Attorney General for New South Wales v Haines (BHT Barbara Ramjan)

1. [1]

   The respondent in this matter is the subject of an interim extension order (IEO) under ss 130-131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). That order expires in four days’ time. The IEO was made in proceedings in which the Attorney General had sought that the Supreme Court make an extension order with respect to the respondent for a further two years. The primary judge, Coleman J, subsequently refused the application for an extension order: Attorney-General for New South Wales v Dale Haines (BHT Barbara Ramjan) (Final) [2025] NSWSC 1117 (J). The Attorney appeals by right from that decision pursuant to s 135 of the Act.

2. [2]

   In that context the appellant has applied for:

   1. (1)

      a further IEO for a period of three months (or such shorter time as the Court permits) under ss 130-131 of the Act;

   2. (2)

      in the alternative, expedition of the hearing of the appeal – in particular, if possible, such that the appeal is heard and determined by the end of this week.

3. [3]

   The appellant’s primary position involved asking the Court to make an IEO. The application for expedition was very much its secondary position. It is important to make that point because if the conclusion I reach below about the three month time period is in error, on current authority that would mean that no further extension order could be granted with respect to the respondent after this Friday. That risk was accepted by the appellant.

Background

1. [4]

   The respondent is currently 44 years old. He has a history of drug and alcohol abuse which commenced when he was aged 15 years. The primary judge explained:

2. [5]

   In September 2014 the respondent was arrested and charged with a series of armed robbery and assault offences in relation to robberies of service stations and a bank. The District Court found him unfit to be tried. Following a special hearing, that Court found on the evidence before it that the respondent had committed six armed robberies, one count of face disguised with intent to rob, one count of robbery, one count of assault occasioning actual bodily harm, and one common assault. The Court imposed a series of limiting terms which expired on 24 April 2022.

3. [6]

   On 8 July 2022 Yehia J made orders extending the respondent’s status as a forensic patient for three years, commencing on 24 July 2022: Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930.

4. [7]

   In April 2025 the appellant sought a further two-year extension of that order. On 22 July 2025 Harrison CJ at CL made an interim extension order commencing on 24 July 2025: Attorney General for New South Wales v Haines (Preliminary) [2025] NSWSC 774.

5. [8]

   The application for the two year extension was then heard by the primary judge on 1 September 2025. On 26 September 2025 his Honour refused the application.

6. [9]

   The current IEO remains in place but expires on 24 October 2025, being this coming Friday.

7. [10]

   On 9 October 2025, 13 days after judgment had been handed down, the Crown Solicitor’s Office (CSO) notified Legal Aid, solicitor for the respondent, that it had “received urgent instructions from the Attorney General to advise on the prospects of an appeal”. Neither that letter nor the affidavit of the relevant CSO solicitor says when those instructions were given. I infer it was only shortly before the letter was sent. The notice of appeal and motion were filed six days later, on 15 October 2025 last week. That was 19 days after the primary judge’s decision. Given the importance of what was at stake, and the fact that the IEO in place was soon to expire, it cannot be said that the appellant acted with due diligence.

The primary judgment and the appeal

1. [11]

   Section 122(1) of the Act sets out the two key statutory criteria that the primary judge had to consider when determining the appellant’s application for an extension order:

2. [12]

   When such an order is made the person’s status as a forensic patient is thereby continued. The Court is required to notify the Mental Health Review Tribunal of the making of the order (s 127(3)). The person then continues to be subject to the regime under the Act dealing with such persons, under the direction and control of the Tribunal.

3. [13]

   As provided for by the statutory scheme, Harrison CJ at CL had made orders requiring that reports by two experts be prepared for the purpose of the final hearing (s 126(5)(a)). The experts reached different conclusions. Despite that fact, neither side required the experts to give oral evidence. The opinion of Dr Gordon Elliott, a psychiatrist, was summarised by the primary judge as follows:

4. [14]

   Dr Elliott’s conclusion was expressed to be subject to a caveat which “arose from Dr Elliott’s concern about the readiness of civilian mental health services to continue to manage the defendant’s risk assertively with a CTO [Community Treatment Order]” (J [109]).

