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[2025] NSWCA 248
appellant. The application to review Kirk JA’s interim extension order was dismissed; the appeal was allowed, Coleman J’s orders were set aside, and Haines’ forensic-patient status was extended for two years...
The Court of Appeal decided that it had power to make an interim order keeping Haines a forensic patient while his appeal was considered. It also said the primary judge used the wrong legal test by asking whether a Community Treatment Order could manage the risk, rather than whether it would reliably do so in practice. After considering the evidence itself, the Court concluded that a CTO was not currently an adequate alternative, particularly given Haines’ reasons for wanting to stop Clozapine, the history of CTOs, and concerns about how quickly community services could respond. The Court extended his forensic patient status for two years.
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2,394 words · generated 06/10/2026
The Attorney General for New South Wales sought to extend Dale Haines’ status as a forensic patient under Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). Coleman J refused the application on 26 September 2025. The Attorney General appealed. Haines separately sought review of an interim extension order made by Kirk JA on 20 October 2025, arguing that the Court of Appeal did not have power to make it. The Court dismissed that review application, allowed the appeal, set aside the primary judge’s orders and extended Haines’ forensic patient status for two years from 20 November 2025: [1]-[3], [135].
8 cited instruments linked from this judgment.
The judgment describes Haines’ history of traumatic brain injury, cognitive impairment, schizophrenia, drug-induced psychosis and substance use. He had a history of periods of non-compliance with treatment and earlier Community Treatment Orders (CTOs): [4]-[5]. Between June and September 2014, he committed five armed robberies to obtain money for drugs. He was arrested on 25 September 2014, later found unfit to be tried, and found guilty following a special hearing. A limiting term of seven years and seven months was imposed, expiring on 24 April 2022: [6]-[7].
Haines remained under the Tribunal’s control after the limiting term. His status was extended in 2022, and the Tribunal progressively granted him leave, including conditional release to supported independent living accommodation on 14 May 2025: [9]-[10]. At the time of the appeal, he remained subject to forensic supervision and had only recently moved into that accommodation.
The central statutory question was whether, to a high degree of probability, Haines posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, and whether that risk could not be adequately managed by less restrictive means: s 122(1), set out at [47]. It was common ground that the first part of this test was met. The dispute focused on whether a CTO could adequately manage the risk: [83], [116]-[120].
The Court first considered the interim order. Section 130 allows the Supreme Court to make an interim extension order “in proceedings on an application for an extension order” if the existing order will expire before the proceedings are determined and the supporting material, if proved, would justify an extension: [53]. The respondent argued that the three-month limit in s 131(2) applied across the original proceedings and the appeal, and that the interim order made at first instance could not be followed by a new one on appeal.
The Court rejected that construction. It held that “The Supreme Court” could include the Court of Appeal and that the words “proceedings on an application” could apply separately to proceedings at first instance and to appeal proceedings. Filing the notice of appeal commenced new proceedings, allowing a fresh interim-order power to arise: [56], [60]-[63]. The Court also considered the statutory timetable. The Act requires court-appointed examinations and reports, allows time for a patient to respond, and requires a hearing and reasoned decision. An appeal also takes time. A construction that confined interim orders to three months across all stages could, in most cases, leave insufficient time for that process and significantly compromise the appellant’s right to appeal: [62]. The Court therefore dismissed the review application: [63].
On expert evidence, the Court rejected the Attorney General’s contention that Coleman J had purported to create a general rule that court-appointed experts must ordinarily be called if they disagree. Read fairly and as a whole, the primary judge’s comment that it was “regrettable” that the experts were not called was an expression of regret about the particular case, where concurrent evidence might have clarified their differences: [67]. The Court said the proceedings remained adversarial. Although the Court orders the appointment of experts under s 126(5), it is not otherwise responsible for them and does not ordinarily conduct an independent inquisitorial role: [68]-[71].
The Court also rejected the claim that the primary judge had drawn an adverse inference against the Attorney General for not calling the experts. Its reading of the reasons was that Coleman J assessed the reports as presented and found it open to accept Dr Elliott’s view: [78]-[79]. The Court added, for completeness, that the failure to call these experts did not support the inferences described in Jones v Dunkel or Ferrcom in the circumstances of this case, because the Attorney General did not control the content of the reports and Haines had not sought to have the experts called: [80]-[82].
The successful appeal ground concerned the statutory test. The Court held that it was not enough to prefer one expert’s opinion over another. The experts could express opinions on the ultimate question, but the Court itself had to make the evaluative assessment required by s 122: [84]. The primary judge had treated the question as whether a CTO could manage the risk. The Court held that the question was whether it would actually do so adequately. “Protecting safety is a question of practical outcomes, not theoretical possibilities”: [88]. The efficacy and reliability of the proposed alternative could not be ignored: [88]-[89].
The Court then decided the matter itself, as both parties accepted it could do, because it was in as good a position as the primary judge and had been taken through the reports in detail: [90]-[92]. It identified substantial common ground. Haines’ psychosis could be controlled if he took Clozapine at the prescribed dose, but he did not accept that he had schizophrenia or needed the medication, and disliked significant side effects: [94]. The experts also agreed that stopping Clozapine was central to the risk. The risk could increase further if he became unwell, disengaged from services and returned to methamphetamine use: [117]-[120].
The Court assessed the CTO in practical terms. It considered whether a CTO would deter Haines from stopping Clozapine and whether it could produce timely intervention if he did stop: [124]. Forensic patients were subject to continuous Tribunal oversight, and breach could lead to being taken into custody. By contrast, CTO enforcement was less immediate, discretionary and dependent on community-service resources: [126]. The Court also noted that the risk could not reasonably be assessed on the assumption that community mental health services would always manage him assertively, particularly given Dr Elliott’s evidence about resource pressures: [127]-[133].
Four considerations led to the conclusion that less restrictive means were insufficient at that time: the relative deterrent effect of forensic supervision; the lack of effectiveness of previous CTOs; the dependence of the proposed CTO plan on assertive community-service intervention; and the short period Haines had spent in supported accommodation while still under a forensic order: [130]-[134]. The Court did not treat his recent medication compliance as proof that he would continue independently of those controls: [134].
The judgment identifies the statutory framework in force before and after its decision. Section 122(1) already required the Supreme Court to be satisfied to a high degree of probability of both an unacceptable risk of serious harm and the inability to manage that risk adequately by less restrictive means: [47]. The Court did not amend that statutory test. Rather, it clarified how the second limb must be applied.
Before this decision, the primary judge had treated the possible availability of a CTO as sufficient to defeat the extension application: [29]-[30]. The Court of Appeal held that approach was wrong. The question is not whether an alternative could manage the risk in theory, but whether it would adequately manage it in practice, having regard to efficacy and reliability: [88]-[89]. That clarification makes the operational reality of an alternative measure central to the statutory assessment.
The Court also resolved the interim-order question in this case. It construed ss 130 and 131 to allow an interim extension order in new appeal proceedings, subject to the statutory three-month limit in those proceedings: [56], [60]-[63]. The judgment’s construction was informed both by the text and by the need to make the appeal process workable within the Act’s procedural timetable: [62].
On expert evidence, the Court did not establish a rule requiring oral evidence whenever court-appointed experts disagree. It stressed that such proceedings remain adversarial and that parties determine whether experts are called, while recognising that concurrent evidence may assist the Court: [67]-[71]. It also explained that the Court’s appointment of the experts does not make their evidence the Court’s own evidence or give the Court an independent inquisitorial role: [69]-[71].
The judgment does not describe a legislative amendment or a later change in the statutory scheme. Its contribution, as stated in the reasons, is the construction and application of the existing provisions.
At [84], the Court says: “It was the Court which was required to be satisfied under s 122, not the experts.” In plain English, a report’s conclusion cannot settle the legal question. The judge must reach an independent view, using the expert evidence alongside the other relevant material.
