Attorney General for NSW v Christian by his tutor Thompson

HIS HONOUR: These are proceedings in which the Attorney General seeks an extension order pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") in respect of a forensic patient, Lindsay Robert Christian (“the defendant”), for a period of two years.

The defendant is a forensic patient because he is subject to a limiting term imposed pursuant s 23 of the Act. That term is due to expire on 19 December 2017.

Before me today is the preliminary hearing of the application. The Attorney General seeks certain interim orders pending the final hearing of the matter. The defendant seeks an interim non-publication order. I will deal with the applications in turn.

The Attorney General seeks orders pursuant to cl 6(5) of Sch 1 appointing two qualified experts to conduct examinations and furnish reports and directing the defendant to attend those examinations.

An order is also sought that the defendant be subject to an interim extension order pursuant to cl 10 of Sch 1 commencing on the expiration of the present limiting term on 19 December 2017 for a period of 28 days.

Counsel for the Attorney General read certain affidavits and provided a quantity of documentary material in support of the application. Very detailed and helpful written submissions were provided in which the documentary material is summarised.

Counsel for the defendant does not oppose the making of the orders sought at this preliminary hearing, but will oppose the making of an extension order at the final hearing.

Notwithstanding the lack of opposition by the defendant to the making of the orders sought by the Attorney General at this preliminary stage, it remains necessary for me to be satisfied that the orders sought are justified. What it means, however, is that I do not believe it is necessary for me to set out in this judgment any summary of the material that the Attorney General relies upon (as is often done in cases of this nature, often at great length). My intention not to do so is also influenced by the concern underlying the application that is made by the defendant.

Clause 2 of Sch 1 of the Act provides as follows:

Sub-clause (5) of cl 6 provides :

Clause 10 makes provision for interim extension orders which is part of what is sought today. It provides:

The various concepts within these provisions have been thoroughly discussed in various judgments of this Court in the past. They are usefully summarised in the written submissions of counsel in the present case. The construction and application of the provisions are well enough known and are uncontroversial.

I have reviewed the material relied upon by the Attorney General. I am satisfied that the requirement of both cls 6(5) and 10 that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I am also satisfied that the defendant's present limiting term will expire before the proceedings are finally determined. I will make the orders sought by the Attorney General.

By notice of motion filed in court by leave at today's hearing, the defendant seeks an interim order pursuant to ss 7 and 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) for non-publication of his name or any other material that would identify him in respect of these proceedings until determination of the final hearing. An order is also sought that the defendant's name be anonymised by pseudonym.

The grounds for making the non-publication order are asserted to be those in s 8(1):

The defendant read an affidavit affirmed by his solicitor, Mr Todd Davis, on 24 November 2017 and I have had regard to the material therein, including the two annexures. I have also had regard to Exhibit C in the proceedings.

The application is based upon a concern that the documentary material relied upon by the Attorney General and by the defendant (affidavits and their annexures and exhibits) may be publicly linked to the defendant if his identity was to be made known. Such material includes what would otherwise be confidential medical and personal information, including his forensic history. Various adverse consequences that would follow are asserted in counsel for the defendant’s written submissions in support of this application.

I am mindful of the requirement in s 6 of the Court Suppression and Non-publication Orders Act that "a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice". I am not satisfied that it is "necessary" to make the orders sought. I have deliberately cast this judgment in terms that do not disclose such material. To the extent that such material is on the Court file, I consider that the defendant's interests are adequately protected by an order made by Fullerton J on 19 September 2017 in the following terms:

Accordingly, I make the following orders: