Attorney-General of NSW v Doolan

By summons filed on 28 October 2015 the plaintiff sought orders against the defendant which included the following:

The defendant consented, without admissions, to the making of these orders. The last date on which the orders set out in prayers 1 and 2 of the summons can be made is 12 December 2015 since the defendant is due to be released on that day on the expiry of the limiting term. The defendant is currently a forensic patient at the Forensic Hospital at Long Bay.

The plaintiff also seeks an extension order in respect of the defendant for a period of five years from the date of the order pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Forensic Provisions Act). However, whether it is appropriate to make such an order does not arise for present consideration since the matter is before me for preliminary hearing only at this stage.

The defendant is a forensic patient by reason of the commission of an offence of reckless wounding on 13 December 2012 (the index offence). The defendant followed the victim into his apartment building in Redfern at 5am and travelled with the victim in the lift up to the floor where the victim’s apartment was. The victim was unlocking the front door to his apartment when the defendant pushed him to the ground. The defendant stabbed the victim several times with a knife. He followed him into the apartment. There was a struggle, in the course of which the defendant stabbed the victim several more times. The victim called Triple-0. The defendant left the building. His departure was recorded on CCTV.

At the time of the index offence, the defendant had not been long at liberty. He had previously been incarcerated for a limiting term of 12 months which expired on 26 June 2012 for conduct that occurred on 24 March 2010. At the time of his release he had lived in supported accommodation arranged by the Community Justice Program (CJP). However, in September 2012 he left that accommodation, moved to Moree, and subsequently travelled to Sydney where he committed the index offence.

On 29 July 2013 Solomon DCJ found the defendant unfit to be tried and referred him to the Mental Health Review Tribunal (the Tribunal). On 17 September 2013 the Tribunal found him unfit to be tried and ordered his transfer to the Forensic Hospital.

As the defendant was found unfit to be tried, the matter proceeded as a special hearing before Judge Tupman pursuant to s 19 of the Forensic Provisions Act. Her Honour held that, on the limited evidence available, the defendant committed the alternative offence of reckless wounding. Her Honour acquitted him of the more serious charge of assault with intent to rob armed with offensive weapon and wounding.

On 20 June 2014, Tupman DCJ indicated, pursuant to s 23 (1)(a) of the Forensic Provisions Act, that, had the special hearing proceeded as a normal trial and had the defendant been found guilty, she would have imposed a term of imprisonment of three years. Accordingly, her Honour indicated a limiting term of three years to expire on 12 December 2015. Her Honour referred the defendant to the Tribunal pursuant to s 24(1)(a) of the Forensic Provisions Act and ordered, pursuant to s 24(1)(b), that he be detained in such place as the Tribunal directed. Accordingly, he became a forensic patient by reason of the operation of s 42 of the Forensic Provisions Act.

The Tribunal is obliged, by s 46 of the Forensic Provisions Act, to review the case of a forensic patient every six months but may review the case of any forensic patient at any time. The Tribunal reviewed the defendant on eight occasions, most recently on 30 July 2015. On 30 July 2015 the Tribunal’s reasons for its determination included the following:

A guardianship order was made in respect of the defendant on 13 April 2015 by the NSW Civil and Administrative Tribunal. The Public Guardian was appointed with the following functions: to decide whether the defendant may reside; to advocate generally for him; to make substitute decisions regarding medical and dental treatment for the defendant; to make decisions about the defendant’s freedom of movement when he is discharged from Long Bay Hospital; and to make decisions about services to be provided to him.

The defendant has a criminal history which involves stalking, intimidation and assault of strangers.

In 2010 the defendant was charged with stalking, intimidation and committing an act of indecency and behaving in an offensive manner. He was alleged to have approached a woman who was pushing her 11-month old daughter in a pram. He followed her to her apartment and waited outside her door. He removed his clothes and masturbated. She called the police who arrested him in the stairwell. On 12 August 2011 the charges were dismissed in the Local Court under s 32 of the Forensic Provisions Act on the basis that the defendant was mentally ill.

On 23 March 2010 in Seven Hills, a woman woke at 4.30am to see the defendant standing naked in her lounge room with the light on. The defendant then turned the light off and, when she turned her bedroom light on, she saw him standing in front of her, holding a large kitchen knife above her head. When she asked the defendant what he wanted, he answered, “To have a baby with you.” The woman managed to run out through her front door. Judge Keleman imposed a limiting term of 12 months which expired on 26 June 2012. As referred to above, the index offence was committed about six months after the defendant’s release following the expiry of the limiting term imposed by Keleman DCJ.

Part 5 of the Forensic Provisions Act, which deals with forensic and correctional patients, provides, by s 40, that the objects of the Part include the protection of the safety of members of the public. Section 54A provides for the extension of the status as a forensic patient of a person in accordance with Sch 1. Clause 3 of Sch 1 permits the Minister administering Part 5 of the Act, to apply to this Court for an extension order against a forensic patient.

The term “forensic patient” is defined in s 42 of the Forensic Provisions Act. It includes a person who is found unfit to be tried who is detained. Because the defendant was the subject of a limiting term and was detained in custody pursuant to an order made under s 24, he is a forensic patient.

Section 53 of the Forensic Provisions Act provides:

Section 54 of the Forensic Provisions Act provides:

The Forensic Provisions Act confers power on this Court to make an extension order if the forensic patient is subject to a limiting term or an existing extension order: cll 1 and 4, Sch 1. The test for making an extension order is set out in cl 2 of Schedule 1, as follows:

Clause 7(2) of Sch 1 provides:

On the making of an extension order, the Court is neither required nor permitted to determine whether the order is one for detention of the individual or supervision within the community. It is for the Tribunal to determine these matters. Once an extension order has been made, it may be varied or revoked by the Court, on the application of either of the parties or on the recommendation of the Tribunal, under s 47(2A) of the Forensic Provisions Act: cl 12, Sch 1.

An application for an extension order must be made within the last six months of a forensic patient’s limiting term or of any existing extension order: cl 4(2), Sch 1.

The applicant for an extension order is required to furnish to the Court documentation that addresses, to the extent relevant, each of the matters referred to in cl 7(2) and a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the risk of the forensic patient causing serious harm to others; the need for ongoing management of the patient as a forensic patient; and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means: cl 5, Sch 1.

Proceedings under Sch 1 are civil proceedings and are to be conducted in accordance with the law relating to civil proceedings (including the rules of evidence): cl 13, Sch 1.

The Forensic Provisions Act requires a preliminary hearing into the application within 28 days after the application is filed or within such further time as the Court allows: cl 6(4), Sch 1. If, following a preliminary hearing, the Court is satisfied that the matters alleged in the application would, if proved, justify the making of an extension order, the Court must appoint independent clinical experts to conduct examinations of the forensic patient and to furnish reports to the Court: cl 6(5), Sch 1. If not so satisfied, the Court must dismiss the application: cl 6(6).

Clause 10 of Sch 1 provides that the Court may make an interim extension order of the defendant’s status as a forensic patient if the limiting term will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

Section 47 of the Forensic Provisions Act empowers the Tribunal, after reviewing the case of a forensic patient under s 46, to make an order, including an order for the patient’s release, either conditionally or unconditionally. Leave of absence may also be granted pursuant to s 49, subject to safety considerations outlined in the section. Section 43 prohibits the Tribunal from making an order for release of a forensic patient unless it is satisfied that the safety of the patient or the public will not be endangered and:

The Tribunal may, under s 75 of the Forensic Provisions Act, impose a range of conditions as part of a conditional release order, including the appointment of a case manager. Conditions may also be imposed that relate to care and treatment; medication; accommodation; non-use of alcohol; drug testing; and agreements as to conduct. Prohibitions or restrictions on visiting certain places or associating with certain people may also be imposed.

Section 74 of the Forensic Provisions Act requires the Tribunal to have regard to certain matters when determining what order to make about a person, which include: whether the person is suffering from a mental illness or other mental condition; whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm or the protection of others from serious harm; the continuing condition of the person, including any likely deterioration in the person’s condition, and the likely effects of any such deterioration; and a report of a forensic psychiatrist.