At [88], the Court says: “Protecting safety is a question of practical outcomes, not theoretical possibilities.” This explains why a CTO’s legal availability was not enough. The Court had to examine whether the proposed arrangement could reliably work for Haines in the real circumstances described in the evidence.
At [126], the Court distinguishes the forensic-patient regime from the CTO regime. It observes that the Tribunal has continuous oversight of a forensic patient, while enforcement of a CTO is less immediate, discretionary and dependent largely on local mental health service resources. In plain English, the Court considered the practical differences in supervision and enforcement, rather than treating the two forms of control as equivalent.
At [133], the Court says it would not be reasonable to assess the risk on the expectation that community mental health services would manage Haines assertively. That passage ties the legal test to the actual evidence about service capacity and the assumptions on which an expert’s opinion depended.
At [134], the Court explains why recent compliance did not answer the question. Haines had spent only a short time in supported accommodation and remained subject to a forensic order. The Court therefore considered that the evidence did not yet show whether he would continue taking Clozapine without those external controls.
The reasoning is most directly engaged where a statutory decision-maker must decide whether a less restrictive alternative can adequately manage a serious risk. The judgment indicates that the alternative should be assessed in its real operating environment, including whether its safeguards are likely to be used, how quickly intervention can occur, and whether the responsible services have the capacity and role to manage the relevant risk: [88], [124]-[133].
The case also addresses situations where the proposed alternative is a CTO and the person’s risk is linked to stopping medication, limited insight, substance use, or disengagement from support. The Court’s conclusion depended on the evidence about Haines: his stated views about medication, its side effects, previous CTOs, and his recent transition to community accommodation while still under forensic supervision: [94], [119]-[134]. The judgment does not establish that a CTO will always be inadequate, or that forensic status must always be extended in comparable cases. Its reasoning turns on the statutory test and the evidence before the Court.
The interim-order reasoning may be relevant where an existing extension order may expire while an appeal is pending. The Court treated appeal proceedings as capable of supporting a fresh interim extension order under s 130, with the three-month limit applying to those proceedings: [56], [60]-[63].
The expert-evidence discussion may be relevant where court-appointed reports differ and parties elect not to call the experts. The judgment says that such a choice does not itself create an adverse inference against the party bearing the onus, where the other party has not requested the experts’ attendance: [78]-[82]. It does not prescribe a universal practice requiring oral evidence whenever opinions diverge.
This judgment is dated 20 November 2025 and, in the material supplied, contains no decisions by later courts applying or distinguishing its reasoning. It therefore provides no source-grounded account of subsequent treatment.
The Court itself considered several earlier authorities. It considered Goodridge v R when discussing the adversarial limits on a judge’s role concerning expert evidence: [72]-[76]. It considered Jones v Dunkel and Commercial Union Assurance Co of Australia Ltd v Ferrcom in explaining why the alleged failure to call the experts did not justify an adverse inference in these circumstances: [80]-[82]. It also considered Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2), referring to its discussion of differences between forensic-patient and CTO regimes: [126].
The earlier Haines decisions were referred to as part of the procedural history and status-extension background: [9], [11]. The judgment’s citation of those decisions does not itself establish that they adopted the legal propositions decided here.
The judgment does not provide an exhaustive test for determining when a less restrictive measure will be sufficiently effective or reliable. It holds that practical efficacy and reliability matter, but the assessment remains dependent on the specific evidence about the risk and the proposed management arrangements: [88]-[89].
The Court did not decide how much weight should be given to different kinds of evidence about service capacity, beyond the evidence in this case about resource pressures and the assumed need for assertive management: [127]-[133]. Nor does it establish what level of commitment, capacity or response time from community mental health services would make a CTO adequate in another case.
The Court noted that the respondent’s circumstances might change if his willingness to take Clozapine became less dependent on external controls, or if he developed enduring habits and relationships that supported ongoing treatment: [133]-[134]. It did not determine when that might occur or what evidence would be sufficient to demonstrate it.
Finally, the Court’s interpretation of the interim-order provisions resolved the power question before it, but the supplied judgment does not address every possible procedural configuration involving expiry dates, appeals, or remittals. It reasons that its construction avoids insufficient time for the statutory process and preserves a meaningful right of appeal: [62]-[63].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) [2025] NSWCA 248
Hearing dates: 6 November 2025
Decision date: 20 November 2025
Before: Adamson JA; McHugh JA; Ball JA
Decision: (1) Dismiss the application for review of Kirk JA’s interim extension order made on 20 October 2025.
(2) Allow the appeal.
(3) Set aside the orders made by Coleman J on 26 September 2025 and, in lieu thereof, make order (4) below.
(4) Pursuant to ss 121, 127(1) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), extend the defendant’s status as a forensic patient for a period of two years from 20 November 2025.
Catchwords: MENTAL HEALTH — forensic patient — schizophrenia — substance use disorder — appeal from refusal to extend status — interim extension order — whether Court of Appeal judge had power to make interim extension order — whether unacceptable risk can be adequately managed by less restrictive means — whether primary judge applied correct statutory test — conditional release — Community Treatment Order — psychiatric evidence — disagreement between court-appointed experts — whether primary judge erred in approach to expert evidence — alleged rule as to calling experts — Jones v Dunkel inferences — Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122
Legislation Cited: Evidence Act 1995 (NSW), s 80
Interpretation Act 1987 (NSW), ss 6, 33
Mental Health Act 2007 (NSW), s 14
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 3, 69, 72, 78, 79, 82, 83, 94, 99, 101, 109, 121, 122, 123, 124, 125, 126, 127, 128, 130, 131, 135
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), Pt 31 Div 2, rr 31.46-31.54
Cases Cited: Attorney General for New South Wales v Haines (BHT Barbara Ramjan) [2025] NSWCA 231
Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930
Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458
Attorney General for NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107
Attorney General of New South Wales v Haines (Preliminary) [2025] NSWSC 774
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Goodridge v R [2014] NSWCCA 37
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013
Category: Principal judgment
Parties: Attorney General for New South Wales (Appellant)
Dale Thomas Haines (by his tutor Barbara Ramjan) (Respondent)
Representation: Counsel:
P Coady SC / C Palmer (Appellant)
P Griffin SC / T Spohr / C Egan (Respondent)
Solicitors:
Crown Solicitor’s Office (Appellant)
Legal Aid NSW (Respondent)
File Number(s): 2025/396912
[This headnote is not to be read as part of the judgment]
The Attorney General for New South Wales appeals against the decision of Coleman J (the primary judge) made on 26 September 2025 refusing to extend Dale Haines’ (the respondent) status as a forensic patient under Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). The respondent also seeks review of an interim extension order made by Kirk JA on 20 October 2025 extending his forensic patient status to 19 December 2025.
The respondent, born in 1981, sustained a traumatic brain injury leading to significant cognitive impairment and subsequent diagnoses of schizophrenia and drug-induced psychosis. His illness has been marked by substance abuse and periods of non-compliance with treatment. During his twenties, he committed various offences and was subject to multiple Community Treatment Orders (CTO) and inpatient admissions.
Between June and September 2014, the respondent committed a series of armed robberies to obtain drugs. He was arrested on 25 September 2014 and later found unfit to be tried. Following a special hearing, he was found guilty and, on 15 May 2017, a limiting term of 7 years and 7 months was imposed, expiring on 24 April 2022. He has since remained under the supervision of the Mental Health Review Tribunal (Tribunal).
The respondent’s status as a forensic patient was extended by interim order on 14 April 2022 and for a further three years from 24 July 2022. A further interim order was made extending his status to 24 October 2025 by Harrison CJ at CL, sitting in the Common Law Division pending the hearing of the application for an extension of the respondent’s status as a forensic patient for a further period. A further interim order was made by Kirk JA on 20 October 2025 pending the hearing of an appeal from the primary judge’s refusal to grant that extension.
The respondent was in custody in secure forensic facilities from 25 September 2014. From January 2023 onwards, the Tribunal progressively increased his leave. On 14 May 2025, the respondent moved to accommodation described as supported independent living, which is funded by NDIS.
