Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v HRM (No 2) [2016] NSWSC 751 Hearing dates: 6 June 2016 Decision date: 09 June 2016 Jurisdiction: Common Law Before: Button J Decision: (1) An order pursuant to cl 6(5) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of HRM and to furnish reports to the Supreme Court on the results of those examinations, and directing HRM to attend those examinations. (2) An order pursuant to cl 10 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 that HRM be subject to an interim extension order commencing on 10 June 2016 for a period of 28 days. Catchwords: CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – application for medical examinations pursuant to cl 6(5) - application for interim extension order – use of pseudonym pursuant to s 162 of the Mental Health Act 2007 (NSW) Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW), s 162 Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 5, ss 42, 47(1)(b), Sch 1, cll 2, 2(1)(a), 2(1)(b), 6, 6(5), 10 Cases Cited: Attorney General for the State of New South Wales v XY [2014] NSWCA 466 Attorney General of New South Wales v [HRM] [2016] NSWSC 158 Attorney-General of NSW v Doolan [2015] NSWSC 1773 Attorney-General of NSW v [HRM] (No 2) [2014] NSWSC 288 Attorney-General of New South Wales v TP by her tutor Jennifer Thompson [2015] NSWSC 1656 Attorney General of New South Wales v X [2013] NSWSC 1392; (2013) 235 A Crim R 17 Lynn v New South Wales [2016] NSWCA 57 NSW Minister for Mental Health v BB [2015] NSWSC 1418 Sarah White v Local Health Authority [2015] NSWSC 417 Category: Procedural and other rulings Parties: Attorney General of New South Wales (Plaintiff) HRM (Defendant) Representation: Counsel: G Wright (Plaintiff) S Kluss (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2016/154552 Judgment Background 1. HRM (the patient) was born in November 1972, and is accordingly aged 43 years. He grew up in Mt Druitt, one of nine children. His father worked as a scrap metal dealer, and there is a suggestion that the childhood of the patient was marred by domestic violence. He left school in Year 8 as a result of repeated truancy. From an early age he abused alcohol and cannabis, and has endured periods of homelessness. Many years ago he fathered a daughter, but now has little contact with her. 2. Most significantly, there is no doubt but that he has an intellectual disability, perhaps caused by an episode of near-drowning when he was a child, during which his brain may have been deprived of oxygen. His IQ has been assessed as being 69, he is in the bottom 1% of the population in his intelligence, and he functions broadly at the level of a child who is aged between 8 and 10 years. 3. During the period between 1996 and 2006, he developed a criminal record that was not of the greatest seriousness, although he was sentenced to imprisonment at least once. It may be that his level of intellectual functioning was never deeply investigated during that time, in light of the relative lack of seriousness of the offences of which he was convicted. 4. On 4 April 2006, the patient was drinking heavily with an associate. The patient drunkenly entered the home of a female neighbour who was a stranger to him, and restrained and assaulted her in her own home. Thereafter he had penile/vaginal and penile/anal intercourse with her, without her consent, whilst her 5 year old daughter was present. DNA evidence conclusively proved that the patient was the perpetrator. 5. On 25 August 2008, having been committed to the District Court of New South Wales for trial, he was found unfit to stand trial because of his intellectual disability. 6. On 4 September 2009, at the conclusion of a special hearing, Murrell SC DCJ (as her Honour then was) found, on the limited evidence available, that the patient had committed three sexual offences against the victim. 7. On the same date, her Honour imposed a total overall limiting term upon the patient of 5 years (there was, of course, no non-parole period imposed). The first of the limiting terms dated from 1 January 2009. 8. As a result of those orders, the patient became a forensic patient, pursuant to s 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW)(the MHFP Act). It can be seen that, unless extended, the total limiting term was to expire on 31 December 2013. 9. The patient was detained by way of an order of the Mental Health Tribunal (the Tribunal) until 26 August 2013, when he was released on a conditional release order to live in the community, pursuant to s 47(1)(b) of the MHFP Act. On all occasions since then, whilst living in the community, he has been subject to reasonably rigorous controls upon his behaviour and living circumstances. 10. On 27 November 2013, Schedule 1 of the MHFP Act (the Schedule) commenced, whereby a regime of extension by this Court of the status of persons as forensic patients was created. 11. On 21 March 2014, Garling J imposed an extension order upon the patient which had the effect of extending his period as a forensic patient until 21 March 2015. Reference should be made to the judgment of his Honour: Attorney-General of NSW v [HRM] (No 2) [2014] NSWSC 288. 