Attorney General of NSW v Michael John Skerry [2015] NSWSC 1075

Supreme Court New South Wales

Medium Neutral Citation: Attorney General of NSW v Michael John Skerry [2015] NSWSC 1075 Hearing dates: 29 July 2015 Date of orders: 29 July 2015 Decision date: 29 July 2015 Jurisdiction: Common Law Before: Hamill J Decision: Orders made in accordance with the short minutes of order. Catchwords: CIVIL – Mental Health Forensic Provisions Act 1990 (NSW) – application for interim extension order – forensic patient – limiting term due to expire – interim extension order granted Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: The Attorney General v Skerry (Preliminary) [2015] NSWSC 859 Category: Procedural and other rulings Parties: Attorney General of New South Wales (Plaintiff) Michael John Skerry (Defendant) Representation: Counsel: Ms G Wright (Plaintiff)

Solicitors: Crown Solicitors Office Legal Aid NSW File Number(s): 2015/167638

Ex tempore Judgment 1. The case before me concerns an application by the Attorney General in relation to Michael John Skerry. Mr Skerry is currently a forensic patient pursuant to the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW). 2. The background and circumstances leading to his having that status are set out with commendable clarity in the judgment of RA Hulme J in The Attorney General v Skerry (Preliminary) [2015] NSWSC 859. It is unnecessary for me to repeat his Honour's detailed analysis of the background other than to say that a body of psychiatric opinion, which has been placed before me on the hearing of this application, establishes that Mr Skerry suffers from schizophrenia with an associated poly-substance dependence. 3. He was unfit to stand trial in relation to a sexual offence involving an outrage committed on a middle-aged woman, and he was found to be guilty on the limited evidence available and subject to a limiting term. When that term expired he became, by operation of the legislation, a forensic patient. An application was then made by the Attorney for him to remain a "forensic patient". 4. There was a contest before RA Hulme J, in which counsel for Mr Skerry contended that he should cease to have that status, and rather be an "involuntary patient" under what might generally be called the civil aspects of the mental health legislative regime. That question fell to be decided by reference to the provision in cl 2 of the Mental Health (Forensic Provisions) Act. It really came down to a consideration of whether or not this court was satisfied to a high degree of probability that Mr Skerry posed an unacceptable risk of causing serious harm to others and whether or not that risk could adequately be managed by less restrictive means. 5. Hulme J concluded that the matters required to be established were established, and, in particular, that whilst there may not be in the immediate term any practical difference between a person being a forensic patient on the one hand and an involuntary patient on the other, the means by which a person's status would change was more closely controlled by the court in the case of a forensic patient and for those reasons he formed the view that the requirement in subclause 2(1)(b) was also satisfied, there being overwhelming evidence in support of cl 2(1)(a). 6. Having perused the material available, I am of a similar view. The question today is largely administrative in the sense that the parties seek a timetable in order to progress the matter to a final hearing, but in the meantime there is a need for consideration of whether the interim extension order made by Hulme J should be renewed. Having considered the material I have no doubt that it should be, and for essentially the same reasons as those given by Hulme J. Accordingly, I indicated I would make the order. 7. There then became a problem concerning the date. The parties had agreed between themselves that the matter should be listed for final hearing on 9 and 10 September. The difficulty was that those dates were otherwise occupied by a number of other cases. However, in consultation with the Chief Judge at Common Law it was decided the case would be listed on that date. The reason for the urgency is that by operation of the legislative scheme, the final orders must be made by 4 October 2015, and in the meantime only three interim extension orders can be made. That is the reason why the matter has been listed on that date, along with the necessity or desirability to ensure that counsel, who have already appeared in the matter before Hulme J and who are seized of the large volume of material, can be available. The only other date the court had before 4 October was inconvenient, it seems, to almost all of the lawyers involved. 8. For those reasons, I make orders in accordance with the short minutes of order helpfully provided by the parties.