Application to review the interim order made by Kirk JA
The respondent seeks review of the interim extension order made by Kirk JA arguing that the Court lacked the power to make such an order.
The Court held (Adamson, McHugh, and Ball JJA) dismissing the respondent’s application**:**
(1) The Court had power to make an interim order extending the respondent’s status as a forensic patient. The expression “[t]he Supreme Court” in s 130 of the Act can mean a single judge in any Division or the Court of Appeal, whether constituted by one or three judges. The words “proceedings in an application for an extension order” apply distributively to proceedings below and to this Court, and therefore the filing of a notice of appeal commences new proceedings and gives this Court a fresh power to make an interim extension order. Further, the three-month limit in s 131(2) applies per proceeding, allowing this Court to make an interim order for up to three months on appeal: [56].
(2) The construction for which the respondent contended would not allow sufficient time for the statutory timetable and would impair the appellant’s right to appeal in the final six months of an extension order. The construction adopted by Kirk JA is open on the text and accords with the Act’s purpose. For these reasons, his Honour had power to make the interim extension order, and the application for review should be dismissed: [62]-[63].
Appeal against refusal to extend the respondent’s status as a forensic patient
The appellant appeals on the following grounds, contending that the Court erred in: (1a) holding that “ordinarily” Court-appointed experts should be called to give oral evidence; (1b) placing weight on the fact that the appellant did not call the Court-appointed experts; and (2) its approach to the statutory test in s 122(1)(b) of the Act.
The Court held (Adamson, McHugh, and Ball JJA) allowing the appeal:
Ground 1a: alleged error in purporting to lay down a rule as to whether experts ought be called
(3) Read fairly and as a whole, the primary judge’s statement that “ordinarily” court-appointed experts ought be called when they differ did not purport to lay down a general rule but rather was an expression of regret that the parties had chosen not to arrange or require the experts to give concurrent evidence which would have provided the Court in the instant case with greater assistance than was available from a reading of their reports. Accordingly, ground 1a was not made out: [67].
(4) Although the Court orders the experts to be appointed, the Court is not responsible for them and is not entitled to require that they give oral evidence, since this is a matter for the parties. Rather, the proceedings under the Act ought be conducted in accordance with the usual practices and procedures which apply to adversarial litigation: [68]-[80].
Goodridge v R [2014] NSWCCA 37, considered.
Ground 1b: alleged error relating to inferences to be drawn from the appellant’s failure to call Court-appointed experts to give oral evidence
(5) The primary judge’s reasons, when read fairly and as a whole, did not indicate that his Honour drew an adverse inference against the appellant but instead disclosed that the primary judge assessed the evidence as it was. It was open to his Honour to accept Dr Elliott’s opinion and dismiss the application. Ground 1b, therefore, was not made out: [78]-[79].
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, considered.
Ground 2: alleged failure to apply the correct test under s 122(1)(b)
(6) The Court’s task of assessing whether the unacceptable risk posed by the respondent could be “adequately managed by other less restrictive means” could not be fulfilled by expressing a preference for one competing expert opinion over another. It was the Court which was required to be satisfied under s 122, not the experts: [84].
(7) The primary judge was incorrect to find that it was sufficient to defeat an application for extension if there were an alternative means available which “could” manage the risk posed by the respondent since the question whether a risk can be adequately managed is concerned with practical outcomes, not theoretical possibilities. Ground 2 has been made out: [88]-[89].
Whether the respondent’s status as a forensic patient ought be extended
(8) Although there were differences between the experts, there is much common ground, including that the respondent poses an unacceptable risk of causing serious harm if he ceased to be a forensic patient. Both experts agreed that the primary risk of harm arises if the respondent ceases taking Clozapine. The issue is whether this risk can be adequately managed by a Community Treatment Order (CTO): [116]-[120].
(9) The Court was not satisfied that it could. CTOs have not been effective in the past. Apart from external controls, the respondent currently has no incentive to continue to take Clozapine as he does not believe he needs it and dislikes its side effects. In those circumstances, the consequences of failing to comply with a CTO will provide a less effective deterrent than the consequences of failing to take Clozapine while a forensic patient. It is also unreasonable to expect community mental health services to react sufficiently quickly and assertively to ensure compliance if the respondent ceases to take Clozapine: [130]-[133].
(10) The respondent’s recent compliance with Clozapine does not demonstrate that the risk can be adequately managed in the community, given his recent transition to supported accommodation (while subject to a forensic order) and the need for further time to assess his willingness to take Clozapine independently of external controls: [134].
(11) An extension of the respondent’s status as a forensic patient is necessary and a period of two years, as recommended by both experts, is appropriate: [134].
THE COURT: The Attorney General for New South Wales (the appellant) appeals against the refusal by Coleman J (the primary judge) to extend the status of Mr Dale Haines (the respondent) as a forensic patient pursuant to Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). Section 122(1) of the Act (which is contained in that Part) gives the Supreme Court power in certain circumstances to extend a person’s status as a forensic patient if it is satisfied to a high degree of probability that the person poses an unacceptable risk of causing harm to others which cannot be adequately managed by other less restrictive means.
The respondent also applies for review of the interim extension order made by Kirk JA on 20 October 2025 extending his status as a forensic patient for the period from 20 October 2025 to 19 December 2025: Attorney General for New South Wales v Haines (BHT Barbara Ramjan) [2025] NSWCA 231. It was common ground that, if the interim extension order is invalid, the respondent is no longer a forensic patient and the appeal has no utility.
All references to legislation in these reasons are, unless otherwise stated, references to the Act.
The respondent, who was born in 1981, suffered a traumatic brain injury when he was about 20, which led to significant cerebral dysfunction with compromised frontal and temporal lobe function. Not long afterwards, the respondent was first diagnosed with schizophrenia and drug-induced psychosis following attempted self-harm. It was reported that the respondent tried to cut his own throat while he was subject to a delusion that his head would grow back. His psychotic illness was complicated by regular cannabis and methamphetamine use and periods of non-compliance with anti-psychotic medication.
During his twenties, the respondent was convicted of offences, including armed robbery and assault occasioning actual bodily harm and possession of prohibited drug for which he was sentenced to periods of imprisonment. On 4 January 2011, the respondent was released to parole. At about this time, he was on a Community Treatment Order (“CTO”) towards the end of 2010. In June 2011 it was reported that the respondent had been compliant and attending to have his fortnightly injection notwithstanding a positive urinalysis and concerns regarding his mental health by his Community Correction Officer at the time. In July 2011, his CTO was extended for a further 6 months. During October 2011, the respondent failed to attend his appointments. His CTO was due to expire on 13 January 2012 but an application for an extension was submitted. Although the respondent appeared compliant with his CTO, concerns were noted about his compliance with his oral medication. In February 2012, he was admitted as an involuntary patient to a mental health unit in Liverpool Hospital where he remained for several months before he was discharged on a CTO.
Between 26 June 2014 and 25 September 2014, the respondent committed five armed robberies to obtain money for prohibited drugs. On 25 September 2014, he was arrested and charged with five offences of armed robbery (of service stations in Merrylands, Smithfield and Fairfield and the Umina branch of the Westpac Bank), one offence of face disguised with intent to commit robbery, one offence of robbery and one offence of assault occasioning actual bodily harm. He was refused bail. In December 2015 he was assessed under the predecessor to the Act. The Mental Health Review Tribunal (the Tribunal) determined that he was unfit to be tried.
As a consequence of the Tribunal’s determination, the respondent’s trial proceeded by way of special hearing before English DCJ who found the respondent guilty of these offences. On 15 May 2017 her Honour imposed a limiting term of 7 years and 7 months commencing on 25 September 2014 and expiring on 24 April 2022. The effect of this order was that the respondent was subject to the Tribunal’s control.
On 4 September 2017 the Tribunal ordered that the respondent be transferred to and detained at the Forensic Hospital for care and treatment as soon as a bed became available.