12. On 10 June 2015, Rothman J imposed a further extension of the status of the patient as a forensic patient: see the judgment of his Honour at Attorney General of New South Wales v [HRM] [2016] NSWSC 158. That extension expires on 10 June 2016. 13. Before and between each of those applications, various interim extension orders were made by judges of this Court. My understanding is that there has never been a period in the last many years when the patient was not a forensic patient. Therefore, there has not been a period for the past many years during which he was living unconditionally in the community. 14. As I have said, the patient began to live in the community again on 26 August 2013. He is under the care of the Department of Ageing, Disability and Home Care, and has received substantial assistance from the Community Justice Program (CJP). He has attended upon a psychiatrist, Dr O'Dea; has taken medication to reduce his desire to consume alcohol; and has also taken anti-libidinal medication. He has lived independently in an apartment in the south-western suburbs of Sydney. Most importantly, since his release, he has not been charged with, or convicted of, any criminal offence, let alone an offence of violence or sexual violence. 15. His time in the community came to an end on 8 January 2016, when the Tribunal issued an order that the patient be returned to detention. In a nutshell, the grounds were that the patient had been away from his accommodation without permission; that he had made recent inappropriate sexual comments about a number of women; that he had failed to attend for alcohol testing, and had informed those caring for him that he had consumed alcohol; that he had failed to attend an appointment with his psychiatrist; and that Dr O'Dea doubted whether the patient was taking his anti-libidinal medication at that time. 16. During the time when he was detained in a mental health facility, he was assessed again. Despite some faint suggestions of hallucinations or schizophrenia in his medical history, a firm diagnosis was given by his treating psychiatrist that the patient is free from psychosis or other psychiatric illness. 17. The patient was released again on 8 April 2016, and since that time has been living independently but with substantial support, pursuant to conditions imposed upon him by the Tribunal. Preliminary application 1. It is in that context that, on Monday 6 June 2016, the matter came before me in the Duty List as a preliminary hearing, pursuant to cl 6 of the Schedule. The orders sought by the Attorney-General were that I appoint two psychiatrists, psychologists or medical practitioners to conduct examinations of the patient and provide reports about him, and that he attend those examinations. I was also asked, pursuant to cl 10 of the Schedule, to make an interim extension order, so that the status of the patient as a forensic patient would continue past the date of any final hearing. Those orders were resisted by the patient, who appeared through his tutor and was represented by counsel. 2. Because I was informed that the current interim order will expire late in the evening of Thursday 9 June 2016, this judgment is necessarily concise. 3. There was no dispute between the parties with regard to a number of matters. 4. First, the regime contained in the Schedule is similar but not identical to the regime contained in the Crimes (High Risk Offenders) Act 2006 (NSW)(the HRO Act). 5. Secondly, the predictive, contingent exercise to be undertaken by a judge of this Court at a preliminary hearing pursuant to the Schedule should be equated to the exercise undertaken pursuant to the HRO Act, and may be roughly equated with the task of a Magistrate determining whether or not to commit a defendant on a criminal charge: see Lynn v New South Wales [2016] NSWCA 57; and Attorney-General of NSW v [HRM] (No 2). 6. Thirdly, the patient is undoubtedly a forensic patient, and the mechanistic requirements for the making of an interim extension order have been made out. 7. The real question is whether I would be satisfied that the matters asserted in the documentary evidence placed before me, would, if proven, justify the making of an extension order (see cl 6(5) and cl 10(b) of the Schedule). That in turn leads one to reflect upon cl 2 of the Schedule, which is 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 (including classification as an involuntary patient under section 53). (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. 1. As one would expect, the patient has been assessed on many occasions over the past decade or so by psychiatrists, psychologists, and the Tribunal. At the hearing, most emphasis was placed by the parties upon the recent reports of Dr Ellis, forensic psychiatrist, and Mr Ardasinski, psychologist. 2. In summary, Dr Ellis has expressed the view in his reports of 12 May 2016 and 18 May 2016 that the patient falls within the moderate to high risk category for sexual reoffending, and that conditional liberty remains necessary. In particular, Dr Ellis is of the view that, if there were not an element of compulsion, all of the supports that have been put in place for the patient in the community would quickly fall away. Although Dr Ellis notes the potential benefit of a guardianship order, it is noted as merely one of a number of elements that he suggests as part of a management strategy for the patient. 3. Mr Ardasinski expresses the view in his report of 7 March 2016 that the patient falls in the moderate risk category of sexual violence relative to other adult male sexual offenders, but that that risk is unlikely to come to fruition. He also considers that conditional liberty is no longer called for, and that one would expect the patient to continue to take advantage of all of the support with which he has been provided voluntarily, including the day-to-day support (but not supervision) provided by New Horizons (a disability service that provides caseworker support in connection with the CJP). 4. Focussing on cl 2(1)(b) of the Schedule, Mr Ardasinski is also of the opinion that less restrictive alternative mechanisms are available, including the making of a guardianship order, whereby the patient could be effectively compelled to take anti-alcohol and anti-libidinal medication into the future. Submissions for the Attorney-General 1. Counsel for the Attorney-General emphasised the following aspects of the matter. 2. First, the gravity of what occurred in 2006. 3. Secondly, the fact that the intellectual disability of the patient is chronic and untreatable. 4. Thirdly, the fact that since 1 January 2009, at the latest, he has never lived in the community at unconditional liberty. 5. Fourthly, the recent multiple failures of the patient that culminated in his return to detention on 8 January 2016, demonstrating that his compliance with release orders has been problematic. 6. Fifthly, the fact that Mr Ardasinski is not an expert in the legal parameters of guardianship. 7. Sixthly, the fact that I am not, at this preliminary stage, being called upon to determine whether the test for making an extension order must or will be made out at a final hearing; rather, I am simply being called upon to predict whether that could reasonably occur. 8. Seventhly, if it be the case that, properly understood, cl 10 reposes in me a discretion not to make an interim extension order, even if satisfied that the test contained in that clause had been made out, nevertheless I would not exercise any discretion not to do so. Submissions for the patient 1. Counsel for the patient did not focus upon that portion of the substantive test contained in cl 2(1)(a) of the Schedule. In that sense, I understood her to be accepting generally that the test at the preliminary stage is not overly stringent, and that, on the evidence placed before me, I could be satisfied that it had been made out. 2. Rather, she focussed upon cl 2(1)(b) of the Schedule. As part of that, she submitted that if (contrary to expectation) the patient developed a mental illness that presented a risk of serious harm to himself or others, then he could be involuntarily detained pursuant to a separate legal mechanism. 3. She emphasised the optimism of Mr Ardasinski, not only about the risk that the patient presents, but also about his willingness to continue to receive help. And she submitted that the alternative mechanism of compulsorily assisting the patient by way of guardianship orders, especially with regard to medication, is a practical, preferable, and less restrictive way for any risk that the patient presents to be adequately managed. 4. As one would expect, she emphasised the fact that, although undoubtedly vulnerable to impulsivity due to his intellectual disability, the patient has only offended sexually on one occasion; that occasion was almost ten years ago; and he has not offended, sexually or otherwise, since he began living reasonably independently in the community almost three years ago. 5. She also submitted that he had, in the main part, complied with the conditions of his release, and that it was a positive sign that he had freely admitted to his caseworkers that he recently consumed alcohol. 6. In short she submitted that, on all of the evidence, the test, even at the preliminary stage, has not been made out. Determination 1. Turning to my determination, despite the reservations expressed by Dr Ellis, I accept the proposition that the patient does not suffer from psychosis or any other psychiatric illness. 2. I also accept the proposition that, except on a single occasion almost a decade ago, the patient has not shown any sign of sexual deviance. 3. I also accept that, despite the lapses that led to his return to detention earlier this year, he has been progressing quite well in the community, an achievement for which he should be commended. 4. Having said that, I am not engaged in the task of determining whether a further extension order should or will be made in the future. Rather, I am simply seeking to predict whether, in due course, such an order could reasonably be made (to paraphrase broadly the statutory test and judicial discussion of it). The fact that two judges of this Court have previously come to that view with regard to the patient, in broadly similar circumstances, is not irrelevant to that determination. 5. Nor is the fact that, despite the undoubted role that alcohol played in the commission of the offences, and despite my acceptance that the patient understands that he must refrain from drinking alcohol, nevertheless he has done so quite recently. 6. As well as that, I have considered the opinion of Mr Ardasinski that, in all likelihood, the patient would receive assistance from various sources willingly if he were not compelled to do so. There is a flavour throughout the documentary evidence placed before me of the patient resenting the various limitations that have been placed on his liberty; that is quite understandable, but does not lead to confidence that the patient would continue to receive that assistance if not compelled to do so. 7. Furthermore, the prospect of orders pursuant to the Guardianship Act 1987 (NSW) playing a similar role to status as a forensic patient was placed before Garling J as long ago as 5 March 2014: see [178] of his Honour's judgment. Such an application was also foreshadowed in recent correspondence from one of the persons caring for the patient. But no such orders have been made at this stage (perhaps for logistical reasons, in light of the current status of the patient). And in any event, in light of the different purposes and mechanisms of the Guardianship Act, I am not persuaded, on the material placed before me, that it could practically play the same role in requiring the patient to receive medication appropriately. 8. In short, I consider that, on the evidence placed before me, the Attorney-General has not provided a particularly compelling case for the making of an extension order at a final hearing, either in terms of the risk that the patient presents, or in terms of the absence of alternative measures of adequate management of him. But at this preliminary stage, I consider that the contingent, prospective test that I am called upon to apply has been made out by the Attorney-General. And I do not consider that there is any reason why I should exercise a discretion not to make an interim extension order. I shall therefore make the two orders sought at the preliminary hearing. Pseudonym order 1. Finally, counsel for the patient submitted that I should make an order that he be referred to in this judgment by way of a pseudonym only. 2. The provision relied upon is s 162 of the Mental Health Act 2007 (NSW), which is as follows: 162 Publication of names (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) to whom a matter before the Tribunal relates, or (b) who appears as a witness before the Tribunal in any proceedings, or (c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990, whether before or after the hearing is completed. Maximum penalty: (a) in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or (b) in the case of a corporation—100 penalty units. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person. 1. The issue that arose is whether that provision applies to proceedings in this Court, as opposed to proceedings before the Tribunal. 2. Different approaches have been taken to that question: in Attorney General of New South Wales v X [2013] NSWSC 1392; (2013) 235 A Crim R 17 a pseudonym order was granted by Johnson J; in Attorney General for the State of New South Wales v XY [2014] NSWCA 466 a pseudonym order was granted by Beazley P, McColl JA and Basten JA; in Sarah White v Local Health Authority [2015] NSWSC 417 a pseudonym order was granted by Slattery J; in NSW Minister for Mental Health v BB [2015] NSWSC 1418 a pseudonym order was granted by Bellew J; in Attorney-General of New South Wales v TP by her tutor Jennifer Thompson [2015] NSWSC 1656 a pseudonym order was granted by Schmidt J; and in Attorney-General of NSW v Doolan [2015] NSWSC 1773 a pseudonym order was not granted by Adamson J, with her Honour providing detailed reasons for not doing so. 3. Counsel for the Attorney-General neither consented to nor opposed the patient being referred to by a pseudonym in my judgment. 4. Until the question is authoritatively determined, and in light of the absence of detailed submissions before me and the exigencies of the situation, I am content to accept the submission of counsel for the patient for abundant caution, and to refer to the patient by way of a pseudonym. My judgment will be promulgated in that form. Orders 1. Accordingly, I make the following orders: 1. An order pursuant to cl 6(5) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of HRM and to furnish reports to the Supreme Court on the results of those examinations, and directing HRM to attend those examinations. 2. An order pursuant to cl 10 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 that HRM be subject to an interim extension order commencing on 10 June 2016 for a period of 28 days. ********** 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: 09 June 2016