Part 2 of the Mental Health Act provides for involuntary detention and treatment of patients in mental health facilities. An involuntary patient is defined as:

For present purposes it is sufficient to refer to the provisions that require that, before a person becomes an involuntary patient, he or she must be a “mentally ill person” or a “mentally disordered person”. For a person to be “mentally ill” the person must be suffering from “mental illness”. The term “mental illness” is defined in s 4 of the Mental Health Act to mean:

The Mental Health Act makes provision for community treatment orders in respect of “affected persons”. Such orders authorise compulsory treatment of persons in the community. Section 53(4) provides that the Tribunal may not make a community treatment order unless it is of the opinion that the person is a “mentally ill person”.

Section 4 of the Guardianship Act provides in part that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

Part 5 of the Guardianship Act governs the provision of medical and dental treatment. Section 36 authorises a responsible person, including a guardian (or the Tribunal), to provide consent to the carrying out of medical treatment (minor and major). If a patient objects to the carrying out of medical treatment, the consent of the guardian has no effect (s 46(2)(a)) unless the patient has minimal or no understanding of what the treatment entails and the treatment will cause the patient no distress or reasonable tolerable and transitory distress (s 46(4)). The patient’s objection may also be overridden if the Tribunal has conferred on the guardian a power to override (s 46A(1)), such power being conferred only if the Tribunal is satisfied that the objection will be made by the patient because of a lack of understanding as to the nature of, or reason for, the treatment (s 46A(2)).

I was referred to decisions of this Court in which the Forensic Provisions Act was considered. Judicial consideration of the Crimes (High Risk Offenders) Act 2006 (NSW) (the High Risk Offenders Act) is of particular relevance where the same, or similar, wording is used: see, for example: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 by Davies J at [12]. Guidance as to the meaning of “high degree of probability” under the Forensic Provisions Act can, accordingly, be obtained from a consideration of its meaning in the High Risk Offenders Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 (a decision under the High Risk Offenders Act), the Court of Appeal (Mason P, Giles and Hodgson JJA) said at [21]:

The question whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order” also arises under the High Risk Offenders Act. The Court of Appeal in Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119; 70 NSWLR 448, said of similar wording in the High Risk Offenders Act at [98]:

The phrase “unacceptable risk” is not defined in the Forensic Provisions Act. However, it is a common expression in Bail Acts: see, for example, Div 2 of Part 3, Bail Act 2013 (NSW). It is clear from the express terms of cl 2(1)(a) in the Forensic Provisions Act that the unacceptable risk is that of “causing serious harm to others”.

As referred to above, an interim extension order can be made following a preliminary hearing if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. In other words, before I can make an interim extension order I must be satisfied that the supporting documentation is capable of satisfying the Court (at a final hearing) to a “high degree of probability” of the following two matters:

I propose to address such matters in s 7(2) as are relevant for the purpose of considering whether I am satisfied that the supporting documentation is capable of establishing that there is a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient and that the risk cannot be managed by less restrictive means.

The defendant’s criminal history supports the making of the order. The impulsive, anti-social, violent and sexual acts referred to above indicate that there is a risk of serious harm to persons in the community if the defendant ceases to be a forensic patient.

The defendant’s treating psychiatrist, Dr Kerri Eagle, assessed the defendant’s risk of violent re-offending to be high in the short and longer term. This view is consistent with those expressed by others who have treated the defendant during his limiting term

Dr Richard Parker (psychologist) and Ms Danielle Matsuo (forensic psychologist) assessed the defendant, at the request of the plaintiff’s solicitors, for the purposes of the proceedings. They recorded that the defendant persistently engages in inappropriate sexual behaviour towards female staff.

Dr Andrew Ellis (psychiatrist), who assessed the defendant for the purposes of these proceedings at the request of the plaintiff’s solicitors, diagnosed schizophrenia, neurocognitive disorder, substance abuse disorder and anti-social personality disorder. He noted that the defendant admitted to him that he intended to kill the victim of the index offence. Dr Ellis considered that the defendant would be unable to abstain from the use of prohibited substances outside a supervised environment and noted the contribution made to the defendant’s offending conduct by such substances. Dr Ellis also noted that sexual disinhibition was a feature of the defendant’s offending conduct.

