Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Blanks [2021] NSWSC 303 Hearing dates: 22 March 2021 Date of orders: 29 March 2021 Decision date: 29 March 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: 1. The summons is dismissed. 2. The plaintiff is to pay the defendant's costs. Catchwords: MENTAL HEALTH – forensic patient – extension of status as forensic patient – application for interim extension order and order for examination of defendant – whether matters alleged in supporting documentation if proved, justify making of an extension order – whether court could be so satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if she ceases to be a forensic patient – less restrictive means Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Attorney General for New South Wales v Kapeen [2017] NSWSC 226 Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 Attorney General for New South Wales v Peckham (Final) [2019] NSWSC 1775 Attorney General for New South Wales v Peterson [2020] NSWSC 651 Cornwall v Attorney-General for NSW [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Blanks [2016] NSWSC 361 R v Blanks [2016] NSWSC 707 State of New South Wales v Thomas (Final) [2011] NSWSC 307 Category: Principal judgment Parties: Attorney General of NSW (Plaintiff) Judith Thelma Blanks (Defendant) Representation: Counsel: R Rodger (Plaintiff) C Goodhand (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid Commission NSW (Defendant) File Number(s): 2021/26127 Publication restriction: None Judgment 1. By way of a summons filed on 29 January 2021, the Attorney General for New South Wales (the plaintiff) seeks orders pursuant to Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") that the defendant, Judith Thelma Blanks, be subject to orders for the extension of her status as a forensic patient, initially on an interim basis, and then for a period of five years. 2. The matter comes before the Court for the purposes of the preliminary hearing. At this time, the plaintiff seeks: 1. An order pursuant to clause 6(5) of sch 1 to the Act: 1. appointing two qualified psychiatrists, psychologists and/or registered medical practitioners to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations; and 2. directing the defendant to attend those examinations 1. An order pursuant to clauses 10 and 11(1) of Schedule 1 of the Act that the defendant be subject to an interim extension order commencing from 31 March 2021 for a period of 3 months. 1. Ms Rodger appeared for the plaintiff. Ms Goodhand appeared for the defendant. I was assisted by their thorough submissions. 2. As set out in the consent to act as tutor dated 4 February 2021, Dr Katherine Johnson has consented to act as tutor for the defendant in these proceedings. 3. The defendant is currently a forensic patient within the meaning of s 42 of the Act. She comes to be a forensic patient because on 1 April 2016, following a special hearing pursuant to s 19 of the Act, Hall J found the defendant not guilty of murder but guilty of manslaughter by unlawful and dangerous act. His Honour imposed a limiting term of 5 years and the defendant was referred to the Mental Health Review Tribunal (MHRT) and detained in a mental health facility. [1] 4. Having been granted phased release and then full conditional release, she has been living in the community with her daughter since April 2020. 5. The limiting term expires on 31 March 2021. 6. As such, unless I make the orders sought by the plaintiff, the defendant will cease to be a forensic patient on 31 March 2021: s 52(2)(a) of the Act. 7. The defendant: 1. Consents to proposed order 4 of the Summons (that is, dealing with access to the Court file); 2. Opposes proposed order 3 of the Summons (that is, by way of final relief an order for extension of her status as a forensic patient); and 3. Neither opposes nor consents to orders 1 and 2 (being the order appointing the qualified psychiatrists and an order for an interim extension order). 1. The defendant submits (correctly) that, irrespective of the defendant's position, the Court must satisfy itself that an interim order should be made on the material before it. [2] 2. Having not formally consented to or opposed the imposition of an interim order, the defendant made detailed submissions as to why I would not be satisfied that an order should be made. 3. In support of his application the plaintiff relies on an affidavit of Rebecca Iacono affirmed 29 January 2021 as well as an extensive bundle of material exhibited thereto. I have had regard to that material. 4. The defendant relies on an affidavit of Lucia Noyce affirmed 19 March 2021. There is a report from the community and mental health nurse annexed to the affidavit, bringing the defendant's current status up to date. The legislative scheme 1. The provisions under which the plaintiff may seek orders for extension of the plaintiff's status as a forensic patient have been the subject of consideration in a number of decisions of this Court. The provisions were recently reviewed by me in both Attorney General for New South Wales v Peckham (Final) [3] and Attorney General for New South Wales v Peterson [4] . 2. The circumstances in and the stage at which the plaintiff comes to Court seeking interim orders are similar to those in Peterson and the same principles apply. I repeat my observations in Peterson as follows: "7. The objects of pt 5 of the Act, which deals with forensic patients and correctional patients, are set out in s 40, which relevantly provides: 40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public; (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition; … (e) to give an opportunity for those persons to have access to appropriate care; (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims. 8. I would have regard to the objects of the Part in making any determination in respect of the plaintiff's application. 9. Section 54A of the Act provides that a person's status as a forensic patient may be extended in accordance with sch 1 to the Act. 10. An application for an extension order must be supported by the documentation referred to in cl 5 of sch 1. Clause 6 sets out the pre-hearing procedures, including the procedure in relation to a preliminary hearing. A preliminary hearing is to be conducted by the Court within 28 days after the application is filed in the Court. 11. The Court may make an interim extension order in the circumstances set out in sch 1 cl 10 of the Act as follows: 10 Interim extension order The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court: (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order……. … 13. It is important also to emphasise that in considering whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order (for the purposes of sch 1 cl 10(b)) — that is, whether an extension order might be made — regard must be had to the matters set out in sch 1 cl 7(2) of the Act. 14. The persons who can be made the subject of an extension order are only those who fall within the criteria set out in sch 1 cl 2(1) of the Act as follows: 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. 15. It follows that an extension order can only be made if the forensic patient poses an unacceptable risk within the meaning of sch 1 cl 2(1)(a) and that unacceptable risk cannot be adequately managed by other less restrictive means as referred to in of sch 1 cl 2(1)(b) of the Act. … 17. It is not necessary, at the preliminary stage, that the Court be satisfied that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, the making of an extension order would be justified. 18. The scheme established under the Act, involving a preliminary hearing followed by a final hearing, is similar to the scheme established by the Crimes (High Risk Offenders) Act 2006 (NSW) ("HRO Act"). As has been emphasised in respect of a preliminary hearing under the HRO Act, [4] on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is not necessary for the Court to predict the ultimate result or assess the likelihood of the extension order being made. The Court is not considering any evidence that might be adduced by the defendant on the final hearing which might cast doubt on the matters set out in the documentation. 19. However, it remains for the plaintiff to establish its entitlement even to an interim extension order and an order for examination. There is a threshold to overcome, being that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order…." The defendant's background 1. The defendant is a 61 year old Aboriginal woman. She has a family history of mental illness with 3 of her brothers and 3 of her sisters having also been diagnosed with forms of mental illness. She is one of 8 children. 2. She commenced drinking alcohol around the age of 14. She has smoked cannabis for most of her adult life but denies using other illegal drugs. She suffers from various physical conditions such as osteoporosis, a lung condition and gastric pain. Prior to the index offence she frequently used anti-depressant and pain-killing medication. 3. She grew up in the Mt Druitt and Plumpton areas and attended both primary and high school. After school, she worked as a process worker. She had 4 children. She married at the age of 21 and was married for a period of 24 years. 4. On being charged with the index offence the defendant was granted bail on 14 April 2015. She remained on bail for approximately a year during which time no breaches of bail were recorded. She was taken into custody on 1 April 2016. 5. She was transferred to the forensic hospital on 27 October 2016 and on 29 May 2018 she was transferred to Cumberland Hospital, Bunya Unit. 6. On 7 October 2020, having already participated in approximately 6 months of leave without any rule violation, the MHRT made an order for conditional release. 7. She has lived in the community with her daughter without incident for 12 months. The index offence 1. On 15 January 2012, the defendant killed her partner, Shayne MacDonald. She was charged with his murder. 2. On 25 May 2015 she was found unfit to be tried by RS Hulme AJ and referred to the MHRT. She was declared unfit to stand trial having regard to psychiatric evidence as to her lack of understanding of the legal proceedings and probable cognitive deficits which would have made it difficult to provide instructions and understand legal advice or the legal implications of entering a plea. 3. Then on 1 September 2015 the MHRT found her unfit having regard to issues relating to memory, understanding the evidence and providing instructions. [5] 4. The circumstances of the offending are set out in the judgment of Hall J of 1 April 2016 (following a special hearing). His Honour found the defendant not guilty of murder but guilty of manslaughter. [6] 5. The defendant and her partner had been involved in a volatile relationship. During the period of their relationship, both persons had been alcoholics. There had been prior incidents of physical violence by the offender to the deceased during the relationship, although Hall J found that they were not in any way premeditated or planned acts of violence. 6. His Honour accepted that there was no evidence of any motive to inflict death or grievous bodily harm. The offending conduct occurred whilst the defendant and the deceased were camping together. She had been sitting, using a knife to cut vegetables for an evening meal when an argument ensued. Whilst holding the knife, she lashed out in an upwards movement from her seated position. 7. The defendant did not admit to the circumstances of the offending as found by Hall J, suggesting that it was an accident or fall. However, his Honour accepted that she had lied and her answers in the ERISP interview should be considered as evidence of consciousness of guilt. 8. Hall J accepted that her actions, although unlawful and dangerous, exhibited features characteristic of a spontaneous reactive action, devoid of any actual intention to inflict grievous bodily harm. 9. The knife entered the deceased's left thigh and cut the femoral artery. He died as a result of that injury. Hall J accepted that her conduct carried with it an appreciable risk of serious injury and as such the offence of manslaughter was established. 10. As his Honour said, the case was quite different from one where an accused person chased or confronted the deceased with a knife with intent to kill or cause grievous bodily harm. The defendant was using a knife initially for an ordinary domestic purpose. She lashed out but her acts were not premeditated or planned acts of violence. 11. His Honour accepted that the medical evidence established that she suffered from cognitive and psychological dysfunction due to her alcohol/drug disorder. Criminal history 1. The defendant's criminal history prior to the index offence was limited. It consisted mainly of some drug possession charges and alcohol-related driving offending. She had also been convicted of having goods in custody (in 2008) and of contravening a restriction in a non-domestic apprehended violence order (relating to a dispute with her neighbour) in 2000. 2. The plaintiff submits that in relation to the offences of violence (which can only be a reference to the apprehended violence orders in 2000 and the index offence), a consistent degree of paranoia and delusion contributed to the offending behaviour. I am uncertain of the basis of that submission. 3. In my view, the defendant's criminal history, prior to the index offence, does not demonstrate a pattern of violence or even any real violence at all. Having said that, the circumstances of the offending in 2012 suggests that in an alcoholic state, and with a knife in her hand, she lashed out at the deceased. It is certainly significant that she was apparently unable to control her response or reaction to the argument in which she found herself at the time. However, it is clear that her inability to do so was in a very large part related to her alcoholic state. The views of the MHRT on release into the community 1. The Tribunal ordered that the defendant be allowed unsupervised overnight leave for up to 7 nights per week for a period of 6 months from 7 April 2020. 2. The defendant has resided with her daughter and two grandchildren since then. 3. On 2 October 2020 the MHRT reviewed the defendant and ordered that she be released in the community subject to a number of conditions, including that: 1. She accept, meet with and be managed by a case manager from the Central Coast Community Mental Health Service; 2. She accept and be treated by and follow the recommendations of a psychiatrist; 3. She not take any legal drugs or substances other than those prescribed by a treating psychiatrist or registered medical practitioner; 4. She only consume alcohol in accordance with such directions and approval given by her case manager; 5. She live at the address where she is currently living; and 6. She not engage in unlawful conduct that could give rise to reasonable apprehension of safety to her or any member of the public. 1. As set out in its reasons, the MHRT noted that pursuant to s 49 of the Act, it must be satisfied that the safety of the patient or any member of the public would not be seriously endangered if leave is granted. Plainly, the Tribunal was so satisfied. Of course, I am considering a different test. 2. The Tribunal had regard to a number of expert medical opinions including psychiatric reports of Dr Nesvaderani and Dr Nadeswaran as well as the Community Forensic Mental Health Service ("CFMHS") reports of Ms Marsh and Dr Soon, the nursing report of Ms Nicholls as well as Mr Stevens and the occupational report of Ms Lo and a report from a social worker, Ms Williams. 3. As the Tribunal noted, on recent medical examination, that is, prior to October 2020, the defendant demonstrated no features of thought disorder and there were no psychotic features or mood disorder. 4. It considered that she had good insight into her illness, substance abuse issues and understood the requirement for medication. It noted that she had responsibly utilised her unsupervised overnight leave without incident in the prior 6 months. There was no evidence of any physical aggression or non-adherence to the treatment plan or any violation in the earlier 6 months. 5. The Tribunal considered that she fell into a group of people who were at low risk of future violence, serious harm and imminent violence. It noted that her past violent behaviour occurred in the context of intoxication, heightened threat perception from complex trauma and interpersonal conflict. It also noted that she was declared unfit to be tried because of her inability to participate in a discussion regarding her past behaviour in any meaningful manner. She had widespread cognitive impairment which impaired her ability to participate in a trial. 6. The nurses who reported to the Tribunal observed that they had engaged with the defendant for a period of 3 months and had no concerns. She engaged well with her psychologists and the group that she attended. 7. According to the report of Samantha Lowe, the occupational therapist attached to the Bunya Unit dated 18 September 2020, the defendant is independent in all aspects of care. She had been living with her daughter since April 2020 and she shares the domestic responsibilities. She has a mobile phone. She receives the disability support pension. Her daughter manages her financial affairs. Her daughter takes her to appointments with the Mental Health team. 8. The Tribunal accepted the assessment of the treating team that the defendant presented no unacceptable risk of danger to herself and others by the proposed conditional release. 9. It was observed that family and other supports were in place to ensure that, if she became unwell, she would be provided with the necessary assistance. She would remain supervised by the Central Coast Community Mental Health Service team and the case manager, Ms Jackson. 10. Having regard to these matters, the Tribunal ordered her conditional release. Compliance with obligations whilst a forensic patient 1. As of October 2020, the defendant's daughter reported that the defendant had exhibited no signs of being unwell and was getting along well with her grandchildren. 2. The plaintiff accepts that the defendant has progressed well since being detained as a forensic patient and during her leave of absence prior to her conditional release on 2 October 2020. Further, the plaintiff accepts that the progress notes obtained from the Central Coast Community Mental Health Service suggest that she appears to be responding well in the community, although it says that she is subject to the stringent conditions imposed by virtue of her status as a forensic patient. 3. According to those progress notes, she has no signs of acute illness, no signs of thought disorder, no psychotic or mood disturbance and does not use drugs or alcohol. 4. She remains in receipt of a NDIS support plan which she will continue to receive into the foreseeable future. The plan is reviewable every 12 months. 5. Unfortunately, there is limited evidence available as to the full extent of that plan. The plaintiff submits that such evidence is relevant in considering whether the defendant might be managed by less restrictive means as referred to in clause 2(1)(b) to sch 1 of the Act. 6. There is no evidence of any non-compliance issues during her period of release into the community. The defendant's mental state 1. The reports obtained for the purpose of the MHRT review into whether she would be released confirm that she suffers from: 1. complex post-traumatic stress disorder; 2. neurocognitive deficits due to substance misuse; and 3. a substance use disorder which is in remission. 1. On a review by the Central Coast Community Mental Health Service team on 29 June 2020, the defendant reported that she became anxious when meeting new people or strangers and that her mood was up and down. She could be irritable at times. She said that when unwell in the past she used to be paranoid and had auditory hallucinations. She said she had used drugs and alcohol 10 years ago and that negatively affected her mental state. 2. According to the reports of psychiatrists, Dr Nesvaderani and Dr Nadeswaran from the Bunya Unit of Cumberland Hospital, she presented with no future risk management factors that were associated with future violence. There were sufficient management strategies and external supports in place to address potential risk factors. Further, she presented with a number of factors that would mitigate her risk of future violence, including: 1. supportive family, particularly the relationship with her daughter; 2. engagement with NDIS; 3. abstinence from substance abuse; 4. creative and artistic pursuits; and 5. current living situation and engagement with professional support. 1. It was also considered that she had the capacity to engage in meaningful employment which would be an additional factor which would protect her from any future violent behaviour. Most recent medical evidence / risk assessment 1. The plaintiff sought to have the defendant medically examined for the purposes of the proceedings. She declined to attend. Instead the plaintiff obtained expert opinions (without the benefit of the examination) from Dr Jeremy O'Dea, by way of reports dated 14 December 2020 and 12 February 2021. 2. As Dr O'Dea notes, as the defendant declined any examination, he was not in a position to provide a definite opinion regarding his psychiatric diagnosis and/or psychiatric risk management levels. However, he did undertake a thorough review and analysis of the medical evidence (being the medical evidence available to the MHRT) and offered a number of opinions, subject to the limitations as expressed in his reports. 3. Firstly, he said that based on his review of the documentation, the defendant's primary psychiatric diagnosis would be substance abuse disorder. Whilst he noted that the defendant reported being abstinent from alcohol, cannabis and other illicit substance use since the index offence, he considered that particularly severe chronic disorders, such as that which the defendant previously suffered, are associated with long term risks of relapse. 4. He also considered that the defendant suffers from neuro-cognitive impairment which is directly related to her history of substance abuse. He noted this was a chronic condition, although it could stabilise and improve in individuals who remain abstinent from alcohol and other illicit substances. 5. Finally, he opined that the defendant suffers from mood disorder or complex PTSD. 6. He was asked how each condition might affect her risk of reoffending. He said he was not able to provide a definitive opinion but it would be reasonable to assume that any further alcohol or drug use may increase the risk of the defendant causing serious harm to others. 7. He opined: "If Ms Blank were to cease to be a Forensic Patient and were to be non compliant with the conditions of her release, in particular, if she were to use alcohol or illicit substances, then it would seem reasonable to consider that she may pose a risk of causing serious harm to others. Whilst I note that she was reportedly engaged in her community treatment program, I am not in a position to provide an opinion as to whether she would remain engaged in such a treatment program on a voluntary basis." 1. Dr O'Dea was also asked whether there may be less restrictive means available in providing for her ongoing management. He said he would defer to the Central Coast Community Mental Health Service team but he did note that the conditions of release imposed on the defendant can be more proscriptive than the conditions of a community treatment order. 2. Finally, in response to a question as to what the appropriate period would be for a supervision order, he suggested that her treatment needs and risk profile are long term and five years duration would be appropriate, although again he was not in a position to offer a definitive opinion. 3. Dr O'Dea was subsequently asked to review the progress notes of the Central Coast Community Mental Health Service team. He considered that her engagement with the Central Coast Community Mental Health Service team is a positive and encouraging process. Yet, her reference to anxiety, insomnia and hearing voices, her reported problems with irritability and reported reluctance to engage in drug and alcohol counselling, points to her psychiatric disorder not being in full remission. She could be liable for relapse, if she becomes non-responsive to her treatment programme. 4. Annexed to the affidavit of the solicitor for the defendant affirmed 19 March 2021 is a report from Angela Jackson dated 17 March 2021. Ms Jackson is the mental health clinician working with the defendant as part of the Community Mental Health team. She has been her case manager since 8 July 2020. Ms Jackson says that to date, there is little to no observable signs of risk of relapse or recidivism. 5. Further, she says that there have been incidents that have placed the defendant at risk of relapse but the defendant has shown tenacity and resilience against recidivism. One such incident involved a care provider taking the defendant to a club. The carer was consuming alcohol. The defendant reduced contact and informed her daughter that she was reluctant to continue with the service. A letter was written alerting the support organisation and requesting more suitable arrangements. 6. The plaintiff objected to this report on the basis that, if it had been served in a more timely manner, it might have been shown to Dr O'Dea. That may be so but I have difficulty anticipating how it could have altered Dr O'Dea's opinion other than in a way favourable to the defendant. Determination 1. At this stage, the plaintiff is only seeking interim orders, that is, an interim extension order and an order requiring that the defendant be medically examined. The application has been made in the time required and the plaintiff has complied with the required pre-hearing procedures. 2. The orders sought (both the appointment for medical examinations and the interim extension order) can only be made if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. The orders appointing the medical experts must be made if the Court is so satisfied. However, there remains a discretion in the Court whether to make the interim extension order even if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. 3. The plaintiff bears the onus of proof and persuasion to a high degree of probability. 4. In Cornwall v Attorney-General for NSW [2007] NSWCA 374, the Court (Mason P, Giles and Hodgson JJA), considering similar terms used in the Crimes (High Risk Offenders) Act 2006 (NSW) (then called the Crimes (Serious Sex Offenders) Act 2006 (NSW)), stated (at [21]): "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt." 1. The meaning of 'unacceptable risk' should be considered in the context of the provision in which it appears and having regard to the objects of the Act: Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 at [14]; State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58] (Lynn); Attorney General for New South Wales v Peckham [2019] NSWSC 1775 at [98]. 2. Having regard to sch 1 clause 2 of the Act, it is necessary to be satisfied to a high degree of probability both that: 1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and 2. the risk cannot be adequately managed by other less restrictive means. 1. In practical terms, the only difference between what must be established on a preliminary application rather than a final application is that for the purposes of interim orders, it is not necessary that the plaintiff prove the matters alleged in the supporting documentation. I merely consider whether those matters would, if proved, justify the making of an extension order. 2. On one view, this is not a high bar, but it is still necessary to focus on the matters alleged in the supporting documentation. 3. Those matters are not the content of the plaintiff's submissions. The supporting documentation is the material relied upon by the plaintiff in support of the application. That supporting documentation may contain assertions of fact which may be in dispute or untested opinions and statements about the defendant which may be subject to challenge on a final hearing. [7] 4. Further, in considering whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, I should have regard to the matters set out in clause 7(2) to sch 1. 5. In this particular matter, there are limitations on the evidence relating to the matters set out in clause 7(2). Whilst there may be an issue as to the weight I should give Dr O'Dea's opinions, it seems to me that I am entitled to have regard to them insofar as they go. The real difficulty for the plaintiff in relying on Dr O'Dea's reports is that even Dr O'Dea offers only limited support for the essential proposition advanced by the plaintiff, which is that the defendant poses an unacceptable risk of causing serious harm to others if she ceases being a forensic patient. 6. The plaintiff relies on the observations of Basten JA in Lynn at [126]: "The nature of the risk he posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders." [8] 1. I have regard to his Honour's observations, although it is also important to observe that no one factor is determinative. That is, the fact that the defendant committed an offence which resulted in the loss of life of her partner in 2015 is not determinative of this application. Similarly, the fact that she has been living in the community without incident for a period of 12 months is not determinative. They are merely factors to be considered. 2. The difficulty in this application for the plaintiff is, in my view, that there is very limited evidence which would justify an extension order, assuming that the matters alleged in the supporting documentation would be proved. 3. Without meaning to repeat what I have already said, the matters alleged in the supporting documentation might be summarised as follows: 1. The index offence involved violence but, other than that, the defendant's criminal history does not involve offences of violence; 2. The offending which led her to be in this position was a one-off. She lashed out at her partner while she was holding a knife during domestic duties and struck him in the thigh; 3. She suffers from cognitive impairment but there is no evidence that her cognitive impairment predisposes her to any violent tendencies. Further, the evidence tends to suggest that her abstinence from alcohol and cannabis may lead to an improvement in her cognitive condition; 4. She was formerly an alcoholic. Her offending was linked to her alcohol abuse. She has not abused alcohol for six years; 5. Her mental health issues relate to her PTSD and earlier substance abuse disorders (which are now in remission); 6. In practical terms she has been living in the community with her daughter for a period of 12 months; 7. She has insight into her issues. It is clear from the progress notes of the Central Coast Community Mental Health Service team that she has insight into the dangers of relapsing into alcohol and cannabis abuse. There is evidence that she is determined not to do so; 8. There is no evidence that she poses a high risk of reoffending. Indeed, to the extent that there is any valid opinion, it is that she poses a low risk. The MHRT considered that she fell into a group of people who were in the low risk category; 9. She demonstrates no features of thought disorder, psychotic features or mood disorder. She understands the requirement for medication and to continue to seek treatment; 10. There are a number of factors which mitigate her risk of future violence, including her supportive family, engagement with NDIS, abstinence from substance abuse, and ongoing engagement with professional support; 11. There is no evidence that remaining under the supervision of the MHRT(that is the coercive power of the MHRT) will decrease the risk that she will relapse into alcohol abuse; and 12. This is not a case in which the defendant's psychiatric condition or cognitive impairment or ongoing behaviour makes it inherently likely that there might be a relapse. It is not alleged in the supporting documentation that there are factors which makes it likely that she will relapse. 1. Of course, there is no certainty in what may occur in the future but I am assessing risk not certainty. 2. In my view, all of the matters to which I have referred would, if proved, point to her not posing an unacceptable risk of causing serious harm to others if she ceases being a forensic patient. 3. Of course the MHRT plays a very important role in providing oversight to forensic patients and imposing conditions upon release into the community. They may have a coercive effect on a person such as the defendant. However, there is again no evidence, that, but for that coercive effect, the defendant is likely to cease treatment and engagement with professional support, remove herself from her daughter's home or relapse into alcohol and/or substance abuse. 4. There is no evidence that the removal of both the coercive power available to the MHRT and the supervisory role that it performs would increase the risk of the defendant causing serious harm to others. Plainly, she does not pose an unacceptable risk in her current stable and supported state. 5. As part of its written submissions, the plaintiff provided the following summary: "In these circumstances, the State has discharged the onus of satisfying the Court that, if the matters alleged in its supporting documentation are taken as proved, an EO would be justified. That is, the material, or in this case rather the lack thereof, is capable of satisfying a judge to a high degree of probability that the Defendant (a forensic patient) poses an unacceptable risk of causing serious harm to others if she ceases being a forensic patient. Further, there is no evidence presently available as to the risk being adequately managed by other less restrictive means. The circumstances of this case are unusual, in that the lack of evidence available to the State is due, in part, to the fact that the Defendant declined to be assessed by the State's expert. Given the risk must be assessed in the absence of protective factors, it must be assumed that at this preliminary stage that the expiry of the limiting term will result in the cessation of supervision and management." (citations omitted). 1. In my view, there are two fundamental problems with this concluding submission being: 1. The plaintiff bears the onus of establishing, even at this preliminary stage, that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I would not be so satisfied based on a lack of material. Whilst it may be unfortunate that the plaintiff declined to be examined, I have had regard to Dr O'Dea's opinions in any event; 2. Having regard to the use of the conjunctive "and" in clause 2 to sch 1, it is necessary for the plaintiff to prove both unacceptable risk and that the risk cannot be managed by less restrictive means. The submission that there is no evidence presently available as to the risk being adequately managed by other less restrictive means is based on the assumption (rather than evidence) that the reason that the plaintiff has not relapsed or is stable is because of the conditions imposed by the MHRT and the ability to enforce them. 1. The plaintiff correctly submits that the risk must be assessed in the absence of protective factors but it does not follow that I must also assume that the expiry of the limiting term and the defendant ceasing to be a forensic patient will result in the cessation of supervision and management by the community mental health team, a psychiatrist and other related support persons. I do not agree that that is an assumption which I must make. 2. The plaintiff's reference to the observations of Basten JA in Lynn at [126] do not support that submission. His Honour does not say that it must be assumed that at the preliminary stage that the expiry of the limiting term will result in the cessation of supervision and management by all mental health support persons. If this is merely a reference to the supervision by the MHRT then of course that must be assumed but there is no evidence that the defendant will cease treatment merely because she ceases to become a forensic patient. 3. There is no evidence that the defendant poses any real risk at all in her current stable state. She continues to suffer from cognitive impairment but there is no evidence that that of itself creates any risk factors in terms of future violence. 4. Indeed, it is clear that it was alcohol abuse which impacted upon her cognitive impairment and a number of other factors which led to the index offence. 5. I am thus not satisfied that the defendant would pose an unacceptable risk of causing serious harm to others if she ceases being a forensic patient. 6. It is not necessary to further consider alternatives for her management as the plaintiff has not established that the defendant would pose an unacceptable risk if she ceases to be a forensic patient. 7. As such, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. 8. In the circumstances, the summons is dismissed. 9. I order the plaintiff to pay the defendant's costs. ********** Endnotes 1. R v Blanks [2016] NSWSC 707. 2. Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [7] (per Beech-Jones J) 3. [2019] NSWSC 1775. 4. [2020] NSWSC 651. 5. Determination of the Tribunal on Reasons dated 1 September 2015 6. R v Blanks [2016] NSWSC 361 7. [2020] NSWSC 651at [83]. 8. (2016) 91 NSWLR 636; [2016] NSWCA 57. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2021