Attorney General of New South Wales v Christian

1. [1]

   HIS HONOUR: By summons filed on 11 February 2020 the plaintiff seeks the following orders:

2. [2]

   The defendant consents to the making of orders 1, 3 and 4. It remains necessary for me to be satisfied that an interim order is necessary even notwithstanding the fact that the defendant does not oppose it.

3. [3]

   On 9 March 2018, Rothman J ordered that the defendant be subject to an extension order for a period of 2 years from 12 March 2018 pursuant to cl 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990: see Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744. His Honour’s detailed analysis, and the evidence upon which he relied, remain respectively of assistance and relevant for present purposes, and a familiarity with his Honour’s decision is assumed.

4. [4]

   In support of its claim for interim orders, the plaintiff relied upon the following evidence:

   1. (1)

      Affidavit of Jack Vidler affirmed 12 February 2020.

   2. (2)

      Affidavit of Lucy Nichols affirmed 25 February 2020.

5. [5]

   The defendant did not rely on any additional evidence.

Consideration

1. [6]

   Applications for extension orders may be made in relation to forensic patients: cl 3 of Schedule 1.

2. [7]

   A forensic patient is defined in s 42 of the Act. As a result of Rothman J’s orders of 9 March 2018, making an extension order in respect of the defendant for a period of 2 years from 12 March 2018, the defendant falls within the definition of a forensic patient: s 42(a1). Further, because the defendant is subject to an existing extension order, which expires on 11 March 2020, an application for an extension order can be made in respect of him: cl 4(1)(b) of Schedule 1. Clause 4(2)(b) provides that an application for an extension order may not be made more than six months before the expiry of the existing extension order.

3. [8]

   Section 54A of the Act, which sits within Part 5, empowers this Court to extend a person’s status as a forensic patient (extension order) in accordance with Schedule 1. The objects of Part 5 of the Act, set out in s 40 are as follows:

4. [9]

   Clause 1 of Schedule 1 of the Act provides that this Court may make an extension order. The test is set out in cl 2:

5. [10]

   Dr Marcelo Rodriguez, a psychologist, furnished a report dated 17 December 2019. He assessed the defendant at the Bloomfield Hospital at Orange on 5 December 2019 in order specifically to address the defendant’s risk of causing serious harm to others and whether his risk of doing so and his need for ongoing management as a forensic patient could not adequately be managed by means less restrictive than extending his status as a forensic patient.

6. [11]

   With respect to the first issue, Dr Rodriguez said this:

7. [12]

   Dr Rodriguez concluded that the defendant had a number of future risks for violent re-offending which suggested an ongoing need for moderate levels of support, monitoring and supervision.

8. [13]

   Addressing the second issue, Dr Rodriguez said this:

Disposition

1. [14]

   Once proceedings such as these have been commenced, the Court is required within 28 days, or such further time as may be allowed, to conduct a preliminary hearing into the application: cl 6(4). If the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must make orders appointing two qualified psychiatrists or psychologists to conduct examinations and furnish reports: cl 6(5). If, as in the present case, the limiting term to which a forensic patient is subject will expire before the proceedings are determined, the Court may make an interim extension order if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: cl 10.

2. [15]

   The uncontested evidence is that the defendant at present poses a risk of causing serious harm to others if he ceases to be a forensic patient. So much follows from the opinion of Dr Rodriguez that the defendant has a number of future risks for violent re-offending. Dr Rodriguez is also of the opinion that, having regard to the risk that he has identified, an extension of his forensic order is the least restrictive means of care.

3. [16]

   Having regard to the evidence, I am in the circumstances satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order and an interim extension order. The orders I make will therefore be as follows:

   1. (1)

      Order pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990:

   2. (2)

      Order pursuant to clauses 10 and 11(1) of Schedule 1 to the Act that the defendant be subject to an interim extension order commencing on and from 12 March 2020 for a period of three months.

   3. (3)

      Order restricting access to the Supreme Court file in respect of this proceeding such that access would only be granted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party’s application for access and have been afforded an opportunity to be heard.

   4. (4)

      List the proceedings for mention on 1 June 2020.

   5. (5)

      Grant liberty to the parties to apply on 24 hours’ notice.