On 11 April 2025 the appellant commenced proceedings in the Supreme Court (the Court below) for an order extending the respondent’s status as a forensic patient. As the existing extension order was due to expire on 24 July 2025, the appellant applied for an interim extension order, which was granted by Harrison CJ at CL on 22 July 2025: Attorney General of New South Wales v Haines (Preliminary) [2025] NSWSC 774. The interim extension order commenced on 24 July 2025 and was due to expire on 24 October 2025. On 22 July 2025, his Honour also made orders for the appointment of two psychiatrists who were to conduct separate examinations of the respondent and provide reports to the Court by 24 September 2025. This order was varied by consent on 5 August 2025 to permit the appointment of a psychiatrist and a psychologist, as occurred. Reports were obtained from Dr Gordon Elliott, psychiatrist, and Dr Carollyne Youssef, forensic and clinical psychologist.
On 27 August 2025, Yehia J made orders by consent which included an order that the parties were to notify each other if any witness was required for cross-examination. The respondent neither adduced evidence nor notified the appellant that either of the court-appointed experts was required for cross-examination. The parties filed written submissions in advance of the hearing.
Neither of the experts were called to give evidence or required for cross-examination. That is regrettable in a case like this where the experts’ views and conclusions differ. Further, where[,] as is the case here, there is a submission that one expert’s conclusion on a relevant issue should be preferred over the other, it is difficult for the Court to resolve that issue when there has been no testing of the experts’ evidence by questions from the parties or the Court. I consider in matters of this kind where there is an issue as to whether the relief sought should be granted and the experts have different opinions on a relevant matter; ordinarily those experts should be called to give evidence to best enable the Court to determine which of the conflicting opinions should be accepted. If the experts are not called, this would be a matter that may impact upon whether the party with the onus of proof has discharged that onus.
(Emphasis added.)
The primary judge noted that Dr Elliott conducted a psychiatric assessment of the respondent over an Audio-Visual Link (AVL) for a period of 80 minutes on 12 August 2025 ([38]), in the course of which he administered the Historical Clinical Risk Management-20, Version 3: [45]. Dr Elliott noted the respondent’s “apparent history of poor compliance with oral medication while on a [CTO], though he appeared to have been compliant with depot administration”: [46]. The primary judge noted, at [44], that although Dr Elliott was of the view that the respondent had a mental illness, he did not consider him to be “mentally ill” within the meaning of the Mental Health Act 2007 (NSW).
The primary judge summarised Dr Elliott’s views as follows:
50 Dr Elliott opined that “there remains a risk that [the defendant] may cause serious harm to others if he ceases to be a forensic patient”. Dr Elliott observed that the most likely nature of the serious harm would be the defendant’s return to armed robbery to support a relapse into substance use. Dr Elliott considered that the likelihood of such harm would be critically dependent on the defendant remaining abstinent from illicit substance use, particularly methamphetamines. Dr Elliott considered that a return to methamphetamine use would be a critical event and dramatically increase the likelihood of the defendant causing serious harm to others.
51 In this regard, Dr Elliott states that it is important the defendant remains compliant with Clozapine. He noted that the defendant has been compliant with Clozapine without significant resistance. If the defendant were to cease, or reduce his dose of, Clozapine, Dr Elliott considered it “likely” that the defendant would suffer a relapse of his psychosis. If this occurred, however, he was not convinced this would “necessarily” lead to an unacceptable risk of serious harm to others. Rather, it would more likely result in a readmission to hospital.
His Honour noted Dr Elliott’s view that the respondent’s risk could be managed “by a combination of … existing care, treatment and support and with a CTO” and that “the [respondent] did not continue to pose an unacceptable risk of serious harm given his compliance with his current care and treatment”: [54]. Further, the primary judge noted that Dr Elliott’s concern that, because the respondent’s level of insight was “mixed at best, and he saw little benefit from his medication, instead seeing it as a burden”, the respondent might realise that, as a non-forensic patient, “he could refuse treatment, and would do so”: [57]. The primary judge also referred to Dr Elliott’s further concern that a CTO might not be applied for if the respondent’s status as a forensic patient lapsed because “community mental health services are resource poor and constantly looking for patients to discharge to GP care to allow for new referrals, particularly given the current public psychiatry climate in NSW”: [59].
The primary judge also noted Dr Elliott’s view that, if an extension order were granted, it ought be granted for two years, a period which “would allow for a sustained period of assessment of the defendant’s adaption to his supported independent living setting, his compliance with mental health care and treatment, and his continued engagement with his NDIS disability provider”: [61].
… the defendant also reported that if he were to sever his head, he possessed the ability to reattach it using a “blue light” that can “fuse” it back together, stating “I have delusions, hack my head off, things like that, breathing under water, mental telepathy, all about spiritual gifts ... hear voices in my head ... no issues now, I talked too much ... I need to talk less”. The defendant stated that he had tried to cut his head off on two prior occasions and he believed he was asked by a woman to do this each time. He noted that he thought he might do this again if he was asked by another woman.
Dr Youssef observed that the defendant believed that he had drug induced psychosis rather than schizophrenia and expressed his annoyance with taking antipsychotic medication, particularly Clozapine, as he believed he did not need it. The defendant found the side effects of Clozapine very upsetting, including hypersalivation, weight gain, and erectile dysfunction, and he expressed a desire to cease this medication. However, the defendant acknowledged his doctors did not agree with him stopping the medication. The defendant also acknowledged he is an addict and still thought about ice, alcohol and, less frequently, cannabis. …
His Honour also recorded that the respondent had reported to Dr Youssef “that he felt the need to limit what he shared and keep certain thoughts to himself, as speaking too much led others to suggest he was mentally unwell. Dr Youssef observed that the [respondent] indicated an awareness that withholding certain information may prevent him from being labelled unwell. The [respondent] reported that he could get ‘into trouble’ for talking about it”: [67].
The primary judge also said that: “Dr Youssef noted that the [respondent] exhibited an absence of awareness of his schizophrenia symptoms”, which she considered “was the most common predictor of non-adherence to treatment, and was also associated with higher relapse rates, an increased need for involuntary treatments, poorer psychosocial functioning, aggression, and a more unfavourable course of the illness”: [69]. She also opined that his “moderate to severe Traumatic Brain Injury may also be associated with neuropsychological, emotional and behavioural complications, and that the [respondent’s] existing neurocognitive deficits are likely to have been compounded by his use of methamphetamine”: [69].
The primary judge also referred to Dr Youssef’s opinion that the respondent met the definition of having a “mental illness” and is a “mentally ill person” as outlined in the Mental Health Act: [70].
The primary judge noted the results of additional risk assessments that Dr Youssef had carried out (which Dr Elliott had not), which were that the respondent had a “high” loading of historical risk factors and a “moderate-high” loading of clinical risk factors. His Honour also noted Dr Youssef’s view that the respondent “continued to exhibit both the positive and negative symptoms of schizophrenia and show evidence of delusional beliefs reflective of issues with his cognitive functioning” and that he had “limited insight regarding the importance of ongoing intervention and support, as well as the need for medication”: [73]. She noted that he was “compliant” with medication but “continued to express his desire to cease Clozapine and did not believe he needed medication” and did not agree that he had schizophrenia: [74].
The primary judge said, of Dr Youssef’s opinion regarding ongoing management:
78 On the basis of the risk formulation outlined above, Dr Youssef opined that the defendant continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient. Dr Youssef considered that the defendant’s status as a forensic patient was necessary to manage his risk of harm to others, as it ensured ongoing oversight by the Tribunal, including regular reviews of his progress, treatment and supervision. Dr Youssef noted that, without an order, the defendant could reject his current supports, which would elevate his risk of harm to others (emphasis added).
79 Dr Youssef states adherence to medication, attending regular psychiatric appointments, meaningful engagement with mental health staff, continued abstinence from substances, a structured lifestyle with ongoing intensive support from NDIS staff, coupled with an increase in protective factors focusing on the development of effective coping skills, engagement in meaningful activities and the development of specific life goals is likely to reduce the risk of recidivism for the defendant.
80 Dr Youssef recommended that any extension order be for a period of 18 months to 2 years, based on the defendant’s risk of reoffending, an assessment of his dynamic risk factors, consideration of his current mental health condition including its chronicity, severity and the recency with which he has been released to the community.
81 Regarding alternate forms of management, Dr Youssef noted the following:
(1) the purpose of the defendant’s existing care, treatment and supports are to manage mental health and provide support for his disability, rather than risk management;
(2) guardianship would not encompass all aspects of the defendant’s daily life or address his full range of current risks and needs, and guardians’ powers do not extend to enforcing actions;
(3) a Financial Management Order would not have the jurisdiction to manage the defendant’s behaviour as concerned with his risk; and
(4) classification as an involuntary patient was not necessary nor sufficient to manage the defendant’s needs and risks.
82 With respect to a CTO, Dr Youssef opined that the defendant’s substantial forensic needs related to his risk of reoffending could not be adequately addressed by a CTO. Dr Youssef noted that the defendant had previously been subject to CTOs, the conditions of which were insufficient to manage his risk, with substance use and treatment non-adherence. Dr Youssef said that under a CTO, an individual is required to accept treatment, care, and management provided by a community mental health service or facility.
83 Dr Youssef observed that, whilst NDIS funding and support remained vital for the defendant and supported independent living accommodation helped provide stability and mitigate some risks, there were significant limitations to relying on NDIS services for risk management. Dr Youssef also observed that the defendant had the right to refuse or discontinue NDIS support without consequence, and there was a likelihood he may do so if not under an order. Dr Youssef opined that it was necessary for the defendant to have NDIS funding and support in combination with an extended order.
(Emphasis in original.)
The defendant submits that there is no basis articulated by the plaintiff by which the opinion of Dr Youssef should be preferred to Dr Elliott. Relevant to this consideration is the fact that Dr Elliott is a psychiatrist and Dr Youssef a clinical psychologist. In any event, the defendant submits that the opinion of Dr Youssef as to the risk posed by the defendant is equivocal and does not support a conclusion to the high degree of probability required that the defendant poses an unacceptable risk of causing serious harm to others.
103 Dr Youssef’s opinion, whilst more in favour of the plaintiff than that of Dr Elliott is, as the defendant submits, somewhat equivocal. After considering the risk scenarios she considers he poses, Dr Youssef concludes that the defendant “… continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient” (emphasis added). I do not consider Dr Youseff’s report, including this conclusion, is enough for the plaintiff to have discharged its onus. I reach that conclusion not only based on my reading of her conclusions, but because of the differences between her opinion and that of Dr Elliott.
…
111 The plaintiff submitted that the opinion of Dr Youssef on this issue should be preferred. No cogent reason was given as to why this was so. As I have mentioned, neither of the experts were called so that this difference could be explored. The Court was also unable to ask those experts questions which might have resolved this difference.
112 I can see no reason why the opinion of Dr Elliott should be rejected and that of Dr Youssef preferred on this issue. The plaintiff bears the onus of proving to a high degree of probability that the risk posed by the defendant could not be managed in a less restrictive means. They have called two experts who have different conclusions on this issue and cannot, in my opinion, offer a cogent reason why one should be preferred over the other.
(Emphasis in original.)
There was debate in the hearing as to whether it was the mere availability of a less restrictive means of managing the defendant’s risk that was to be considered or whether I had to be satisfied that a less restrictive means of managing that risk would in fact be in place. That is, here, is it enough that a CTO if made could be a less restrictive means of managing the defendant’s risk, or did I need to be satisfied that a CTO would be in place and therefore manage the defendant’s risk in a less restrictive way? I consider the former is the case. Whilst Yehia J did not specifically consider this question, I note that in [46] of her reasons in Haines (final) (2022), in making the assessment of whether there were less restrictive means of managing the defendant’s risk, her Honour considered the alternative orders that could be made.
(Emphasis in original.)
On 15 October 2025, the appellant filed a notice of appeal against the orders made by the Court below. He also filed a notice of motion seeking an interim supervision order under the Act, which was made returnable on 17 October 2025 and listed for hearing on 20 October 2025.
As referred to above, the notice of motion was heard and determined by Kirk JA on 20 October 2025. His Honour made an interim extension order commencing on that day and expiring on 19 December 2025. By notice of motion filed on 31 October 2025, the respondent seeks review of that order, arguing that his Honour lacked power to make such an order. The respondent’s notice of motion was listed for hearing with the appeal.
The following issues arise:
whether Kirk JA had power to make an interim extension order extending the respondent’s status as a forensic patient;
if so, whether any of the grounds of appeal have been made out; and
if so, what order ought be made.
It was common ground that if Kirk JA lacked the power to make an interim extension order, the appeal must be dismissed as the respondent would no longer be a forensic patient (the interim extension order granted by Harrison CJ at CL having expired on 24 October 2025). It was also common ground that this Court was in as good a position as the primary judge to decide on the order which ought be made, if the appeal is allowed and that it would be more efficient were this Court to make such a determination rather than remit the matter to the Court below.
As the first issue turns on the proper construction of the Act, it is convenient to address the operation of the Act at the outset.
The long title of the Act describes it as “[a]n Act with respect to criminal proceedings involving persons with a mental health impairment or cognitive impairment and the care, treatment and control of those persons; and for other purposes.”
Section 3 contains definitions. An “extension order” is an order for the extension of a person’s status as a forensic patient under s 121. A “forensic patient” is defined by reference to s 72. An “interim extension order” is an order for the interim extension of a person’s status as a forensic patient under s 130. The “Tribunal” is the Mental Health Review Tribunal under the Mental Health Act.
Part 5 of the Act relevantly applies to forensic patients. The objects of the Part include “to protect the safety of members of the public”: s 69(1)(a). These objects also apply to Part 6: s 69(2).
Section 72 provides that certain persons are forensic patients for the purposes of the Act, including, relevantly:
(a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place,
(b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal,
…
Division 3 of Part 5 of the Act, entitled “Reviews of forensic patients by Tribunal” provides that the Tribunal must carry out reviews of forensic patients at various times, including “as soon as practicable after a limiting term is nominated by a court for a forensic patient” or after a person is found unfit to be tried; at intervals of 6 months while the person is a forensic patient and “as soon as practicable after being requested to carry out a review of a forensic patient by the medical superintendent of the mental health facility in which the patient is detained”: s 78. The Tribunal may carry out a review of a forensic patient “at any time”: s 79.
The Tribunal may make an order for the transfer (s 82) or release (s 83) of a forensic patient.
The Tribunal may grant leave for a forensic patient to be absent from a mental health facility or other place “for a period and subject to any terms and conditions that the Tribunal thinks fit”: s 94(1).
The Tribunal may make a community treatment order in relation to a forensic patient: s 99(1)(a).
Section 101 provides that a person ceases to be a forensic patient if, relevantly, “an extension order or interim extension order made against the person expires and no further order is made”: s 101(f).
Division 9 of Part 5, entitled “Enforcement”, empowers the President of the Tribunal to make an order for the apprehension of a person if it appears to the President that the person has breached a condition of an order for the person’s conditional release or leave of absence: s 109(1)(a) and (c). In such a case, the Tribunal must review the case of a person so apprehended: s 109(4).
Part 6 of the Act, entitled “Extension of status as forensic patient”, is, for present purposes, the most relevant part of the Act. It provides that the Supreme Court may, on application (by the Minister: s 123), make an order for the extension of a person’s status as a forensic patient: s 121(1). Such an order is an “extension order”: s 121(2).
Section 122 provides:
122 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 Part 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 the patient ceases to be a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(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.
The Minister may apply for an extension order in respect of a forensic patient but only if the forensic patient is subject to a limiting term or an existing extension order: s 124(1). Such an application may not be made more than 6 months before the end of the limiting term or the expiry of an existing extension order: s 124(2).
Section 125 provides that such an application must be supported by documentation:
(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner)—
(i) that assesses the risk of the forensic patient causing serious harm to others, and
(ii) that addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.
Section 126 provides for pre-hearing procedure and requires the Minister to disclose all relevant material to the forensic patient. A preliminary hearing must be conducted by the Supreme Court within 28 days of the filing of the application or within any further time that the Court may allow: s 126(4). If the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must appoint two qualified psychiatrists, psychologists or registered medical practitioners or any combination of two such persons to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of the examinations: s 126(5).
The Court may determine the application by making the order or dismissing the application: s 127(1). In determining whether to make the order, the Court is to have regard to various matters, including the safety of the community and the reports of the experts provided under s 125(b).
An extension order may be made for a term not exceeding 5 years from the day on which it commences: s 128.
Division 4 of Part 6 provides for interim extension orders. Because of the importance to the first issue of the wording of ss 130 and 131, these provisions will be set out in full:
130 Interim extension orders
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.
131 Term of interim extension orders
(1) An interim extension order commences on the day fixed in the order for its commencement (or, if no day is fixed, as soon as it is made) and expires at the end of the period (not exceeding 3 months from the day on which it commences) that is specified in the order.
(2) An interim extension order made for a period of less than 3 months may be renewed from time to time, but not so as to provide for the extension of the person’s status as a forensic patient under an order of that kind for periods totalling more than 3 months.
Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extension order the subject of the appeal.
suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary—
(a) for the person’s own protection from serious harm, or
(b) for the protection of others from serious harm.
The conclusion that this Court had power to make an interim order extending the respondent’s status as a forensic patient was based on the following (references to paragraphs are to Kirk JA’s judgment):
the expression “[t]he Supreme Court” in s 130 is capable of meaning a single judge in a Division of the Supreme Court or the Court of Appeal or the Court of Appeal as constituted by three judges ([23]);
the words “proceedings in an application for an extension order” in s 130 apply distributively to proceedings in the Court below and to this Court, with the consequence that the commencement of proceedings in this Court (by the filing of a notice of appeal) gives rise to a fresh power to make an interim extension order;
on the basis of this construction, the time limit of 3 months on the total duration of an interim extension order in s 131(2) applies per proceeding and does not inhibit this Court’s power to grant an interim extension order for a maximum of 3 months if an appeal has been filed; and
this construction ought be preferred because it would promote the purpose or object of the Act, which is, by providing for interim extension orders ([32]):
…to give the Supreme Court a reasonable, if limited, period of time in which to consider an application for an extension order. The fact that the time was limited is consistent with other aspects of the statutory scheme, which stipulate that such an application can only be made in the last six month before the expiry of a limiting term [or] previous extension order (s 124(2)), and that the required preliminary hearing in the Supreme Court is to be conducted within 28 days of the application being filed (s 126(4)).
Mr Griffin SC, who appeared on behalf of the respondent with Mr Spohr and Ms Egan, submitted that:
the legislative criteria for an interim extension order were not made out as the respondent was neither subject to a limiting term nor an “extension order” as those terms were defined in the Act, with the consequence that Kirk JA had no power to make the interim extension order;
the words in s 131(2) mean what they say: that the duration of interim extension orders granted with respect to a matter could not exceed 3 months in total, with the consequence that the interim extension order made by Harrison CJ at CL expired on 24 October 2025, bringing to an end the respondent’s status as a forensic patient;
the appellant, as the moving party in the Court below and the only party who would have an interest in challenging in this Court, the refusal of the Supreme Court to extend an extension order, was in a position to ensure that time limits were met;
although the timetable was a “strict regime”, compliance was not impossible, as the appellant was entitled to commence proceedings in the Court below 6 months before the expiry of an order and could file a notice of appeal very quickly after delivery of a judgment by the Court below;
if the consequence of the statutory time limits was to make the appellant’s right of appeal nugatory, this was a matter which the appellant was in a good position to change, by statutory amendment; and
this Court ought not, by a process of interpretation, seek to remedy poor drafting or dilatory conduct by the appellant with respect to the proceedings.
Mr Griffin submitted that time was tight in the present case because the appellant did not commence proceedings until 11 April 2025 (in circumstances where the extension order was due to expire on 24 July 2025 and the appellant could have commenced proceedings on 24 January 2025) and did not file the notice of appeal until 15 October 2025, 19 days after the primary judge made orders and delivered his reasons on 26 September 2025. Thus, he submitted that the appellant was the author of his present predicament and had not sought to explain to this Court his delay in filing the notice of appeal.
Mr Griffin acknowledged that the submission in (1) above had not been put to Kirk JA because of time constraints but, as it concerned a matter of law, he ought be permitted to raise it on the review of the decision. He also acknowledged that the construction which Kirk JA preferred (including having regard to (1) above) was an available construction but that it ought not be accepted, having regard to his submissions outlined above.
As to (1) above, we are not persuaded that the words “extension order” in s 124(1) ought be construed as limited to a final extension order as distinct from an extension order. Section 6 of the (NSW) provides that definitions in an Act do not apply to the construction of the Act in so far as the context or subject-matter otherwise indicates or requires. While s 3 defines “extension order” as meaning an extension order under s 121 (which is a final extension order and has a maximum term of 5 years) and an “interim extension order” as an extension order under s 130 (which has a maximum term of 3 months), the important consideration, as far as the Act is concerned, is that whenever either a final or interim extension order is still current, the person to whom it relates remains a forensic patient: s 101(f). If Mr Griffin’s argument were accepted, the appellant’s rights of appeal would be rendered nugatory in every case where the appeal was filed during the pendency of an interim extension order and not during the pendency of the extension order which the appellant sought to have extended by application in the Court below.
1 The Court erred in:
a. holding at paragraph 37 of the primary judgment that “ordinarily” Court appointed experts should be called to give oral evidence where they have a difference of opinion; and/or
b. placing weight on the fact that the appellant did not call the Court-appointed experts (see paragraphs 103-104 and 111-112) to give oral evidence in circumstances where:
i. neither party required either expert for examination or cross-examination;
ii. the Court did not indicate during the hearing that it would be assisted by oral evidence from the experts;
iii. the experts were appointed by the Court to assist the Court in exercising a power that is protective of the community; and
iv. the ultimate task of the Court was to make its own assessment of whether there was an unacceptable risk and whether that risk could be adequately managed by less restrictive means.
2 The Court erred in its approach to the statutory test in s 122(1)(b) of [the Act] when asking whether the risk posed by the respondent “cannot be adequately managed by other less restrictive means”, in that it confined its attention to whether a particular less restrictive means (being a Community Treatment Order) was available under applicable legislation, without considering whether that alternative means was adequate to manage the respondent’s risk in light of evidence providing reason to doubt that the means would be implemented effectively or at all (see paragraphs 113 to 115 of the primary judgment).
The appellant submitted that the primary judge, in [37] of his Honour’s reasons, had purported to lay down a rule of practice as to what should occur in applications under the Act in particular circumstances, which include where court-appointed experts disagree. He submitted that this amounted to an error, particularly in circumstances where, at the outset of the hearing, the primary judge was informed by the appellant’s counsel that neither expert would be called to give oral evidence, the respondent’s counsel confirmed that he did not want to cross-examine the experts and the primary judge did not indicate any objection to that course.
A judge’s reasons are to be read fairly and as a whole. The primary judge’s statement that “ordinarily” the court-appointed experts ought be called to give oral evidence if there is a difference between them must be read in the context of what his Honour said in the balance of [37]. Although the primary judge’s words could be construed as laying down a general rule, this construction does not do justice to the nuanced considerations evident from a reading of the whole paragraph. In effect, far from laying down a general rule, his Honour was expressing regret that the parties had chosen in the particular case not to arrange (in the case of the appellant) or require (in the case of the respondent) the experts to give concurrent evidence which would have given the Court the opportunity to understand the reasons for the apparent differences in their opinions, with a view to identifying common ground and, potentially, different assumptions on which their opinions were based. It is understandable, particularly having regard to the content of the experts’ reports (which are extracted in part above and addressed in more detail below with respect to ground 2), that the primary judge would have preferred to have the experts give oral evidence so that his Honour could gain more assistance than was available from a reading of their reports.
It is not necessary to say more to dispose of ground 1a, which has not been made out. However, we should say something about the appellant’s suggestion that, as the two experts had been appointed by the Court, the Court could have called the experts itself. We do not accept that suggestion. For the reasons that follow we consider that proceedings under the Act ought be conducted in accordance with the usual practices and procedures apposite to adversarial litigation (with some modification to accommodate the procedure which requires the Court to appoint experts and the requirement that the appellant act as a model litigant).
As is evident from the terms of the Act, the Court is required to appoint two expert psychiatrists, psychologists, or registered medical practitioners (or any combination) following the preliminary hearing: s 126(5). The identity of those practitioners is not, however, a matter for the Court since the order under s 126(5), as in the present case, need only specify into which category the expert is to belong. Thus, the Court’s involvement, while required, is not akin to the selection of, say, a referee, or court expert under other circumstances (such as pursuant to Uniform Civil Procedure Rules 2005 (NSW), Part 31, Division 2, Subdivision 5, rr 31.46-31.54), although, as in other cases, the experts provide their reports to the Court: s 126(5). In the normal course, the appellant relies on the expert reports provided to the Court and the forensic patient obtains other reports in response, if so advised.
It is trite to observe that juries (and judges sitting alone) are not bound to accept and act upon expert evidence but they are not entitled to disregard it capriciously - R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo [2008] VSCA 75; 18 VR 644 at [44].
In Madden v R [2011] NSWCCA 254 at [29] Simpson J (with whom Whealy JA and Hislop J agreed) said in relation to the adversarial system:
“29 ... The roles of counsel and the judge are clearly defined and trespassing by one upon the role of the other is not to be encouraged, certainly not by this Court. It is not the role of a judge to seek out evidentiary material, nor to determine the scope of the evidence put before him or her. ... a judge must be very circumspect in intruding into the role of counsel.”
Having clearly expressed her reservations and concerns with respect to the psychiatric material, it was for the parties to decide what course they wished to take. It was not her Honour's role to decide how they should proceed. That was a matter for counsel. Importantly, there was no requirement for her Honour to tell the parties outright that she intended to reject the evidence of the psychiatrists. In fact her Honour may not have reached that conclusion at that point in time given that submissions were continuing. The identification of her concerns was sufficient.
The appellant submitted, in support of ground 1b, that the primary judge had drawn an adverse inference against the appellant from the circumstance that the appellant did not call Dr Elliott or Dr Youssef to give oral evidence at the hearing. He submitted that this inference was necessarily implicit in the primary judge’s reasons, particularly at [37], [103] and [111]-[112].
If the primary judge had drawn such an inference, this would have amounted to error. However, we do not consider that his Honour’s reasons, when read fairly, establish that this is what occurred. Rather, his Honour observed that there was no reason to prefer Dr Youssef’s opinion, in circumstances where neither expert had been called. As the appellant bore the onus of satisfying the Court to the requisite standard that the risk posed by the applicant could not be adequately managed by means that were less restrictive than an extension order and as one expert, Dr Elliott, considered that the risk could be adequately managed by less restrictive means, his Honour considered it to be open to him to accept that opinion and dismiss the application. This reading of his Honour’s reasons is consistent with the primary judge assessing the evidence as it was, as opposed to drawing an inference against the appellant.
For these reasons, ground 1b has not been made out.
For completeness, we propose to explain why the drawing of such an inference would have been erroneous. While the Court made an order for the appointment of an expert psychiatrist or psychologist or for two psychiatrist or two psychologists, the appellant retained and briefed them to examine the respondent and to prepare reports, which were to be provided to the Court. Thus, the appellant had no control over the actual content of the reports provided by either of the experts, although the appellant was responsible for providing material to the experts. This is to be contrasted with what occurs in other forensic circumstances, where a party’s legal advisers may be provided with a draft report which can be reviewed for admissibility and completeness before it is signed and served.
In circumstances such as the present, there was no basis for either of the following two inferences:
that the appellant did not call either Dr Elliott or Dr Youssef to give oral evidence because he feared that their answers would not assist his case (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8); or
that the appellant did not ask particular questions of Dr Elliott or Dr Youssef (which would have required that they be called to give oral evidence) because he feared that their answers would not assist his case (Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–19).
That these inferences were unavailable does not undermine the proposition that, as the appellant was asserting that an order ought be made, it bore the onus of satisfying the Court of the matters in s 122. The appellant’s decision not to call the experts to give oral evidence, in the absence of a request by the respondent that this occur, is not a matter that weighs against the appellant or in favour of the respondent, or which detracted from the probative force of their reports.
The test in s 122(1)(b) was the principal issue in the case, it being common ground that the Court would be satisfied of s 122(1)(a) to the requisite standard.
The Court’s task of assessing whether the unacceptable risk posed by the respondent could be “adequately managed by other less restrictive means” could not be fulfilled merely by expressing a preference for one competing expert opinion over another. That question was an (and in this case, the) ultimate question. It was the Court which was required to be satisfied under s 122, not the experts. The primary judge was required to undertake his own evaluative assessment of risk, informed by all of the evidence, including the opinions of the experts, who both opined in their written reports on the ultimate question, as they were entitled to do: s 80 of the Evidence Act 1995 (NSW).
The primary judge posed the question in [113] whether the issue in s 122(1)(b) was to be resolved by reference to whether a less restrictive means of managing the risk posed by the respondent was available (that is, whether the risk posed could be managed) or whether the question was whether a less restrictive means would in fact be sufficient to manage the risk and decided that the former was the correct test. The appellant submitted, by ground 2, that this was incorrect.
In the Second Reading Speech for the Mental Health (Forensic Provisions) Amendment Bill 2013 in the New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25639, which inserted the provisions which are presently relevant into the Act, the then Attorney General, the Honourable Greg Smith said of present relevance:
Detention for the protection of the community should only ever occur in exceptional circumstances. Such detention is permissible if it can be demonstrated that less intrusive alternatives have been expressly considered and found to be unsuitable. This proposal specifically requires the Supreme Court to consider the availability of less restrictive options, such as the transfer to the civil mental health scheme, the making of a guardianship order or entry into the Community Justice Program, before making an order.
While the word “availability” is used in this passage, it is plain that the “less intrusive alternatives” must be considered and “found to be unsuitable”. We do not regard the Second Reading Speech as favouring the primary judge’s construction.
We consider that his Honour was incorrect to find that it was sufficient to defeat an application for extension if there were an alternative means available which “could” manage the risk posed by the respondent. This construction is at odds with the protective purpose of the Act and is inconsistent with the word “adequately”, which implies that the way in which the risk is to be managed is concerned with reality rather than hypothetical possibilities. Protecting safety is a question of practical outcomes, not theoretical possibilities. It follows that, in assessing the adequacy of a proposed measure to manage an unacceptable risk, the efficacy and reliability of the measure cannot be ignored. What is to be assessed and adjudged is the risk of the respondent causing serious harm to others and whether the appellant has proved that it cannot (not could not) be “adequately managed by other less restrictive means”.
This difference is fundamental. In our view, his Honour applied the wrong test. Ground 2 has been made out.
The appellant sought that, if the appeal were allowed, an order be made remitting the matter to the Common Law Division to be determined. In the alternative, he sought that this Court deal with the matter finally. It became apparent in the course of argument that both parties were content for the matter to be dealt with on a final basis by this Court and that the appellant had only suggested remitter so as not to take up this Court’s time further. Mr Griffin did not suggest that the respondent would be disadvantaged by this approach and, indeed, supported it.