5. [15]

   The second expert was Dr Carollyne Youssef, a psychologist. Her conclusions were summarised as follows:

6. [16]

   The key difference between the views of the two experts was thus not as to whether or not the respondent could pose a continued risk of serious harm but as to whether that risk could be adequately managed in the absence of an extension order being made.

7. [17]

   His Honour said, amongst other things, that he could “see no reason why the opinion of Dr Elliott should be rejected and that of Dr Youssef preferred” (at [112]). He concluded that the case for an extension order had not been made out and dismissed the application.

8. [18]

   The appellant now appeals on two grounds: first, that the primary judge erred in indicating at [37] that court-appointed experts ordinarily should be called to give oral evidence where they had a difference of opinion, and in placing weight on the absence of such evidence; and, second, in confining attention to a community treatment order when considering other less restrictive means, without considering whether that alternative was adequate to manage the risk in light of some evidence having provided reason to doubt that the means would be implemented effectively or at all.

9. [19]

   I do not have the benefit of written submissions from either side directed to these issues. In any event, it is neither possible nor appropriate for me to consider in detail their likely prospects of success. It suffices to say that I consider the grounds reasonably arguable.

Is it possible to make an interim order in the current circumstances?

1. [20]

   Sections 130 and 131 of the Act provide:

2. [21]

   These provisions mirror the predecessor legislation: Mental Health (Forensic Provisions) Act 1990 (NSW), Sch 1, cll 10-11 (the 1990 Act).

3. [22]

   The provisions are contained within Pt 6 of the Act. The objects of Pt 5 of the Act are set out in s 69(1) and, pursuant to s 69(2), those objects also extend to Pt 6. The stated objects include “to protect the safety of members of the public”.

4. [23]

   The reference to “Supreme Court” in s 130 of the Act of itself would encompass the Court of Appeal. As Spigelman CJ said in Smith v Yusen Daly Smith International (in liq) (2001) 53 NSWLR 385; [2001] NSWCA 458 at [25]: “The Court of Appeal exists within the Supreme Court. It is not a separate entity from it”; see also Habib v Radio 2UE Sydney Pty Ltd [2013] NSWCA 347 at [8]. In any case, under s 44 of the Supreme Court Act 1970 (NSW), “[t]he Court of Appeal may, in proceedings before it, exercise every power, jurisdiction or authority of the [Supreme] Court, whether at law or in equity or under any Act …”.

5. [24]

   The issue in dispute is whether the three month time limit in s 131(2) applies in such a way as to start running from when an IEO made in the Supreme Court against the respondent first commenced, despite the fact that an appeal has been instituted. If it did apply in that way, I could not now make an IEO as the IEO currently in place expires this coming Friday, being three months after the IEO made by Harrison CJ at CL commenced. On that understanding, to make any further IEO would go beyond the three month window.

6. [25]

   This Court considered the previous statutory regime in Attorney General of New South Wales v WB [2020] NSWCA 7. The main issue in that case was whether an extension order could only be made if the person in question was a “forensic patient” in the sense that they were subject to an existing limiting order or extension order in place at the time the order was made. The alternative argument was that it was sufficient that the person be a forensic patient when the application for the order was first made. The majority of the Court (Basten JA with Macfarlan JA agreeing) took the former view; Leeming JA, in dissent, took the latter view. It is clear that the parties and the Court in that case proceeded on the assumption that the three month time period did encompass any IEO that might be made on appeal, including even if the appeal was upheld and the matter remitted to the Supreme Court: see eg at [8], [49], [54], [79]-[80].

7. [26]

   The issue was not, however, the subject of argument. That being so, the assumption made in that case is not binding upon me. If “a point is not in dispute in a case, the decision lays down no legal rule concerning that issue”: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]; see further CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]-[14]; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [87].

8. [27]

   The issue before me is one of statutory construction. It is to be resolved by taking account of the relevant text, context and purpose. In my view the argument now put by the appellant is correct. This Court is not precluded from making an IEO in the current circumstances. And that is so even though it relevantly constitutes the Supreme Court, as referred to in s 130(1).

9. [28]

   Section 130 is the provision which grants the power to make an IEO. Such an order can be sought and made “in proceedings on an application for an extension order”. The word “proceedings” is not defined in the Act. Section 131 does not employ that word but there was no need for it to do so, given that it is simply making provision for aspects of how IEOs made under s 130 are to apply. The time limit specified in s 131(2) necessarily applies to an IEO that was made “in proceedings on an application for an extension order” as identified in s 130(1). Senior counsel for the respondent argued that the words in s 131(2) are plain and should be taken to mean what they say. That submission ignores the link between ss 130 and 131. That link means that there is an issue as to what “proceedings” means.

10. [29]

    In particular, the key question is whether an appeal to this Court is the same “proceedings” as the application for the extension order in the Supreme Court. The word “proceedings” is capable of applying to the matter, so as to encompass any appeal. The word “proceeding” can also be used so as to mean “merely some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer”: Cheney v Spooner (1929) 41 CLR 532 at 536-537; [1929] HCA 12. Thus in various other contexts it has been held by this Court that an appeal is a separate “proceeding”: Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393 at [11]; Diveva Pty Limited v Nominal Defendant [2013] NSWCA 325 at [90]; Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224 at [3]; Keynes Capital Global Limited v Guo (No 2) [2020] NSWCA 336 at [9]. Those cases illustrate that the appellant’s argument is open. They do not resolve whether that construction is the correct one in relation to the provisions at issue.

11. [30]

    Section 136 of the Act states that “[a]n order for costs may not be made against a forensic patient in relation to proceedings under this Part (including proceedings on an appeal under this Part)”. This provision seems to distinguish between proceedings at first instance and on appeal, but it cannot be said that the point is clear.

12. [31]

    Schedule 1 to the 1990 Act, containing the predecessor provisions, was introduced by the Mental Health (Forensic Provisions) Amendment Act 2013 (NSW) (the 2013 Amendment). In his second reading speech, the Attorney General stated that the 2013 Amendment was intended to implement the NSW Law Reform Commission’s (NSWLRC) recommendation that an extension order mechanism be incorporated into the 1990 Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25639). The relevant NSWLRC report, released earlier that year, had recommended that a scheme modelled on the mechanism for issuing continuing detention orders (CDO) for high risk offenders be adopted (NSWLRC, People with cognitive and mental health impairments in the criminal justice system: criminal responsibility and consequences (May 2013) (NSWLRC report) at ch 11). The report does not address the inclusion of IEOs in the scheme; nor does that drafting choice receive substantive attention in the 2013 Amendment’s second reading speech or explanatory note. The NSWRLC did note that the CDO scheme empowered the court to make an interim order for supervision or detention not exceeding 28 days (NSWLRC report at 324). In sum, the NSWLRC report and explanatory materials offer little guidance on the application of the three month time limit on IEOs in a case such as this. Senior counsel for the respondent agreed that that was so. Neither side argued that cases relating to continuing detention orders offer any assistance in the current context.

13. [32]

    The obvious purpose in providing for the making of IEOs was to give the Supreme Court a reasonable, if limited, period of time in which to consider an application for an extension order. The fact that the time was limited is consistent with other aspects of the statutory scheme, which stipulate that such an application can only be made in the last six month before the expiry of a limiting term of previous extension order (s 124(2)), and that the required preliminary hearing in the Supreme Court is to be conducted within 28 days of the application being filed (s 126(4)).

14. [33]

    As Basten JA said in WB of the predecessor to s 131:

15. [34]

    However, the scheme also provides for appeals from decisions to make or to refuse to make an extension order (s 135). Given the tight time constraints, it will commonly be the case that the final decision of the Supreme Court would only be made at or near the end of the permissible three month period for an IEO. In that context, were that same time period to apply to proceedings in this Court then little, or perhaps no, time may be left for the appeal process to take its course. In some plausible circumstances, thus, the statutory appeal right would be rendered ineffective because there would be insufficient time for the appeal to be filed, prepared, heard and determined. In other plausible circumstances the parties and this Court would be required to act with extreme expedition under great pressure.

16. [35]

    No doubt the time limits are imposed in recognition of the fact that the statutory scheme imposes significant restrictions on liberty. Yet for that very reason it is important that applications be dealt with not only promptly but carefully and judiciously. The Parliament can be taken to have intended as much. That understanding is reinforced by the importance of protecting the safety of the public, as referred to in s 69(1). That context makes it unlikely that the time limits were intended to operate in a way which would commonly restrict or deprive the parties and this Court of the opportunity to deal with any appeals with the requisite diligence and care, in circumstances where the Parliament has expressly provided appeal rights under the Act.

17. [36]

    Moreover, this Court is authorised to remit the matter to the Supreme Court (s 135(5)). Such an order might well be made in circumstances where an appeal was upheld against a Supreme Court order dismissing an application for an extension order and this Court considered it appropriate for the primary judge to reconsider the matter (that judge may, for example, have had the benefit of seeing and hearing witnesses give oral evidence). If the three month time restriction that originally applied to the Supreme Court also applied to any such remitter then even if there was any time left, it would likely be very constrained indeed.

18. [37]

    Section 135(6) of the Act provides:

19. [38]

    An oddity about this provision is that the language of “revoking or varying an extension order the subject of the appeal” presupposes that there is some such order in place. That may not be the case if the Supreme Court had declined to make such an order. There is no apparent sensible reason why the Parliament would not have intended to empower this Court to make such an order in such cases. That suggests a slight lack of care in the drafting of the provision.

20. [39]

    A question then arises as to whether, if the appellant’s argument is correct (as I consider it to be), the three month clock would start running again if and when this Court made such an order. Much the same purposive and contextual arguments would apply in that context as arise vis-à-vis appeals. However, as the senior counsel for the appellant accepted, the textual argument relying on the notion of “proceedings” is not so clearly available in this context. It may be that the remitted case should implicitly be taken to be new “proceedings”, being a new “method permitted by law for moving a Court or judicial officer to some authorized act” (quoting Cheney).

21. [40]

    It is not necessary for me to determine that point. It is sufficient for current purposes to note that the Act provides for the possibility of remitter, and that fact militates in favour of the conclusion that the three month limit on any IEO made in this Court prior to the determination of an appeal should be taken to run from when an order of that kind is first made in this Court. It is that construction which, in my view, is the correct one. That construction is open on the text and is supported by the contextual and purposive considerations identified.

22. [41]

    Section 130 stipulates two requirements for the making of an interim extension order. The first – that it appears that the existing extension order to which the forensic patient is subject will expire before the proceedings are determined – is made out based on the timeline outlined (taking account of the fact that, as discussed below, the hearing of this appeal will be expedited and listed on 6 November 2025).

23. [42]

    The second requirement is that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. As explained, the key difference between the views of the two experts was not as to whether or not the respondent could pose a continued risk of serious harm but rather as to whether that risk was sufficiently ameliorated by ongoing management in the absence of an extension order being made. That is an evaluative matter going to future risk. It is thus not surprising that experts might disagree in their assessment of the issue. It would be open to this Court to prefer the view of Dr Youssef on appeal, taking account of the grounds of appeal. In that sense, it can be said that the matters alleged in the supporting documentation (including the notice of appeal) would if proved – ie made out – justify the making of an extension order sufficient for the purposes of s 130.

24. [43]

    In my view it is appropriate that the status quo be maintained pending determination of the appeal. In that regard I take account of the fact that the respondent is not currently detained. He resides in the community in supported independent living accommodation pursuant to conditional release granted by the Mental Health Review Tribunal on 14 May 2025 (see J [8]).

25. [44]

    An IEO should be granted. Although it can be made for a period of up to three months, here it is sufficient to make it up until the end of the Court term, being 19 December 2025. That will provide sufficient time for this Court to hear the appeal and either determine it or, if appropriate, extend the term of the IEO.

26. [45]

    If this Court dismisses the appeal prior to the end of the IEO then it can revoke the IEO pursuant to s 133(3). The criterion for making such an order is that the Court is “satisfied that circumstances have changed sufficiently to render the order unnecessary”. That criterion presumptively will be satisfied if the appeal has been dismissed (subject to any countervailing considerations, such as some mooted application for special leave to appeal).

Application for expedition

1. [46]

   The respondent did not oppose the appellant’s application for expedition. That application was put by the appellant in the alternative to making an IEO. However, given that the IEO restricts the liberty of the respondent the appeal should be heard promptly. An order for expedition should thus be made.

2. [47]

   It would be possible for this Court to hear and determine an appeal this week if absolutely necessary. The Court can always respond with very substantial expedition if that is what the circumstances, and justice, require: see eg Ward v Hoenig [2025] NSWCA 180; Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224. However, determining cases in great haste is less than ideal. The issues raised here are not unimportant. It is always better that both parties have some time to prepare careful written submissions and that the Court has time to consider the issues before being pressed to make an urgent decision.

3. [48]

   The Court can hear the appeal in two and a half weeks’ time on Thursday 6 November 2025. That allows the parties reasonable time to prepare their submissions. The respondent also raised an issue about potentially wishing to rely on further evidence (ie beyond what was before the primary judge), although the nature of that possible evidence was not explained. That factor, too, suggests that the orders should provide for an expeditious but not breakneck timetable.

Orders and costs

1. [49]

   As noted, pursuant to s 136 of the Act costs may not be made against a forensic patient. The Act does not prevent costs being ordered against the Minister administering the Act. The appellant has succeeded in obtaining an IEO, over the opposition of the respondent. However, as was submitted on behalf of the respondent, if the appellant had moved with greater speed after the decision of the primary judge then determination of this motion may not have been necessary (cf [10] above). The respondent’s submissions were of assistance. In this context the appellant should be ordered to pay the respondent’s costs of the motion.

2. [50]

   Given the degree of expedition ordered it is appropriate to make various timetabling orders.

3. [51]

   The orders of the Court are as follows:

   1. (1)

      Pursuant to s 130 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the respondent is subject to an interim extension order until 5pm on 19 December 2025.

   2. (2)

      The appeal is expedited and listed for hearing on 6 November 2025.

   3. (3)

      The appellant is to pay the respondent’s costs of the motion.

   4. (4)

      The appellant is to file and serve a white folder by 24 October 2025, with the white folder to stand as appeal books.

   5. (5)

      The appellant is to file and serve written submissions on the appeal by 24 October 2025.

   6. (6)

      The respondent is to file and serve written submissions on the appeal, along with any notice of contention and/or cross-appeal and/or application to rely on further evidence, by 31 October 2025.

   7. (7)

      The appellant is to file and serve and serve any written submissions in reply by 12:00 noon on 4 November 2025.

   8. (8)

      The parties’ submissions are to comply with rule 51.36 of the Uniform Civil Procedure Rules (NSW).

   9. (9)

      The appellant is to email the Registrar with electronic copies of all grounds of appeal and all parties’ written submissions, pursuant to paragraph 27 (and, as applicable, paragraph 28) of Practice Note SC CA 01, suitable for publication (with redactions as required), certified as such in each respective document by the lawyer responsible for filing the same, by 12:00 noon on 4 November 2025.

   10. (10)

       The appeal is listed for directions before the Registrar at 9:30 AM on 5 November 2025, which may be vacated if the preceding order has been complied with.