Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v CT [2019] NSWSC 695 Hearing dates: 27 May 2019 Decision date: 27 May 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) Interim Detention Order for a period of 27 days commencing at midnight on 27 May 2019. (2) Confirm the final hearing date of 14 June 2019. (3) Direct that the Plaintiff ensures that draft conditions for an Extended Supervision Order are made available to the Court no later than close of business on 12 June 2019. (4) Direct that the Plaintiff ensures that all accommodation options for an Extended Supervision Order are explored and made available to the Court on the day of the final hearing. (5) Direct that all deponents and authors of expert reports be available for cross-examination on 14 June 2019 if required. (6) Warrant to issue under section 20 of the Crimes (High Risk Offenders) Act 2006 (NSW) to commit CT to a correctional centre for the period specified in the order. (7) Order under section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) to ensure that CT is available to appear at the final hearing on 14 June 2019 by video link. (8) Direct that any written submissions on the question of concurrent evidence of experts be filed by close of business on 12 June 2019. Catchwords: HIGH RISK OFFENDER – application for interim detention order – where offender opposes interim detention order – jurisdiction or power to make or continue an interim detention order - proper approach to determination of interim orders Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Category: Principal judgment Parties: State of New South Wales CT Representation: Counsel: P Aitken (Plaintiff) I Wallach (Defendant) File Number(s): 2019/00037393 Publication restriction: No publication of the Defendant's names. EX TEMPORE Judgment (REVISED) 1. HAMILL J: The State of New South Wales is seeking a continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW) against CT. CT was serving a gaol sentence imposed in the District Court until the sentence expired on 31 March 2019. On 4 February 2019, that is before the sentence expired and while the defendant was still in custody, the plaintiff commenced proceedings seeking a continuing detention order or, in the alternative, an extended supervision order. 2. On 21 March 2019, Bellew J made an interim detention order for a period of 28 days commencing on 31 March 2019, that is, when the District Court sentence expired. To that point the litigation was proceeding in an orderly fashion. Thereafter there appears to have been a glitch or two. 3. The case was heard before Harrison J on 24 April 2019. I assume the purpose of that hearing was to obtain an extension of the interim order made by Bellew J. However, the application to extend the order was not pressed before Harrison J. At the time of that hearing the plaintiff was under the misunderstanding that the defendant was subject to orders under s 19 of the Mental Health Act 2007 (NSW) pursuant to which he was detained in a psychiatric hospital. It was the case that the defendant had been transferred to the Long Bay Psychiatric Hospital on 26 March 2019. However, that transfer was made pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW), rather than the provisions of the Mental Health Act. 4. Further, after 31 March 2019 it is unclear by what authority, if any, he continued to be detained, if he was detained as opposed to being in the hospital as a voluntary patient. It seems that the State believed he was an involuntary patient pursuant to s 19 of the Mental Health Act. In any event, because of what seems to have been a misunderstanding, Harrison J did not make any orders pursuant to the Crimes (High Risk Offenders) Act when the matter was before him. 5. Accordingly, at the conclusion of the interim order made by Bellew J (that is, on 28 April 2019), there was no extant order by which the defendant was detained. When the plaintiff realised the mistake, if it was a mistake, the Crown Solicitor's Office wrote an email to Harrison J's Associate seeking an urgent hearing. 6. The matter was then listed before N Adams J on 21 May 2019, which is to say last Tuesday. Her Honour was also then, as I am today, sitting as Duty Judge. 7. I might interpolate here that apart from its urgency this is not the kind of matter that should ordinarily be heard in the Duty List. The amount of evidence generally (and in this case) provided is so vast, and the implications of such orders on the individual so significant, that ordinarily they ought to be listed before a judge who has more time to digest the evidentiary material and submissions, as well as the complexity of some of the legislative provisions. Indeed, when N Adams J adjourned the matter to today, she did so hoping the matter would be listed before a judge who had no other commitments. Alas, due to the extraordinary workload of the Court, together with the urgency of the case, the matter had to be listed in the Duty Court. Fortunately I was able to read a good deal of the material over the weekend. 8. Having got that off my chest, returning then to what happened last Tuesday before N Adams J, I have read the transcript, affidavit evidence and her Honour's helpful ex tempore judgment. In essence there was a dispute about a number of matters and three in particular. In short, those disputes were: First, a question whether the defendant was lawfully detained between 28 April 2019 and 21 May 2019. Her Honour held that it was unnecessary to decide that matter. The same applies today. 9. The second question was whether CT was a voluntary patient at the Long Bay Hospital. Again her Honour did not have to decide that and certainly today neither do I. 10. Thirdly, and this was a critical question that had to be determined by her Honour, was whether the Court had jurisdiction or power to make or continue an interim detention order. That question was controversial because of the break, or gap, or hiatus in CT's custodial situation and the related fact that the interim order made by Bellew J had expired. This is a vexed question and one that N Adams J resolved favourably to the plaintiff. It involved an interpretation of the relevant legislation and consideration of whether the gap, or change in the offender's custodial status impacted on the Court's jurisdiction or power to make an order. 11. As I have said, her Honour resolved the issue in favour of the State, however, in view of the problems and the evidence of the difficulties faced by the defendant's lawyers, her Honour was not prepared to make an interim detention order for any significant length of time. Rather, she extended (or made) an interim detention order for a period of six days and listed the matter today. 12. The jurisdictional issue no longer exists; that is because the order made by N Adams J involving, as it does, the exercise of judicial power is valid until or unless it is set aside. Accordingly, and this is properly conceded by counsel for the defendant, I have the power to make an interim detention order, or in the exercise of discretion an interim supervision order. 13. The first question is whether such an order should be made at all. That question involves consideration of the matters set out in s 18A of the Crimes (High Risk Offenders) Act, relating to interim detention orders, or s 10A of the Crimes (High Risk Offenders) Act, relating to interim supervision orders. In short, I must be satisfied that the offender's current custody will expire before the proceedings are determined [1] and that the matters alleged in the supporting documents, would if proved, justify the making of an order of one kind or another. 14. There is no question that the offender's current custody will expire before the proceedings are finally determined because that order that N Adams J made will expire at midnight tonight. The second question takes one in turn to s 5B for an extended supervision order and s 5C for a continuing detention order and the criteria set out in s 9 of the Crimes (High Risk Offenders) Act. In essence the final decision maker will have to make an assessment of risk. At this stage I have to make a prediction as to whether the final decision would justify the making of an order of either kind. 15. I have considered CT's criminal history, the facts and circumstances of the index offence, the information now known about the offender's mental health issues and the opinions of various experts as to the degree of risk as relates to the person. One of the difficulties is that he seems now to have come to terms with his serious psychotic illness and is being more compliant than he ever has before. Certainly his degree of cooperation has improved dramatically since his case was considered by Bellew J on the preliminary hearing. 16. It also appears based on the recent report of Dr Sharma and a decision made by the Mental Health Review Tribunal last week that his response to medication has been very good. His delusions have, at least to a degree, subsided. I would also make the observation that it seems, in spite of some indications back in the mid-1990s that CT had a mental illness, he has not been diagnosed as mentally unwell with any degree of certainty until quite recently. In the meantime, being untreated and being a person suffering from a significant psychiatric illness, he has found himself on many occasions in conflict with the criminal law. In at least some of the cases for which he has been convicted and sentenced, it would seem that his delusional beliefs may have played a significant role. 17. Even so, a review of his criminal history and the opinions of other experts in the area supports my finding that the judge hearing the final application may be satisfied to a high degree of probability that CT poses an unacceptable risk of committing another serious violent offence. Looking back through his criminal history one sees an offence of recklessly inflicting grievous bodily harm, custody of a knife in a public place, assault occasioning actual bodily harm, detaining people for advantage, intimidation, various offences of assault, stalking, and that is only to go back to 2008 through to 2016. It is a bad history of violence and may well ultimately be more readily understood now that we know that he is a person suffering from a significant mental illness. 18. Turning then to some of the reports, the Risk Assessment Report prepared for the preliminary hearing says that "actuarial assessment placed CT at a high risk of violent reoffending and a high risk of general recidivism". It also referred to the fact that he was entirely uncooperative at the time. As I have said, his level of cooperation seems to have improved dramatically since he has gained some insight into his mental health problems. 19. The reports of Dr Ellis and Martin, without necessarily using the same language, also demonstrate that at least from the experts' point of view, CT untreated presents a high risk of violent reoffending. I do not need to consider at this stage the different approaches that those two experts would take in managing that risk, but they do come to different conclusions. Notwithstanding, both refer to the ongoing history of serious violent offending, and it is those matters without going into everything in great detail that supports my finding that the judge hearing the final application may be satisfied, to the high degree of probability necessary, that the defendant poses an unacceptable risk of committing further serious offences of violence. Counsel for the defendant implicitly conceded as much. The concession was properly made and I propose to make an interim order. 20. I had then to consider whether the order should be for supervision or for detention. There is a discretion, but it must be exercised judicially and in accordance with the primary objectives of the legislation which is the safety and protection of the community. Evidence was given as to the possible accommodation now available. That evidence was given by Ms Caffery who is the manager of the extended supervision order team. The practical reality is that as of this moment there are no certain accommodation options available which are to ensure CT is adequately supervised and in particular receives the psychiatric care he clearly needs. However, Ms Caffery said that further inquiries as to accommodation and appropriate conditions could be made within a period of about seven days. 21. Again, counsel for the defendant very responsibly conceded that the state of the evidence at this stage was that it was impossible to fashion an interim supervision order that would have any realistic chance of working. However, he submitted, and I am paraphrasing, that given the fluid and apparently rapidly improving nature of his client's mental health, response to medication and response to supervision, it is appropriate to make a detention order for a period of around a week and then bring the matter back before the Court to hear what Ms Caffery has found out about possible alternatives to detention. 22. A number of conditions were proposed that would require the state to provide the Court with updated risk management reports, updated accommodation reports as well as the availability of accommodation, in particular at the Integrated Support Centre at Campbelltown which everyone calls the ISC or the Community Offender Support Program at Long Bay which everyone calls the COSP. As of this morning when Ms Caffery gave evidence, it seems there was certainly no accommodation available at the COPS and it was uncertain whether there was accommodation available at the ISC. 23. In either case, on her evidence there were problems and may continue to be problems as to whether CT's psychiatric conditions can appropriately be accommodated at either of those centres. 24. In any event, returning to the proposed orders on behalf of the defendant, it was essentially to bring the matter back next week and to have updated information so as to minimise the amount of time that this man is incarcerated without charge. 25. The practical problem with all of this is manifest. The case is listed for final hearing on Friday, 14 June. That is a little over two weeks away. Even assuming that suitable evidence and arrangements could be made in seven days or so, all this would achieve is the possibility that CT would be released for a period of seven to 10 days before the final hearing. Given his history and in spite of recent improvements in compliance and cooperation, there is a real risk that he would fail to comply with the conditions and this would ultimately be to his great disadvantage when the matter comes on for final hearing on 14 June 2019. 26. In exercising the discretion as to which orders to make, I am quite certain having surveyed all of the material and considered the helpful submissions of both sides, that the better option is to give the parties the extra time to ensure that the judge who hears the matter on 14 June has all proper alternatives available. Given CT's mental health issues and the recent developments, and without predetermining anything, this seems to be a case where a judge on final hearing would be well justified in deciding that a supervision order is more appropriate than ongoing detention. However, that is a question for another day. All that I can do is to make directions that ensure that all of the information is available and that the state who brings the application does everything in its power, as I am sure it will, to ensure the Court has an alternative other than to incarcerate a mentally ill man who has served the whole of his sentence and more and who has remained undiagnosed for many, many years. 27. For those reasons I will make the following orders: 1. I make an Interim Detention Order for a period of 27 days commencing at midnight on 27 May 2019. 2. I confirm that the final hearing will take place 14 June 2019. 3. I direct the plaintiff to ensure that draft conditions for an Extended Supervision Order are made available to the Court no later than close of business on 12 June 2019. 4. I direct the plaintiff to ensure that all accommodation options for any Extended Supervision Order are explored and made available to the Court on the day of the final hearing. 5. I direct that all deponents and authors of expert reports be available for cross-examination on 14 June 2019 if required. 6. A warrant to issue under section 20 of the Crimes (High Risk Offenders) Act 2006 (NSW) to commit CT to a correctional centre for the period specified in the order. 7. There will be an order under section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) to ensure that CT is available to appear at the final hearing on 14 June 2019 by video link. 8. I direct that any written submissions on the question of concurrent evidence of experts be filed by close of business on 12 June 2019. ********** Endnote 1. The plaintiff says, as I understand it, that this question does not arise because the sentence was still extant when Bellew J made orders. 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: 10 June 2021