There appears to be a consensus amongst medical experts, including the defendant’s treating doctors, that he is at high risk of violent re-offending. For example, at the Tribunal’s review on 19 February 2015, Dr Jones, forensic psychiatrist, opined that the defendant would probably remain “at high chronic risk”.

Judge Tupman (who imposed the limiting term for the index offence) considered that the defendant posed a risk of violence in the community due to his inability to control his behaviour or make appropriate judgments as a consequence of his mental illness and intellectual disability. Her Honour considered the defendant’s prospects of rehabilitation to be “almost nil because of his chronic mental illness”. Her Honour noted that the defendant had an acquired head injury as a result of a significant head injury he suffered when he was about 18 (as a result of being hit with an iron bar), which rendered him comatose for a period of six months. Her Honour also recorded that the defendant had an extensive history of substance abuse which included smoking cannabis from the age of seven; using amphetamines and methamphetamines between the ages of 16 and 27; and using heroin.

Judge Tupman said, in her reasons for imposing the limiting term:

The defendant’s criminal history is significant because it shows that the index offence was not an isolated impulsive act but can be seen as a further instance of unprovoked aggressive, sexual conduct against strangers. I am entitled to take into account the allegations of criminal conduct (even where they did not result in a conviction) on the question of risk, since the Forensic Provisions Act does not limit the assessment of safety to conduct that has resulted in a criminal conviction.

The team currently responsible for treating the defendant prepared a report dated 22 October 2015 for the Tribunal. The report outlines various means that are being contemplated to treat the defendant, including that he take Clozapine and that he be required to undertake a behavioural management plan. Dr Eagle expressed the opinion that the defendant “needs ongoing treatment and management in a high secure forensic setting such as the Forensic Hospital”, which was “the least restrictive reasonably available form of care in the circumstances”.

I also take into account the circumstance that the defendant consents (without admissions) to the orders in prayers 1 and 2 of the summons.

On the basis of the matters referred to above I am satisfied that the matters alleged in the supporting documentation referred to above would, if proved, establish to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. His lack of insight, lack of impulse control and past conduct indicate that the risk of his assaulting, including sexually assaulting, another person is high unless he is living in a highly regulated and controlled environment. He has little, if any, capacity either to moderate his conduct or impulses; to resist the urge to abuse substances if they are available; or to resist the sexual urge if it arises in circumstances where he considers that he has the opportunity to satisfy it. Indeed, such is his compromised state, I do not consider that it can be regarded as being in his interests to be at liberty at all, unless the “liberty”, such as it is, is strictly controlled.

The plaintiff submitted that, in the context of the present case, means which might be regarded as “less restrictive” than an extension of the defendant’s status as a forensic patient comprised either: classification of the defendant as an involuntary patient; or guardianship with an arrangement for secure accommodation supervised by CJP. The relevant statutory provisions for these two options are set out above.

The plaintiff submitted that neither of these means would be sufficient to manage the risk posed by the defendant. No “less restrictive” means were contended for on behalf of the defendant at the interim hearing.

Dr Ellis compared the access to treatment and assistance that would be available to the defendant if an order was made extending his term as a forensic patient, compared with the situation if he were declared an involuntary patient. He concluded:

Dr Parker and Ms Matsuo concluded, in their report of 22 October 2015, that:

Dr Eagle’s opinion was set out in a report dated 22 October 2015 which was prepared for the hearing before the Tribunal on 29 October 2015. Dr Eagle said, of present relevance:

I accept the plaintiff’s submission that classifying the defendant as an involuntary patient under the Mental Health Act would not adequately manage the risk he poses of causing serious harm to others. I am satisfied, on the basis of the evidence before me (which has not been challenged), that the risk posed by the defendant cannot adequately be managed by other less restrictive means (including classification as an involuntary patient under s 53).

In my view the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I am persuaded that it is appropriate, in these circumstances, to make an interim extension order for the maximum period allowed of 28 days.

I emphasise that this is a preliminary hearing. My view that an interim extension order is appropriate is not intended to foreclose a contrary view being reached at a later interim application or at the final hearing in the context of further evidence (which will include the reports which I have ordered be prepared and furnished to the Court) and more developed submissions.

In light of the view to which I have come, I am obliged by cl 6, Sch 1 to appoint two qualified professionals to conduct examinations of the defendant and furnish reports to the Court on the results of those examinations and to direct the defendant to attend such examinations.

Ms Dalumpines, who appeared on behalf of the defendant, asked that the defendant’s name be anonymised in this judgment. She did not make an application under the Court (Suppression and Non-Publication Orders) Act 2010 (NSW) (the 2010 Act). Rather, she submitted that I ought anonymise his name because of the provisions of s 162 of the Mental Health Act.

Section 162 is contained in Pt 2 of Chapter 6 of the Mental Health Act. Chapter 6 is entitled “Mental Health Review Tribunal”. Part 2 is entitled “Procedures of the Tribunal”. Section 4 defines “the Tribunal” as “the Mental Health Review Tribunal”. Section 149, which is the first section in Part 2, provides:

Section 162 provides:

Ms Wright, who appeared on behalf of the plaintiff, neither supported nor opposed the anonymisation of the defendant’s name. She directed me to decisions of this Court where the defendant’s name was anonymised but noted that this had occurred in circumstances where the anonymisation was neither opposed nor the subject of full argument. Ms Wright did not contend that s 162 applied in terms to the present case. Ms Dalumpines contended that I had a discretion to anonymise the defendant’s name, which I should exercise to save him from future embarrassment as a result of the disclosure of the facts on the basis of which the orders are made. She did not, however, contend that the wording of s 162 made the provision applicable to the present case.

I was referred to Attorney-General for the State of New South Wales v XY [2014] NSWCA 466, in which the Attorney-General appealed to the Court of Appeal pursuant to s 77A(6) of the Forensic Provisions Act, which entitles the Attorney-General to appeal from a determination of the Mental Health Review Tribunal under the Forensic Provisions Act as to the release of a person.

In Attorney-General for the State of New South Wales v XY McColl JA indicated that her Honour would revoke the non-publication order made on 27 October 2014 pursuant to the 2010 Act with respect to the identity of the respondent. Her Honour, without deciding whether an order was otherwise warranted under the 2010 Act, concluded that such an order was not necessary, having regard to s 162 of the Mental Health Act. Of present relevance, her Honour said, at [187]:

The issue was not addressed by the other two judges of the Court of Appeal (Beazley P and Basten JA) in Attorney-General for the State of New South Wales v XY.

Even if McColl JA can be taken as holding (as opposed to merely accepting) that s 162 applied to an appeal to the Court of Appeal from a decision of the Tribunal to release a person, it does not follow that s 162 applies to proceedings in this Court under the Forensic Provisions Act. In my view, the wording of s 149 is sufficient to establish that s 162 was not intended to apply to the present proceedings, since they are neither “proceedings of the Tribunal”, nor are they an appeal from a decision of the Tribunal. The Tribunal has no power to make an extension order as sought in the proceedings before this Court. Clause 1 of Sch 1 of the Forensic Provisions Act grants exclusive jurisdiction to this Court to make such an order. Accordingly, in my view, s 162 does not apply to the present proceedings.

In these circumstances, it is not, in my view, necessary to determine whether the word “person” in s 162 includes a court, particularly as I have not heard full argument on the question. I note, however, that the word “person” would not appear to include a court: see Kizon v Palmer (1997) 72 FCR 409 at 430-431 (per Lindgren J, Jenkinson and Kiefel JJ agreeing) and s 21 of the Interpretation Act 1987 (NSW).

Although there are decisions of single judges of this Court where the name of a person in respect of whom an application for an extension order has been made has been anonymised, I do not regard the jurisdiction to make such an order as deriving from s 162, which, in my view, has no application to the present case. Section 4 of the 2010 Act expressly preserves the inherent jurisdiction of this Court, which would include a power to anonymise the names of litigants. However, I do not consider that it is appropriate to exercise this Court’s jurisdiction to do so in the present case, particularly where no application has been made under the 2010 Act. The principles of open justice are fundamental and ought not be required to give way without substantial cause.

I make the following orders: