Minister for Mental Health v Paciocco

1. [1]

   HER HONOUR: By notice of motion filed 17 November 2017 the New South Wales Minister for Mental Health seeks an order under cl 12(1) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Forensic Provisions Act”) to vary the length of an extension order made by this Court on 16 January 2017 in respect of Stephen Mark Paciocco (see Minister for Mental Health v Paciocco [2017] NSWSC 4) for a further period of three years. The effect of that order, were it made, would extend Mr Paciocco’s status as a forensic patient until 16 March 2021.

2. [2]

   To the extent necessary, the Minister seeks a further order reopening the proceedings in which the extension order was made.

3. [3]

   The orders sought by the Minister raise a number of questions concerning the operation of the Forensic Provisions Act and the Schedules to the Act. In particular, whether the power in cl 12(1) of Sch 1 to vary an extension order (which in cl 12(2) includes a power to vary the length of an extension order), permits the Court to extend the length of an order in proceedings brought by the Minister under s 54A and Sch 1 of the Act in circumstances where the order sought to be extended was entered by the Court as a final order in those proceedings.

4. [4]

   Clause 12 in Sch 1 provides:

5. [5]

   A related question raised by the Minister’s application is whether the extension of a person’s status as a forensic patient is susceptible to an order by a notice of motion (whether in existing proceedings or on an application to reopen the proceedings), or whether the Minister is obliged to make that application by summons in accordance with r 6.4(1)(i) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), and in accordance with the procedures specifically provided for in Sch 1 to the Forensic Provisions Act for the determination of such applications.

6. [6]

   Upon the filing of the notice of motion, and with the agreement of the parties, the Court directed that the question whether there is power to make the orders sought by the Minister be determined as a preliminary issue. The Minister accepts that this is a novel application, in the sense that she has not previously sought to invoke the power under cl 12(1) to extend the length of an extension order in circumstances where the extension order was the subject of a final determination in substantive proceedings under the Act.

History of the proceedings

1. [7]

   The proceedings that resulted in Mr Paciocco’s continuing detention as a forensic patient were brought by the Minister under the Forensic Provisions Act in 2016.

2. [8]

   In those proceedings the Minister sought an order under s 54A and Sch 1 of that Act that a limiting term of 2 years and 6 months, imposed in the District Court on 8 September 2016 following a special hearing in July 2016, be extended for a period of 3 years from its expiration on 19 October 2016. The limiting term was imposed after a special hearing in which Jeffreys DCJ found, on the limited evidence available, that Mr Paciocco had committed the offences of reckless wounding and assault officer in the execution of duty.

3. [9]

   Interim extension orders under cl 10 of Sch 1 were made in the proceedings on 18 October 2016 (the day before the limiting term imposed in the District Court expired), and thereafter on 14 November 2016, 9 December 2016 and 15 December 2016. The substantive proceedings were ultimately heard by Campbell J on 15 December 2016.

4. [10]

   On 16 January 2017 his Honour made a final order extending Mr Paciocco’s limiting term for a period of 14 months, commencing on 17 January 2017 and expiring on 16 March 2018. That is, his Honour was not satisfied that the three year extension order sought by the Minister and expiring on 19 October 2019 should be granted. Upon the entering of the order the proceedings before Campbell J were finalised. There was no appeal from that determination.

5. [11]

   On 2 March 2017, Mr Paciocco was reviewed by the Mental Health Review Tribunal (the Tribunal). At that hearing the Tribunal ordered that he be detained for care, treatment and attention at Long Bay Hospital and that he be further reviewed within a period of three months.

6. [12]

   On 6 July 2017 he was again reviewed by the Tribunal. No additional orders were made at that time. He remained housed at Long Bay Hospital, with a further Tribunal hearing scheduled for January 2018.

7. [13]

   On 15 May 2017, the Crown Solicitor received instructions from the Minister to obtain a risk assessment report from an appropriately qualified expert to advise her on the merits of an application to extend Mr Paciocco’s status as a forensic patient beyond the expiry of the extension order made by Campbell J.

8. [14]

   Privilege was maintained in respect of that advice.

9. [15]

   On 3 July 2017, Mr Loosley advised Mr Paciocco’s legal representatives of the consideration the Minister was giving to making an application of that kind. The relevant extract of the letter reads as follows:

10. [16]

    There was nothing in that correspondence to suggest that the Minister was considering anything other than a fresh application for an extension order or, at the very least, there was nothing in the correspondence to suggest to the contrary. Notably, there was nothing to indicate the Minister’s intention to seek a variation of the existing order by notice of motion pursuant to cl 12(1).

11. [17]

    On 9 August 2017, Mr Paciocco’s legal representatives confirmed his consent to being interviewed to enable the preparation of a risk assessment report.

12. [18]

    The following day Mr Loosley sent a letter of instruction to Dr Eagle. Dr Eagle had furnished a risk assessment report for the purpose of the proceedings before Campbell J. Reports from Drs Ellis and Adams (court-appointed experts) and Dr Reznik (Mr Paciocco’s treating psychiatrist) were also tendered in those proceedings.

13. [19]

    I note that although Dr Eagle was expressly invited by Mr Looseley to provide an "updated" risk report to assist with an application to vary the extension order under cl 12 of Sch 1, Mr Paciocco’s legal representatives were not advised of the Minister's intention to make that application.

14. [20]

    To facilitate preparation of the report, Dr Eagle was provided with what was described by Mr Loosley as "updated briefing material” which included various reports from proceedings before the Tribunal, together with clinical and other notes prepared and retained by Justice Health.

15. [21]

    On 5 September 2017, Dr Eagle furnished a risk assessment report to the Crown Solicitor.

16. [22]

    On 16 November 2017 Mr Paciocco’s legal representatives were advised, for the first time, of the Minister's intention to apply for a variation of the extension order under cl 12 of Sch 1.

17. [23]

    The notice of motion upon which the Minister moves in these proceedings was filed the following day.

18. [24]

    At the hearing of the notice of motion, the Minister read Mr Loosley’s affidavit to which was exhibited a lever arch volume of material, including reports furnished to the Tribunal, the Tribunal's reasons for determination on successive reviews of Mr Paciocco status as a forensic patient and various medical and other records from both Justice Health and Corrective Services New South Wales. I have not found it necessary to refer to that material in any detail to resolve the preliminary issue.

19. [25]

    It is convenient to deal first with the order seeking a variation of the order made by Campbell J. If I am satisfied that cl 12(1) does confer a power to vary the length of the extension order to which Mr Paciocco is currently subject, and I am satisfied that to enable that power to be exercised the proceedings heard and determined by Campbell J will need to be reopened, the occasion for the exercise of the power for that purpose would follow as a matter of necessary implication.

Relevant provisions in the Schedule to the Act relating to an application for an extension order

1. [26]

   Clause 5 of Sch 1 requires an application for an extension order to be supported by documentation that addresses each of the matters referred to in cl 7(2) (to the extent relevant to the application), and which includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner.

2. [27]

   Clause 6 prescribes certain mandatory pre-hearing procedures that are to be followed upon the making of an application. Relevantly for present purposes, cl 6(5) requires the Court to hold a preliminary hearing within 28 days of the application being filed. At the preliminary hearing, the Court is required to determine whether the matters in the materials provided by the Minister pursuant to cl 5, "would, if proved, justify the making of an extension order". If satisfied of that state of affairs, the Court is obliged to make orders appointing at least two medical experts to examine and provide opinions as to the defendant’s mental health. Conversely, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must dismiss the application.

3. [28]

   Assuming that the Court determines the preliminary hearing favourably to the Minister, cl 7 allows the Court to make an extension order after having regard to the matters specified in cl 7(2). They are as follows:

4. [29]

   Clause 8(1)(b) allows the Court to specify the term of an extension order. It provides that the term of such an order must not exceed 5 years from the day on which it commences. I note and accept that this also finds expression in cl 12(2).

The arguments in summary

1. [30]

   The Minister submitted that she is entitled to invoke the express power in cl 12(1) to vary an extension order, and to do so by a notice of motion in the proceedings in which that order was made despite those proceedings having been heard and determined.

2. [31]

   The Minister submitted that the ordinary meaning of the word “vary” being “to change or alter, as in … character, substance, degree …” (Macquarie Dictionary), when applied to the language in cl 12(1) provides a specific source of power to vary (or change) an existing extension order.

3. [32]

   She submitted that when cl 12(1) is read with cl 12(2) (which makes express reference to a variation of the length of an extension order subject only to the total term of the extension order not exceeding 5 years), cl 12(1) must also be construed as a source of power to vary the length of an extension order. The Minister submitted that were it otherwise, cl 12(2) would have no work to do. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 328 at [70] the Court said:

4. [33]

   The Minister further submitted that purposive considerations provide additional support for the conclusion that Parliament intended that the variation power in cl 12(1) be available to the Minister when applying to extend the length of an existing extension order. It was submitted by the Minister that its utility is best exemplified in a case such as presents here, where, it was submitted, there is no new medical evidence concerning Mr Paciocco’s status as a forensic patient, and therefore no utility in burdening the Court with a fresh application for an extension order, with all the attendant procedural requirements in Part 2 of the Schedule, when an updated report would suffice. The Minister submitted that it was an efficient use of the Court’s time, and an efficient use of the Executive’s resources, for the Minister to simply obtain a report “updating” Mr Paciocco’s situation with a view to satisfying the Court that there has been no relevant change or improvement in his circumstances such as might reduce the risk of him causing serious harm to others if he is not managed by less restrictive means. This, so it was submitted, would allow the Court to be satisfied that the extension order should be extended for a further three years. The Minister’s claim that Mr Paciocco’s situation is unchanged, or that if unchanged (which is contested) it is likely to remain unchanged for the next three years, was addressed in the submissions of Mr Griffin SC, who appeared for Mr Paciocco, to which I will presently refer.

5. [34]

   The Minister emphasised that the general power in cl 12(1) to vary an extension order is also available to a forensic patient who may seek to have the term of an order extending their status varied by reducing its length. The Minister submitted that were cl 12(1) not construed as she contended it should be, by parity of reasoning, a forensic patient could not apply to shorten the length of an extension order. This, it was submitted would lead to inconvenient and unintended results where new information might surface during the currency of an extension order which, whilst falling short of supporting an application for revocation of an order under cl 12, might nevertheless support the order remaining in force for a shorter period of time. In those circumstances, were the narrow construction advanced by Mr Griffin accepted (as to which see below), the Minister submitted a defendant would be without any remedy.

6. [35]

   Mr Griffin submitted that cl 12(1) should be construed consistent with the general law principle of finality according to which a judgment regularly entered will not be varied (see DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17) and consistent with the principle of legality which requires that clear words of necessary intendment be used by the Parliament if fundamental rights are to be abridged (see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29). He submitted that a construction of cl 12, informed by those fundamental principles, dictates that the variation power in cl 12(1) be narrowly construed. The Minister submitted that both principles of statutory interpretation must yield to a statute that provides for specific powers to do that which might otherwise operate, or which in fact operates, to undermine common law principles or presumptions. The Minister submitted that cl 12(1) is a clear legislative source of a specific power to vary the length of an extension order so as to allow for the continued detention of a person who has the status of a forensic patient and that carries with it an implied right to reopen the proceedings for that limited purpose.

7. [36]

   Mr Griffin submitted that a narrow construction of cll 12(1) and (2) is called for when they are read in their legislative context. He drew attention to three alternate means in Sch 1 to the Act according to which the Minister might seek an extension of a limiting period (and the extension of a person’s status as a forensic patient), some with the attendant procedural steps set out in paragraphs 26 - 29 above and others involving application of the UCPR. Mr Griffin nominated the Minister’s right to appeal under cl 14 of the Schedule against the final extension order (which engages with the principle of finality and r 51 of the UCPR); the express power in cll 3 and 4 which permits the Minister to bring a fresh application during the currency of an existing extension order, albeit within six months of the expiry of that order; and the power under Division 3 of Sch 1 to apply for a new interim order.

8. [37]

   Mr Griffin submitted that by the legislature making express provision in cl 14 for a means by which the Minister might challenge the correctness of an extension order made in substantive proceeding under the Act (including, it must be supposed, where it is contended that the judge erred in refusing to make an order of a length commensurate with what the Minister submitted was an assessed risk of future harm) and, further, by making express provision in cl 4(1)(b) for bringing a fresh application for an extension order, albeit with all of the attendant procedural steps identified in paragraphs 26 – 29 above, the Parliament should be taken to have balanced the need to protect the community from a risk of future harm against a person’s fundamental right to liberty absent a sentence of imprisonment imposed under criminal statutes as a punishment for a past criminal wrong.

9. [38]

   Mr Griffin further submitted that for the Minister to bring the application for a variation of a final order by notice of motion, is contrary to the general principle of propriety in r 6.4(1)(i) of the UCPR:

10. [39]

    Mr Griffin submitted that because cl 13 in Sch 1 to the Act expressly provides that where the Schedule is silent on procedure (as it is for an application under cl 12) the applicable law is that which applies in civil proceedings, the inescapable conclusion is that the Minister is obliged to make an application to extend Mr Paciocco’s limiting term in conformity with r 6.4(1(i) of the UCPR. Mr Griffin submitted this accords with the fact that proceedings for the detention of forensic patients under the operative sections of the Forensic Provisions Act and Sch 1, authorise a form of preventative detention and that the Parliament should not be taken to have intended that a summary procedure could produce that result. Mr Griffin also questioned the propriety of the Minister in seeking an extension of the order made by Campbell J on 16 January 2017 by way of a notice of motion for a period of three years (which is more than double the length of the original order and longer than the original limiting term) under a clause of the Schedule that is both silent as to the procedures to be applied when that power is sought to be engaged and in circumstances where the application is contested or where the Minister has made no enquiry of a defendant’s legal representatives as to whether the application is contested. Mr Griffin informed me in oral submissions that any extension of Mr Paciocco’s current extension order is in fact contested. He also submitted that, consistent with his instructions which were, incidentally, supported by another expert’s reported views, Mr Paciocco’s “situation” was not “unchanged” nor “static”, as the Minister contended. That being the case, he submitted any review of Mr Paciocco’s status as a forensic patient at this stage in the course of the Court imposed limiting term (as extended) more than justified the invocation of a proper process to address that question, namely, by summons.

11. [40]

    The presumption that the Parliament does not intend to abrogate fundamental rights to liberty - in this context the fundamental rights of a person not to be preventatively detained unless that occurs in strict accordance with clearly articulated and circumscribed statutory grounds and procedures - is supported, in Mr Griffin’s submission, in the passage of the Bill that enacted Sch 1, where, as the Bill was read, reference was made to the New South Wales Law Reform Commission report, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences where, at pp 320-321, those considerations were endorsed as consistent with established principles of domestic and international law.

12. [41]

    Mr Griffin submitted that it is plain that Sch 1 read as a whole is an operative part of a legislative scheme as it applies to forensic patients in the Forensic Provisions Act which seeks to vindicate these principles, not only by the stringency of the substantive tests in the Act itself for the containment of people with intellectual or cognitive impairments and/or with psychiatric illnesses, but in the robust procedures provided for in the Schedule for the determination of applications to preventively detain such people.

Consideration

1. [42]

   Although the construction of the power in cll 12(1) and (2) and its intended operation and reach is not without its difficulties, I have resolved to the view that the construction of cl 12(1), as contended for by Mr Griffin, is to be preferred. Although it is difficult to accurately appoint what was in the contemplation of the Parliament in providing for a general power to vary an extension order while providing other specific mechanisms for achieving the same result, including during the currency of an existing order, I am satisfied that the narrow construction of cll 12(1) and (2) that Mr Griffin urges is in accordance with the broader legislative context embodied in the Schedule (itself part of the legislative machinery under the Act). That is, cl 12 provides a summary procedure by which the Minister or a forensic patient might approach the Court during the currency of an extension order to resolve matters that are susceptible to resolution under a general power to “vary” the terms of that order, including a variation by consent that might arise during the “life” of an extension order, and without the necessity to mount a fully blown extension application.

2. [43]

   I am satisfied that the specific power in cll 1, 3 and 4 of Sch 1 for the Minister to extend the length of an extension order during its currency when that is in contest, or when it is likely to be (the circumstances that obtain in this case), and which require the observation of settled procedures designed to allow for the insights of court-appointed experts to assist in the resolution of that question, is the appropriate source of power for an order of that kind.

3. [44]

   The parties agreed that Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 is the leading authority on the principle of construction to be applied where two sources of statutory power cover the same subject matter, one in general terms and one in specific terms, such that the general power is read down so as to not undercut the specific power. They did not agree as to its application in this case.

4. [45]

   In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [84], Gummow, Hayne, Crennan and Bell JJ described the principle as follows (footnotes omitted):

5. [46]

   In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, the provisions in issue were held not to be the same or mutually exclusive powers because, although it had been argued that they had the same practical effect and could operate on the same facts, they did not operate at different levels of generality. Further, they had been enacted at different times to address broadly different problems and legal contexts and, for that reason, they had the potential for different legal and practical outcomes.

6. [47]

   Mr Griffin submitted the principles that emerge from Nystrom as they apply in this case resolve to the following:

7. [48]

   In the result, I am satisfied there is one source of power conferred upon the Minister to apply, in the six months before an existing extension order lapses, for an order to extend the period of a person’s designation as a forensic patient and require their detention for that reason, namely the specific power in cll 3 and 4 and that because the general variation power in cl 12 encroaches on that power it should be read down.

8. [49]

   That finding is reinforced by application of the general law principle in Phillips v Walsh (1990) 20 NSWLR 206 at 210 where in dismissing a post-judgment motion (and following a discussion of finality), McLelland J held that a dispute between the parties after final orders should not be determined by motion where “substantial matters in controversy are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of matters on summary application is inappropriate”.

9. [50]

   The Minister sought, unpersuasively, to distinguish Phillips v Walsh on the basis that the application to extend the length of an extension order is not substantially different from the substantive proceedings in which the original order was made. While the orders per se are the same or similar, it can hardly be said that an extension of Mr Paciocco’s status as a forensic patient and his continued (preventative) detention by reason of that fact for a further three years, is not a matter of substance which it can fairly be said is in the interests of justice appropriate to be determined in a summary hearing.

Orders

1. [51]

   Accordingly, I make the following orders: