to conduct separate examinations of the respondent and provide reports to the Court by 24 September 2025. This order was varied by consent on 5 August 2025 to permit the appointment of a psychiatrist and a psychologist, as occurred. Reports were obtained from Dr Gordon Elliott, psychiatrist, and Dr Carollyne Youssef, forensic and clinical psychologist.

2. [12]

   On 27 August 2025, Yehia J made orders by consent which included an order that the parties were to notify each other if any witness was required for cross-examination. The respondent neither adduced evidence nor notified the appellant that either of the court-appointed experts was required for cross-examination. The parties filed written submissions in advance of the hearing.

3. [13]

   The hearing before the primary judge took place on 1 September 2025. The appellant read two affidavits which exhibited relevant documents (relating to the respondent’s criminal and forensic history). There was no objection to that evidence. The appellant also tendered the reports of Dr Elliott and Dr Youssef, neither of whom was required for cross-examination or was available for questioning by the primary judge. The position of the parties on this question was made clear by the appellant’s counsel at the commencement of the hearing of the application before the primary judge. At the end of the hearing, the primary judge reserved his decision, which was delivered on 26 September 2025. His Honour dismissed the summons and ordered the appellant to pay the respondent’s costs.

4. [14]

   The primary judge described the respondent’s history of alcohol and substance use from his teenage years ([10]); his diagnosis of chronic schizophrenia and substance use disorder ([11]); and his criminal history commencing in 1999 when the respondent was 18 ([12], [14]-[17]). Since 2016, the respondent has been medicated with an oral antipsychotic medication, Clozapine. He has a history of non-compliance but has been compliant recently, including since he was transferred to supported independent living accommodation ([13]).

5. [15]

   When addressing the expert reports of Dr Elliott and Dr Youssef, his Honour said at [37] (this paragraph is challenged in ground 1a):

6. [16]

   The primary judge noted that Dr Elliott conducted a psychiatric assessment of the respondent over an Audio-Visual Link (AVL) for a period of 80 minutes on 12 August 2025 ([38]), in the course of which he administered the Historical Clinical Risk Management-20, Version 3: [45]. Dr Elliott noted the respondent’s “apparent history of poor compliance with oral medication while on a [CTO], though he appeared to have been compliant with depot administration”: [46]. The primary judge noted, at [44], that although Dr Elliott was of the view that the respondent had a mental illness, he did not consider him to be “mentally ill” within the meaning of the Mental Health Act 2007 (NSW).

7. [17]

   The primary judge summarised Dr Elliott’s views as follows:

8. [18]

   His Honour noted Dr Elliott’s view that the respondent’s risk could be managed “by a combination of … existing care, treatment and support and with a CTO” and that “the [respondent] did not continue to pose an unacceptable risk of serious harm given his compliance with his current care and treatment”: [54]. Further, the primary judge noted that Dr Elliott’s concern that, because the respondent’s level of insight was “mixed at best, and he saw little benefit from his medication, instead seeing it as a burden”, the respondent might realise that, as a non-forensic patient, “he could refuse treatment, and would do so”: [57]. The primary judge also referred to Dr Elliott’s further concern that a CTO might not be applied for if the respondent’s status as a forensic patient lapsed because “community mental health services are resource poor and constantly looking for patients to discharge to GP care to allow for new referrals, particularly given the current public psychiatry climate in NSW”: [59].

9. [19]

   The primary judge also noted Dr Elliott’s view that, if an extension order were granted, it ought be granted for two years, a period which “would allow for a sustained period of assessment of the defendant’s adaption to his supported independent living setting, his compliance with mental health care and treatment, and his continued engagement with his NDIS disability provider”: [61].

10. [20]

    The primary judge noted that Dr Youssef interviewed the respondent for two hours over AVL on 14 August 2025: [62]. Dr Youssef considered the respondent to be forthcoming about matters of history but “guarded when discussing his mental health and specifically when asked about hallucinations”: [64]. She noted that although he denied a history of auditory or visual hallucinations, he reported having voices in his head with whom he conversed: [64]. Dr Youssef considered the respondent to be “less thought disordered” than he was when she interviewed him for the proceedings in 2022 (and for which she prepared a report on 9 June 2022): [65]. At [65], the primary judge also recorded that Dr Youssef noted:

11. [21]

    The primary judge said at [66]:

12. [22]

    His Honour also recorded that the respondent had reported to Dr Youssef “that he felt the need to limit what he shared and keep certain thoughts to himself, as speaking too much led others to suggest he was mentally unwell. Dr Youssef observed that the [respondent] indicated an awareness that withholding certain information may prevent him from being labelled unwell. The [respondent] reported that he could get ‘into trouble’ for talking about it”: [67].

13. [23]

    The primary judge also said that: “Dr Youssef noted that the [respondent] exhibited an absence of awareness of his schizophrenia symptoms”, which she considered “was the most common predictor of non-adherence to treatment, and was also associated with higher relapse rates, an increased need for involuntary treatments, poorer psychosocial functioning, aggression, and a more unfavourable course of the illness”: [69]. She also opined that his “moderate to severe Traumatic Brain Injury may also be associated with neuropsychological, emotional and behavioural complications, and that the [respondent’s] existing neurocognitive deficits are likely to have been compounded by his use of methamphetamine”: [69].

14. [24]

    The primary judge also referred to Dr Youssef’s opinion that the respondent met the definition of having a “mental illness” and is a “mentally ill person” as outlined in the Mental Health Act: [70].

15. [25]

    The primary judge noted the results of additional risk assessments that Dr Youssef had carried out (which Dr Elliott had not), which were that the respondent had a “high” loading of historical risk factors and a “moderate-high” loading of clinical risk factors. His Honour also noted Dr Youssef’s view that the respondent “continued to exhibit both the positive and negative symptoms of schizophrenia and show evidence of delusional beliefs reflective of issues with his cognitive functioning” and that he had “limited insight regarding the importance of ongoing intervention and support, as well as the need for medication”: [73]. She noted that he was “compliant” with medication but “continued to express his desire to cease Clozapine and did not believe he needed medication” and did not agree that he had schizophrenia: [74].

16. [26]

    The primary judge said, of Dr Youssef’s opinion regarding ongoing management:

17. [27]

    The primary judge summarised the parties’ submissions. In particular, his Honour set out the respondent’s submission (which his Honour accepted) at [93]:

18. [28]

    The primary judge explained why he accepted the respondent’s submission, including that Dr Elliott’s opinion ought be preferred to that of Dr Youssef, as follows (this is the subject of challenge in ground 1b of the appeal):

19. [29]

    When addressing the issue that arises under s 122(1)(b) of the Act, his Honour said at [113]:

20. [30]

    The primary judge accepted Dr Elliott’s opinion that a CTO “could” manage the risks posed by the respondent ([116]) and dismissed the summons with costs.

The proceedings in this Court

1. [31]

   On 15 October 2025, the appellant filed a notice of appeal against the orders made by the Court below. He also filed a notice of motion seeking an interim supervision order under the Act, which was made returnable on 17 October 2025 and listed for hearing on 20 October 2025.

2. [32]

   As referred to above, the notice of motion was heard and determined by Kirk JA on 20 October 2025. His Honour made an interim extension order commencing on that day and expiring on 19 December 2025. By notice of motion filed on 31 October 2025, the respondent seeks review of that order, arguing that his Honour lacked power to make such an order. The respondent’s notice of motion was listed for hearing with the appeal.

The issues for this Court

1. [33]

   The following issues arise:

   1. (1)

      whether Kirk JA had power to make an interim extension order extending the respondent’s status as a forensic patient;

   2. (2)

      if so, whether any of the grounds of appeal have been made out; and

   3. (3)

      if so, what order ought be made.

2. [34]

   It was common ground that if Kirk JA lacked the power to make an interim extension order, the appeal must be dismissed as the respondent would no longer be a forensic patient (the interim extension order granted by Harrison CJ at CL having expired on 24 October 2025). It was also common ground that this Court was in as good a position as the primary judge to decide on the order which ought be made, if the appeal is allowed and that it would be more efficient were this Court to make such a determination rather than remit the matter to the Court below.

3. [35]

   As the first issue turns on the proper construction of the Act, it is convenient to address the operation of the Act at the outset.

Relevant legislation

1. [36]

   The long title of the Act describes it as “[a]n Act with respect to criminal proceedings involving persons with a mental health impairment or cognitive impairment and the care, treatment and control of those persons; and for other purposes.”

2. [37]

   Section 3 contains definitions. An “extension order” is an order for the extension of a person’s status as a forensic patient under s 121. A “forensic patient” is defined by reference to s 72. An “interim extension order” is an order for the interim extension of a person’s status as a forensic patient under s 130. The “Tribunal” is the Mental Health Review Tribunal under the Mental Health Act.

3. [38]

   Part 5 of the Act relevantly applies to forensic patients. The objects of the Part include “to protect the safety of members of the public”: s 69(1)(a). These objects also apply to Part 6: s 69(2).

4. [39]

   Section 72 provides that certain persons are forensic patients for the purposes of the Act, including, relevantly:

5. [40]

   Division 3 of Part 5 of the Act, entitled “Reviews of forensic patients by Tribunal” provides that the Tribunal must carry out reviews of forensic patients at various times, including “as soon as practicable after a limiting term is nominated by a court for a forensic patient” or after a person is found unfit to be tried; at intervals of 6 months while the person is a forensic patient and “as soon as practicable after being requested to carry out a review of a forensic patient by the medical superintendent of the mental health facility in which the patient is detained”: s 78. The Tribunal may carry out a review of a forensic patient “at any time”: s 79.

6. [41]

   The Tribunal may make an order for the transfer (s 82) or release (s 83) of a forensic patient.

7. [42]

   The Tribunal may grant leave for a forensic patient to be absent from a mental health facility or other place “for a period and subject to any terms and conditions that the Tribunal thinks fit”: s 94(1).

8. [43]

   The Tribunal may make a community treatment order in relation to a forensic patient: s 99(1)(a).

9. [44]

   Section 101 provides that a person ceases to be a forensic patient if, relevantly, “an extension order or interim extension order made against the person expires and no further order is made”: s 101(f).

10. [45]

    Division 9 of Part 5, entitled “Enforcement”, empowers the President of the Tribunal to make an order for the apprehension of a person if it appears to the President that the person has breached a condition of an order for the person’s conditional release or leave of absence: s 109(1)(a) and (c). In such a case, the Tribunal must review the case of a person so apprehended: s 109(4).

11. [46]

    Part 6 of the Act, entitled “Extension of status as forensic patient”, is, for present purposes, the most relevant part of the Act. It provides that the Supreme Court may, on application (by the Minister: s 123), make an order for the extension of a person’s status as a forensic patient: s 121(1). Such an order is an “extension order”: s 121(2).

12. [47]

    Section 122 provides:

13. [48]

    The Minister may apply for an extension order in respect of a forensic patient but only if the forensic patient is subject to a limiting term or an existing extension order: s 124(1). Such an application may not be made more than 6 months before the end of the limiting term or the expiry of an existing extension order: s 124(2).

14. [49]

    Section 125 provides that such an application must be supported by documentation:

15. [50]

    Section 126 provides for pre-hearing procedure and requires the Minister to disclose all relevant material to the forensic patient. A preliminary hearing must be conducted by the Supreme Court within 28 days of the filing of the application or within any further time that the Court may allow: s 126(4). If the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must appoint two qualified psychiatrists, psychologists or registered medical practitioners or any combination of two such persons to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of the examinations: s 126(5).

16. [51]

    The Court may determine the application by making the order or dismissing the application: s 127(1). In determining whether to make the order, the Court is to have regard to various matters, including the safety of the community and the reports of the experts provided under s 125(b).

17. [52]

    An extension order may be made for a term not exceeding 5 years from the day on which it commences: s 128.

18. [53]

    Division 4 of Part 6 provides for interim extension orders. Because of the importance to the first issue of the wording of ss 130 and 131, these provisions will be set out in full:

19. [54]

    Section 135(1) (which is also important to the respondent’s argument on the review application) provides that an appeal lies to this Court from a determination of the Supreme Court to make, refuse to make, vary or revoke an extension order. The appeal may be on a question of law, fact or mixed law and fact: s 135(2). The appeal lies as of right if brought within 28 days of the decision or, by leave, “within the further time as the Court of Appeal may allow”: s 135(3). Although the making of an appeal does not stay the operation of an extension order (s 135(4)), if this Court remits a matter to the Supreme Court, “the extension order the subject of the appeal continues in force, subject to any order made by [this Court]”: s 135(5). Section 135(6) provides:

20. [55]

    Section 14 of the Mental Health Act defines “a mentally ill person” to be a person:

The application for review

1. [56]

   The conclusion that this Court had power to make an interim order extending the respondent’s status as a forensic patient was based on the following (references to paragraphs are to Kirk JA’s judgment):

   1. (1)

      the expression “[t]he Supreme Court” in s 130 is capable of meaning a single judge in a Division of the Supreme Court or the Court of Appeal or the Court of Appeal as constituted by three judges ([23]);

   2. (2)

      the words “proceedings in an application for an extension order” in s 130 apply distributively to proceedings in the Court below and to this Court, with the consequence that the commencement of proceedings in this Court (by the filing of a notice of appeal) gives rise to a fresh power to make an interim extension order;

   3. (3)

      on the basis of this construction, the time limit of 3 months on the total duration of an interim extension order in s 131(2) applies per proceeding and does not inhibit this Court’s power to grant an interim extension order for a maximum of 3 months if an appeal has been filed; and

   4. (4)

      this construction ought be preferred because it would promote the purpose or object of the Act, which is, by providing for interim extension orders ([32]):

2. [57]

   Mr Griffin SC, who appeared on behalf of the respondent with Mr Spohr and Ms Egan, submitted that:

   1. (1)

      the legislative criteria for an interim extension order were not made out as the respondent was neither subject to a limiting term nor an “extension order” as those terms were defined in the Act, with the consequence that Kirk JA had no power to make the interim extension order;

   2. (2)

      the words in s 131(2) mean what they say: that the duration of interim extension orders granted with respect to a matter could not exceed 3 months in total, with the consequence that the interim extension order made by Harrison CJ at CL expired on 24 October 2025, bringing to an end the respondent’s status as a forensic patient;

   3. (3)

      the appellant, as the moving party in the Court below and the only party who would have an interest in challenging in this Court, the refusal of the Supreme Court to extend an extension order, was in a position to ensure that time limits were met;

   4. (4)

      although the timetable was a “strict regime”, compliance was not impossible, as the appellant was entitled to commence proceedings in the Court below 6 months before the expiry of an order and could file a notice of appeal very quickly after delivery of a judgment by the Court below;

   5. (5)

      if the consequence of the statutory time limits was to make the appellant’s right of appeal nugatory, this was a matter which the appellant was in a good position to change, by statutory amendment; and

   6. (6)

      this Court ought not, by a process of interpretation, seek to remedy poor drafting or dilatory conduct by the appellant with respect to the proceedings.

3. [58]

   Mr Griffin submitted that time was tight in the present case because the appellant did not commence proceedings until 11 April 2025 (in circumstances where the extension order was due to expire on 24 July 2025 and the appellant could have commenced proceedings on 24 January 2025) and did not file the notice of appeal until 15 October 2025, 19 days after the primary judge made orders and delivered his reasons on 26 September 2025. Thus, he submitted that the appellant was the author of his present predicament and had not sought to explain to this Court his delay in filing the notice of appeal.

4. [59]

   Mr Griffin acknowledged that the submission in (1) above had not been put to Kirk JA because of time constraints but, as it concerned a matter of law, he ought be permitted to raise it on the review of the decision. He also acknowledged that the construction which Kirk JA preferred (including having regard to (1) above) was an available construction but that it ought not be accepted, having regard to his submissions outlined above.

5. [60]

   As to (1) above, we are not persuaded that the words “extension order” in s 124(1) ought be construed as limited to a final extension order as distinct from an interim extension order. Section 6 of the Interpretation Act 1987 (NSW) provides that definitions in an Act do not apply to the construction of the Act in so far as the context or subject-matter otherwise indicates or requires. While s 3 defines “extension order” as meaning an extension order under s 121 (which is a final extension order and has a maximum term of 5 years) and an “interim extension order” as an extension order under s 130 (which has a maximum term of 3 months), the important consideration, as far as the Act is concerned, is that whenever either a final or interim extension order is still current, the person to whom it relates remains a forensic patient: s 101(f). If Mr Griffin’s argument were accepted, the appellant’s rights of appeal would be rendered nugatory in every case where the appeal was filed during the pendency of an interim extension order and not during the pendency of the extension order which the appellant sought to have extended by application in the Court below.

6. [61]

   It is significant that Mr Griffin conceded that the construction for which the appellant contended (which was accepted by Kirk JA) was an available construction. Section 33 of the Interpretation Act requires this Court to prefer a construction which would promote the purpose of the Act rather than one which would not.

7. [62]

   If the construction contended for by Mr Griffin were accepted, the Court below and this Court would, in all but exceptional cases, have insufficient time to follow the timetable set out in the Act. The Act requires that two experts will be appointed by the Court to examine a forensic patient and provide reports to the Court. Natural justice requires that a forensic patient be permitted some time to obtain an expert report or reports in response. The hearing date needs to be fixed to accommodate those experts, if they are to be called, as well as counsel who have been briefed to review the extensive documentary material. While some cases might be straightforward, it cannot be assumed that they will be so. This means that the judge who hears the matter at first instance will need some time to give adequate reasons for the orders made. Further, the exercise of an appellant’s right of appeal inevitably takes time and, if the matter is remitted, additional time is required. It is not reasonable to expect that all of these steps could be taken within the time of a single interim extension order made at first instance. In addition, although the appellant could commence proceedings 6 months before the expiry of an extension order, the appellant has a right to appeal at any time in the last 6 months of the extension order. This right would be significantly compromised if the respondent’s construction were preferred.

8. [63]

   The construction found by Kirk JA is, on the other hand, open on the wording of the Act and is consistent with its purpose. For these reasons, and the reasons given by Kirk JA, his Honour had power to make an interim extension order. The application for review of his Honour’s decision ought be dismissed.

The grounds of appeal

1. [64]

   The appellant appeals on the following grounds:

2. [65]

   For the reasons that follow we consider that grounds 1a and 1b have not been made out but that ground 2 has been made out.

3. [66]

   The appellant submitted that the primary judge, in [37] of his Honour’s reasons, had purported to lay down a rule of practice as to what should occur in applications under the Act in particular circumstances, which include where court-appointed experts disagree. He submitted that this amounted to an error, particularly in circumstances where, at the outset of the hearing, the primary judge was informed by the appellant’s counsel that neither expert would be called to give oral evidence, the respondent’s counsel confirmed that he did not want to cross-examine the experts and the primary judge did not indicate any objection to that course.

4. [67]

   A judge’s reasons are to be read fairly and as a whole. The primary judge’s statement that “ordinarily” the court-appointed experts ought be called to give oral evidence if there is a difference between them must be read in the context of what his Honour said in the balance of [37]. Although the primary judge’s words could be construed as laying down a general rule, this construction does not do justice to the nuanced considerations evident from a reading of the whole paragraph. In effect, far from laying down a general rule, his Honour was expressing regret that the parties had chosen in the particular case not to arrange (in the case of the appellant) or require (in the case of the respondent) the experts to give concurrent evidence which would have given the Court the opportunity to understand the reasons for the apparent differences in their opinions, with a view to identifying common ground and, potentially, different assumptions on which their opinions were based. It is understandable, particularly having regard to the content of the experts’ reports (which are extracted in part above and addressed in more detail below with respect to ground 2), that the primary judge would have preferred to have the experts give oral evidence so that his Honour could gain more assistance than was available from a reading of their reports.

5. [68]

   It is not necessary to say more to dispose of ground 1a, which has not been made out. However, we should say something about the appellant’s suggestion that, as the two experts had been appointed by the Court, the Court could have called the experts itself. We do not accept that suggestion. For the reasons that follow we consider that proceedings under the Act ought be conducted in accordance with the usual practices and procedures apposite to adversarial litigation (with some modification to accommodate the procedure which requires the Court to appoint experts and the requirement that the appellant act as a model litigant).

6. [69]

   As is evident from the terms of the Act, the Court is required to appoint two expert psychiatrists, psychologists, or registered medical practitioners (or any combination) following the preliminary hearing: s 126(5). The identity of those practitioners is not, however, a matter for the Court since the order under s 126(5), as in the present case, need only specify into which category the expert is to belong. Thus, the Court’s involvement, while required, is not akin to the selection of, say, a referee, or court expert under other circumstances (such as pursuant to Uniform Civil Procedure Rules 2005 (NSW), Part 31, Division 2, Subdivision 5, rr 31.46-31.54), although, as in other cases, the experts provide their reports to the Court: s 126(5). In the normal course, the appellant relies on the expert reports provided to the Court and the forensic patient obtains other reports in response, if so advised.

7. [70]

   Despite the circumstance that it is the Court which orders the experts to be appointed and that reports be provided within a specific time, the Court is not otherwise responsible for the experts. His Honour might have informed the parties that he would be assisted by oral evidence to resolve the differences between the experts. It would then have been open to the appellant to seek to make the experts available for that purpose or to apply for an adjournment of the proceedings to permit that to occur. But we do not consider that the Act contemplates or authorises the primary judge to conduct an independent role as inquisitor in proceedings which, though protective, are nonetheless adversarial.

8. [71]

   It is commonly the case, in other areas where experts are relied upon by one or other of the parties to litigation, that the experts will not be called to give oral evidence. While trial judges might be disappointed with the course the parties have taken (since concurrent expert evidence is commonly of assistance to the Bench), they must deal with the evidence as it is presented to them by the parties. It is, accordingly, not for the primary judge to lay down an ordinary rule as to when experts ought be called to give evidence. It is open to parties to submit, as in the present case, that reports ought be interpreted in particular ways, without requiring the authors to give oral evidence.

9. [72]

   There are, of course, circumstances where it would be necessary for a trial judge to flag a possibility to the parties as a matter of procedural fairness, which may require a witness to be called. For example, in Goodridge v R [2014] NSWCCA 37, the trial judge at a special hearing rejected the unanimous expert evidence that the appellant suffered a substantial impairment by abnormality of mind (which would have reduced the verdict from guilty of murder to guilty of manslaughter) on the basis that neither of the experts had viewed the Electronically Recorded Interview of Suspected Person (ERISP), which was taken not long after the offence was committed. An appeal against this decision was dismissed.

10. [73]

    The ground that the trial judge had not foreshadowed an intention to reject unanimous expert evidence was rejected as, during the hearing, the trial judge had expressed reservations about the value of the expert evidence, given that the experts had not been privy to the ERISP. Mr Goodridge argued that the trial judge ought to have invited the parties to provide the witnesses with further material and call them to give further evidence and was in error in failing to do so. The Court of Criminal Appeal said, at [116]:

11. [74]

    The Court also said, at [133]:

12. [75]

    The Court concluded at [137]:

13. [76]

    We consider that similar principles apply in a case such as the present.

14. [77]

    The appellant submitted, in support of ground 1b, that the primary judge had drawn an adverse inference against the appellant from the circumstance that the appellant did not call Dr Elliott or Dr Youssef to give oral evidence at the hearing. He submitted that this inference was necessarily implicit in the primary judge’s reasons, particularly at [37], [103] and [111]-[112].

15. [78]

    If the primary judge had drawn such an inference, this would have amounted to error. However, we do not consider that his Honour’s reasons, when read fairly, establish that this is what occurred. Rather, his Honour observed that there was no reason to prefer Dr Youssef’s opinion, in circumstances where neither expert had been called. As the appellant bore the onus of satisfying the Court to the requisite standard that the risk posed by the applicant could not be adequately managed by means that were less restrictive than an extension order and as one expert, Dr Elliott, considered that the risk could be adequately managed by less restrictive means, his Honour considered it to be open to him to accept that opinion and dismiss the application. This reading of his Honour’s reasons is consistent with the primary judge assessing the evidence as it was, as opposed to drawing an inference against the appellant.

16. [79]

    For these reasons, ground 1b has not been made out.

17. [80]

    For completeness, we propose to explain why the drawing of such an inference would have been erroneous. While the Court made an order for the appointment of an expert psychiatrist or psychologist or for two psychiatrist or two psychologists, the appellant retained and briefed them to examine the respondent and to prepare reports, which were to be provided to the Court. Thus, the appellant had no control over the actual content of the reports provided by either of the experts, although the appellant was responsible for providing material to the experts. This is to be contrasted with what occurs in other forensic circumstances, where a party’s legal advisers may be provided with a draft report which can be reviewed for admissibility and completeness before it is signed and served.

18. [81]

    In circumstances such as the present, there was no basis for either of the following two inferences:

    1. (1)

       that the appellant did not call either Dr Elliott or Dr Youssef to give oral evidence because he feared that their answers would not assist his case (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8); or

    2. (2)

       that the appellant did not ask particular questions of Dr Elliott or Dr Youssef (which would have required that they be called to give oral evidence) because he feared that their answers would not assist his case (Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–19).

19. [82]

    That these inferences were unavailable does not undermine the proposition that, as the appellant was asserting that an order ought be made, it bore the onus of satisfying the Court of the matters in s 122. The appellant’s decision not to call the experts to give oral evidence, in the absence of a request by the respondent that this occur, is not a matter that weighs against the appellant or in favour of the respondent, or which detracted from the probative force of their reports.

20. [83]

    The test in s 122(1)(b) was the principal issue in the case, it being common ground that the Court would be satisfied of s 122(1)(a) to the requisite standard.

21. [84]

    The Court’s task of assessing whether the unacceptable risk posed by the respondent could be “adequately managed by other less restrictive means” could not be fulfilled merely by expressing a preference for one competing expert opinion over another. That question was an (and in this case, the) ultimate question. It was the Court which was required to be satisfied under s 122, not the experts. The primary judge was required to undertake his own evaluative assessment of risk, informed by all of the evidence, including the opinions of the experts, who both opined in their written reports on the ultimate question, as they were entitled to do: s 80 of the Evidence Act 1995 (NSW).

22. [85]

    The primary judge posed the question in [113] whether the issue in s 122(1)(b) was to be resolved by reference to whether a less restrictive means of managing the risk posed by the respondent was available (that is, whether the risk posed could be managed) or whether the question was whether a less restrictive means would in fact be sufficient to manage the risk and decided that the former was the correct test. The appellant submitted, by ground 2, that this was incorrect.

23. [86]

    In the Second Reading Speech for the Mental Health (Forensic Provisions) Amendment Bill 2013 in the New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25639, which inserted the provisions which are presently relevant into the Act, the then Attorney General, the Honourable Greg Smith said of present relevance:

24. [87]

    While the word “availability” is used in this passage, it is plain that the “less intrusive alternatives” must be considered and “found to be unsuitable”. We do not regard the Second Reading Speech as favouring the primary judge’s construction.

25. [88]

    We consider that his Honour was incorrect to find that it was sufficient to defeat an application for extension if there were an alternative means available which “could” manage the risk posed by the respondent. This construction is at odds with the protective purpose of the Act and is inconsistent with the word “adequately”, which implies that the way in which the risk is to be managed is concerned with reality rather than hypothetical possibilities. Protecting safety is a question of practical outcomes, not theoretical possibilities. It follows that, in assessing the adequacy of a proposed measure to manage an unacceptable risk, the efficacy and reliability of the measure cannot be ignored. What is to be assessed and adjudged is the risk of the respondent causing serious harm to others and whether the appellant has proved that it cannot (not could not) be “adequately managed by other less restrictive means”.

26. [89]

    This difference is fundamental. In our view, his Honour applied the wrong test. Ground 2 has been made out.

Whether the matter ought be remitted

1. [90]

   The appellant sought that, if the appeal were allowed, an order be made remitting the matter to the Common Law Division to be determined. In the alternative, he sought that this Court deal with the matter finally. It became apparent in the course of argument that both parties were content for the matter to be dealt with on a final basis by this Court and that the appellant had only suggested remitter so as not to take up this Court’s time further. Mr Griffin did not suggest that the respondent would be disadvantaged by this approach and, indeed, supported it.

2. [91]

   We consider this to be a convenient course since, as no oral evidence was adduced in the Court below, this Court is in as good a position as the primary judge to determine the ultimate issue and has had the considerable benefit of having been taken through the expert reports in great detail for the purposes of the appeal.

Whether the respondent’s status as a forensic patient ought be extended

1. [92]

   The question for this Court is whether the appellant has proved that the unacceptable risk of the respondent causing serious harm to others if he ceases to be a forensic patient cannot be adequately managed by other less restrictive means. Because of the confined nature of this issue, it is not necessary to summarise all of the evidence which was before the Court below since the expert reports are the most germane to this question.

2. [93]

   The additional evidence before the Court, which was not before the primary judge, is that a CTO has been made in respect of the respondent for a period of 12 months expiring on 23 October 2026.

3. [94]

   The following matters are common ground:

   1. (1)

      the respondent suffers from cognitive impairment arising from a traumatic head injury and treatment-resistant schizophrenia;

   2. (2)

      the respondent’s tendency to psychosis can be relatively well controlled if he is compliant with taking Clozapine daily at a particular time and in a prescribed dose;

   3. (3)

      a deviation in dose by as little as 50mg (approximately 10% of the total dose) is sufficient to cause symptoms of psychosis, including auditory and visual hallucinations;

   4. (4)

      the respondent’s insight into his need to take Clozapine is limited as he does not accept that he has schizophrenia (and considers that his psychosis is drug-induced) and does not accept that he needs to take it or that it does him any good;

   5. (5)

      the respondent resents the side effects caused by Clozapine (which include weight gain, drooling and diminished sexual function);

   6. (6)

      the respondent values his relative freedom and would prefer to remain living independently;

   7. (7)

      the respondent, though presently abstinent from prohibited drugs, is addicted to methamphetamine and ice. He continues to think about taking those drugs, although that is not something that he wants to do again;

   8. (8)

      from 25 September 2014 until 21 February 2024, the respondent was either incarcerated in gaol, in a forensic hospital or on escorted day leave;

   9. (9)

      since 14 May 2025 (after the commencement of these proceedings), the respondent has been living in supported accommodation, receiving support from NDIS and continues to be subject to the supervision of the Tribunal as he is still a forensic patient; and

   10. (10)

       if the respondent’s status as a forensic patient were extended, it ought be extended for a period not exceeding two years (Dr Elliott, 2 years; and Dr Youssef, 18 months to 2 years).

4. [95]

   Dr Elliott noted in his report:

5. [96]

   As to the respondent’s methamphetamine use, Dr Elliott recorded:

6. [97]

   These statements made by the respondent led to Dr Elliott saying:

7. [98]

   In explaining his view that the respondent was not a “mentally ill person”, Dr Elliott said:

8. [99]

   As to the risk which the respondent would pose if he ceased to be a forensic patient, Dr Elliott considered that to be that he would “return to armed robbery to support a relapse into substance use”. Dr Elliott noted the importance of remaining compliant with Clozapine but once again confirmed that the respondent “has been compliant with his treatment without significant resistance”. Dr Elliott also said:

9. [100]

   Dr Elliott adverted to the risk of the respondent refusing treatment in the following passage:

10. [101]

    Dr Elliott addressed the benefit of a CTO as follows:

11. [102]

    We consider that this passage indicates that Dr Elliott’s opinion was that the respondent’s risk can only be managed safely if a CTO were made and assertively implemented by local mental health services. Dr Elliott elaborated his concern about this matter in the following passage:

12. [103]

    Dr Elliott’s concern about whether an application for a CTO would be made has been addressed by the evidence that the respondent is now subject to a CTO for a period of 12 months and will expire on 23 October 2026. However, Dr Elliott’s concern about how “assertively” the CTO, if made, would be managed, remains as an important rider to his apparent support for the proposition that the risk could be managed by a CTO.

13. [104]

    The respondent was more forthcoming to Dr Youssef (two days later) about his desire to go off Clozapine. She recorded, in part:

14. [105]

    Dr Youssef also addressed the respondent’s non-compliance with the previous CTOs which predated the index offences (set out above).

15. [106]

    Dr Youssef noted that the respondent maintained, as he had in 2022, that he does not have, and has never had, schizophrenia and that the cause of his psychosis is illicit drugs. She referred to her own concerns, shared by other experts who had examined the respondent, as to whether the respondent would continue to comply with his medication “given his limited insight”.

16. [107]

    She also referred to a history which the respondent had given to her in June 2022 that “Mr Haines had previously reported that he had delusions of believing that one of his friends was a ‘gremlin … I grabbed him by the shirt ripped it off and started hitting into him’. He had also reported other instances in the past whereby the respondent believed that people were something else and this resulted in him reacting aggressively (Youssef, 09/06/2022)”.

17. [108]

    Of the reduction in the respondent’s Clozapine dose in March 2025, Dr Youssef said:

18. [109]

    Dr Youssef noted inconsistencies between the reports (which were before the Court) as to how independent the respondent actually was:

19. [110]

    Dr Youssef also recorded that the respondent told her that now that he was in the community “he is not concerned about his order extending, though did not want to remain on clozapine”.

20. [111]

    Dr Youssef addressed the risk of relapse into substance use, which would be likely to carry with it a risk of re-offending (in order to obtain the money to buy the prohibited drugs). She also addressed the risk of violence not confined to substance use and said:

21. [112]

    Dr Youssef also said:

22. [113]

    Dr Youssef observed that, while the respondent generally appeared “forthcoming” in the examination, “he was most guarded when answering questions specifically about hallucinations”.

23. [114]

    When addressing the “nature and likelihood of serious harm”, Dr Youssef said that the respondent “continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient”. Dr Youssef referred to what she had said earlier about the factors which would increase the risk and confirmed:

24. [115]

    Dr Youssef did not consider that the existing care and supports were sufficient to manage the risk posed by the respondent, noting that they did not focus on “forensic risk”. She said:

25. [116]

    Although there were differences between the experts, there is much common ground between them, including that the respondent poses an unacceptable risk of causing serious harm if he ceased to be a forensic patient: s 122(1)(a).

26. [117]

    According to Dr Elliott, the primary risk of serious harm posed by the respondent arises because if the respondent ceased taking Clozapine and there was no effective intervention, this would result in his becoming “increasingly unwell [with the potential to] wander from his accommodation”. In this event, he would resume taking illicit drugs (most likely methamphetamines); and, as a consequence, would “return to a high risk state for serious harm to others; much as occurred prior to the index offences”.

27. [118]

    Dr Youssef agreed that that was the primary risk of harm, although she also appears to suggest that a serious risk of harm would arise if the respondent ceased taking Clozapine because of the increased paranoid delusions and command hallucinations to which the respondent would be subject.

28. [119]

    On the histories taken by both experts, there must be a high risk that if the respondent is not required to take Clozapine, he will cease to do so, since he does not accept that he has a mental illness which requires Clozapine to treat it and it has several side-effects that he finds unacceptable. There is no significant difference between the opinions of the experts in respect of this matter. Nor did either expert give any particular weight to NDIS supports, since it was common ground that they are not provided in a forensic context or for the purpose of preventing a recipient of those services from harming others. Mr Griffin accepted that if the respondent ceased taking Clozapine, he would present an unacceptable risk of harm to others.

29. [120]

    The real issue between the experts is whether the risks that would flow from the respondent’s decision to cease taking Clozapine can be adequately managed by a CTO in the environment in which the respondent presently finds himself. Before the Court can make an extension order, it must be satisfied to a high degree of probability that the identified risk cannot be adequately managed in that way.

30. [121]

    Dr Elliott opined that the risk could be adequately managed through a CTO because he considered that, if the respondent ceases to take Clozapine, the consequences in terms of a serious risk of harm will not be immediate and there are sufficient safeguards in place in terms of his NDIS support and the procedures available under a CTO to intervene in a timely manner to avoid the more serious consequence of that step. In other words, he considered that there would (or might) be some intervention which required the respondent to resume compliant taking of Clozapine before the ensuing downward spiral leads him to taking illicit drugs (which is something that the experts agree the respondent, if thinking rationally, does not want to do but which he remains at risk of doing).

31. [122]

    By contrast, Dr Youssef considered that the risk cannot be adequately managed by a CTO. In part, that may be because she assesses the risk as more immediate insofar as it arises directly from the untreated symptoms of his schizophrenia. However, her concern largely appears to arise from her assessment of the adequacy of a CTO to control the risk.

32. [123]

    The evidence does not reveal any example in recent years which would demonstrate that the serious risk of harm arises from the respondent’s schizophrenia itself rather than the consequences (illicit drug taking) that ultimately flow from it. This may reflect the efficacy of the measures required by the Tribunal to ensure compliance with medication. Although there is evidence that, including when his dosage was reduced (by 50mg), he has acted aggressively towards people when in a psychotic state, there is limited evidence that he has attempted to harm anyone (other than himself) while in that state. However, the risk of that occurring is real and present, given that the effect of psychosis may be to transform, in the respondent’s eyes another person into a “gremlin” (see above) who needs to be defeated. That said, we note that none of the activities of the respondent that have been harmful to others has arisen directly from the respondent’s schizophrenia (he was not psychotic when he committed the armed robberies, which were committed for financial gain to fund his illicit drug use).

33. [124]

    The question of the adequacy of a CTO to control what both experts regard as the primary risk has two components. The first is whether a CTO is likely to have a sufficient deterrent effect on the respondent’s desire to cease taking Clozapine. The second is whether the procedures available in respect of a CTO are sufficient to bring about a timely and effective intervention which results in the respondent resuming the medication if he tries to stop taking it.

34. [125]

    Neither expert addressed the deterrent effect of the remedies available if the respondent remains a forensic patient compared to the deterrent effect of those available under a CTO. There is some indication that the respondent appreciates the distinction, at least at a level where he realises that he has a better prospect of continuing to live in the community if he is subject to a CTO than if he is a forensic patient. Both experts expressed concern about the consequences of the respondent realising that, if he were no longer a forensic patient, he would have a greater ability to reject treatment.

35. [126]

    Dr Yousef has not identified with any degree of specificity what it is about the procedures available under a CTO that makes it an unsuitable alternative to the continuation of the respondent as a forensic patient in the circumstances of this case, although she does refer to the fact previous CTOs were ineffective. However, it is apparent that the differences are significant. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [100]-[127], Adamson J detailed (by reference to the statutory predecessor to the Act) the differences between the regime for forensic patients and those who were not forensic patients but who were subject to a CTO. It is not necessary to repeat the comparison, which is still relevant, here. It is sufficient to observe that the Act is principally concerned with public safety whereas the Mental Health Act is concerned with providing care and treatment “in the least restrictive environment” for the person in respect of whom a CTO is made. The Tribunal has continuous oversight of a forensic patient and can be constituted quickly to address situations as and when they arise. A breach by a forensic patient can be enforced by taking the patient into custody whereas the mechanism for enforcing a CTO is less immediate, discretionary and is largely dependent on the resources of the local mental health service. There is, accordingly, a significant deterrent effect which operates on forensic patients, which is of much lesser magnitude for those subject to a CTO.

36. [127]

    On Dr Elliott’s approach, the question is whether it is reasonable to expect the local mental health service responsible for implementing the respondent’s treatment plan to manage the respondent’s compliance with that plan “assertively”. Dr Elliott made some enquiries of the service responsible for managing the respondent’s CTO (St Mary’s Community Mental Health Services (CMHS)) and concluded “on balance” the risk could be managed with “this combination of measures” (that is, the measures available under a CTO).

37. [128]

    There are reasons for questioning this conclusion. One is that the CMHS will be managing the respondent for the respondent’s benefit and not to minimise the risk of harm to others (as required by the Mental Health Act). A second is the fact that CMHS are, according to Dr Elliott, “resource poor and constantly looking for patients to discharge to GP care [which] is especially so in the current public psychiatry climate in NSW”. A third is that Dr Elliott’s opinion may be premised on an incorrect interpretation of s 122(1)(b): namely, whether a CTO could adequately manage the risk, rather than, as we have found with respect to ground 2, whether it actually would adequately manage the risk.

38. [129]

    We also regard it as significant that both experts considered that if the order were to be extended, it ought be extended only for two years. As referred to above, it was only after these proceedings were commenced, that the Tribunal allowed the respondent to transfer into supported living accommodation in the community. The respondent was examined by the experts within about 3 months of this occurring, after he had been incarcerated for over a decade.

Conclusion

1. [130]

   There are four matters which, in our view, establish that the risk cannot be adequately managed by less restrictive means than an extension of the respondent’s status as a forensic patient.

2. [131]

   First, in circumstances where the respondent has no incentive to stay on Clozapine because he does not believe it does him any good and it has significant side effects that he finds unacceptable, deterrence is an important factor. The risk of being returned to a forensic facility immediately if he ceases to take Clozapine is likely to be a more effective deterrent than the procedures available under a CTO, which must be exercised with the respondent’s interests in mind.

3. [132]

   Secondly, CTOs have not been effective to manage the risk posed by the respondent in the past.

4. [133]

   Thirdly, Dr Elliott’s conclusions (that a CTO would be adequate) depend on an assumption that the respondent will be managed assertively by the relevant community mental health services. It would not, in our view, be reasonable to assess the risk on the basis of such an expectation or to place that responsibility on such services in the circumstances of this case, particularly as the focus is the interests of the respondent and the resources of such services are likely to be stretched. The position would be different if the respondent’s willingness to take Clozapine was not wholly dependent on external controls. But that is not the case at present.

5. [134]

   Fourthly, we do not think any conclusions can be drawn from the fact that the respondent has complied with the requirement to take Clozapine since he has been a forensic patient. Until recently, he was in a forensic facility. The respondent has only recently moved into his current living arrangements, and he has remained the subject of a forensic order. We think further time is needed to assess the respondent’s response to his current living arrangements before any conclusions can be drawn about his willingness to continue to take Clozapine independently of the external controls placed on him. The evidence suggests that the respondent enjoys his current living arrangements. The hope is that he will develop long-term habits and relationships that are likely to provide some incentive to remain on Clozapine independently of any external controls so as to make less restrictive controls, or no controls, appropriate. However, we do not accept that that is the current position. We consider that an extension of his status as a forensic patient is necessary and agree with the experts that a period of two years is appropriate.

Orders

1. [135]

   For the reasons given above, we make the following orders:

   1. (1)

      Dismiss the application for review of Kirk JA’s interim extension order made on 20 October 2025.

   2. (2)

      Allow the appeal.

   3. (3)

      Set aside the orders made by Coleman J on 26 September 2025 and, in lieu thereof, make order (4) below.

   4. (4)

      Pursuant to ss 121, 127(1) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), extend the defendant’s status as a forensic patient for a period of two years from 20 November 2025.