We consider this to be a convenient course since, as no oral evidence was adduced in the Court below, this Court is in as good a position as the primary judge to determine the ultimate issue and has had the considerable benefit of having been taken through the expert reports in great detail for the purposes of the appeal.
The question for this Court is whether the appellant has proved that the unacceptable risk of the respondent causing serious harm to others if he ceases to be a forensic patient cannot be adequately managed by other less restrictive means. Because of the confined nature of this issue, it is not necessary to summarise all of the evidence which was before the Court below since the expert reports are the most germane to this question.
The additional evidence before the Court, which was not before the primary judge, is that a CTO has been made in respect of the respondent for a period of 12 months expiring on 23 October 2026.
The following matters are common ground:
the respondent suffers from cognitive impairment arising from a traumatic head injury and treatment-resistant schizophrenia;
the respondent’s tendency to psychosis can be relatively well controlled if he is compliant with taking Clozapine daily at a particular time and in a prescribed dose;
a deviation in dose by as little as 50mg (approximately 10% of the total dose) is sufficient to cause symptoms of psychosis, including auditory and visual hallucinations;
the respondent’s insight into his need to take Clozapine is limited as he does not accept that he has schizophrenia (and considers that his psychosis is drug-induced) and does not accept that he needs to take it or that it does him any good;
the respondent resents the side effects caused by Clozapine (which include weight gain, drooling and diminished sexual function);
the respondent values his relative freedom and would prefer to remain living independently;
the respondent, though presently abstinent from prohibited drugs, is addicted to methamphetamine and ice. He continues to think about taking those drugs, although that is not something that he wants to do again;
from 25 September 2014 until 21 February 2024, the respondent was either incarcerated in gaol, in a forensic hospital or on escorted day leave;
since 14 May 2025 (after the commencement of these proceedings), the respondent has been living in supported accommodation, receiving support from NDIS and continues to be subject to the supervision of the Tribunal as he is still a forensic patient; and
if the respondent’s status as a forensic patient were extended, it ought be extended for a period not exceeding two years (Dr Elliott, 2 years; and Dr Youssef, 18 months to 2 years).
I asked Mr Haines if he understood what it means to be a forensic patient. His first reply was, “Um, no,” although he added, “I’m under the thumb.” I asked him if he would take medication if he was not required to. He replied, “I don’t want to, but I do.”
Mr Haines came to speak candidly regarding his use of methamphetamines. He said once more that he believes his index offences were caused by his ice use. He also told me that he continues to think of using ice. … When I asked him why he previously used methamphetamines, he replied, “The rush, the feeling, but the trouble is the drug is worth more than you pay for it.” He recalled earlier instances when he had smashed up his house after using methamphetamines.
He also displayed varying levels of insight into his illness. He complained that it was unfair that others could talk to god but when he does he is labelled a schizophrenic, yet he also acknowledged that he has the illness. He told me he was reluctant to take medications but said that he would. He told me he does not like them, does not believe they help and does not like their adverse effects. He was more reflective and candid regarding his substance use and he spoke of his continued struggles not to use methamphetamines. He spoke of how severely the drug has damaged his life.
Mr Haines does have a mental illness as defined within section 4 of the Mental Health Act, 2007. He has chronic Schizophrenia and, on my assessment, he demonstrated a disturbance of thought form and spoke of what appeared longstanding delusional beliefs and revealed continued evidence of auditory hallucinations. I am not convinced however, that he remains a mentally ill person as defined in Section 14 of the Mental Health Act. He has been entirely compliant with treatment, both at the Macquarie Unit and ever since his transition from that unit through successively increasing periods of leave to his now conditional release to reside at his SIL [supported independent living] with his NDIS providers. He is compliant with his medication and cooperative with the weekly routine at the SIL. Whilst his treating team did report a brief deterioration in his mental state in March, following a reduction in his dose of Clozapine, he appears to have recovered quickly from that episode and his team members report that he is functioning well at the house. I have had regard to his continuing condition in making this assessment. My assessment is that his current mental state will continue as it is now for the medium term, barring any unforeseen precipitant for relapse.
Were he to cease Clozapine or even reduce his dose, it is likely he would suffer a relapse of his psychosis, but I am not convinced this would necessarily lead to an unacceptable risk of serious harm to others. I consider it more likely that such a relapse would lead to a readmission to hospital. A return to methamphetamine use would however, be a critical event and dramatically increase the likelihood of him causing serious harm to others.
Whilst Mr Haines’ current care, treatment and supports are a critical component of managing his risk, I consider he requires additional measures to manage his risk. His level of insight into his illness is mixed at best and he sees little benefit from his medication and instead sees it as a burden. Whilst he does accept treatment, I have concerns that he would gradually come to the realisation that, as a voluntary patient, he can refuse it and would do so.
I do consider a CTO to be an important component of managing Mr Haines’ risk if he ceases to be a forensic patient. I again note that Clozapine is the mainstay of Mr Haines antipsychotic treatment and that, as an oral only treatment, it is difficult to enforce this. Nonetheless, given the concerns around the risk of serious harm Mr Haines would pose, were he to refuse Clozapine, then a breach of a CTO would provide an avenue for early admission to recommence Clozapine without him becoming so unwell as to progress down a path of full relapse of psychosis and a return to methamphetamine use. A CTO can also be seen as an order upon a mental health service to provide continued care. Without a CTO, patients are typically discharged rapidly to GP care alone. I have concerns that, were Mr Haines to suffer a relapse, there would, even with the supervision of his disability providers, be delays before this would be managed assertively by the local mental health service, allowing him to become more unwell and potentially wander from his accommodation and return to a high risk state for serious harm to others; much as occurred prior to the index offences.
(Emphasis added.)
I consider that a combination of Mr Haines’ existing care, treatment and supports with a CTO is the least restrictive means of managing his risk of serious harm to others. I am not convinced that he continues to pose an unacceptable risk of serious harm given his compliance with his current care and treatment. The one caveat to this opinion relates not so much to his compliance with the CTO, but to the readiness of civilian mental health services to continue to manage his risk assertively with a CTO. This is a general concern for all patients with serious mental illnesses. Community Mental Health Services are resource poor and constantly looking for patients to discharge to GP care to allow for new referrals. This is especially so in the current public psychiatry climate in NSW. More specific to Mr Haines, my discussion with Dr Dorney indicated he has spoken with Dr Jabeen, his current community psychiatrist with the St Mary’s Community Mental Health Service. Dr Dorney was left in doubt as to whether the St Mary’s CMHS would pursue a CTO were his forensic order to lapse. I also note that CTOs are of little utility in addressing a relapse into substance use. In favour of Mr Haines’ remaining an active patient of the local mental health service is his treatment with clozapine. Typically, this is managed long term by public mental health services via monthly clozapine clinics, given the highly specialised nature of the treatment. This serves as a point of attachment to the service and a means of regular psychiatric review. On balance, I maintain his risk can be managed with this combination of measures.
He reported that he has expressed his desire to cease taking clozapine however “the doctors don’t agree with me”. When asked why he was prescribed clozapine he said, “I don’t know why [they give it to me], they dance around [the reason]*, they say it is good for me … it**’s an antipsychotic, not that I go off my head, they just put me on it I don’t know why … I want off it … I’*m gonna ask [the doctor] again, I don’t need it”.
Dr Youssef also addressed the respondent’s non-compliance with the previous CTOs which predated the index offences (set out above).
Dr Youssef noted that the respondent maintained, as he had in 2022, that he does not have, and has never had, schizophrenia and that the cause of his psychosis is illicit drugs. She referred to her own concerns, shared by other experts who had examined the respondent, as to whether the respondent would continue to comply with his medication “given his limited insight”.
She also referred to a history which the respondent had given to her in June 2022 that “Mr Haines had previously reported that he had delusions of believing that one of his friends was a ‘gremlin … I grabbed him by the shirt ripped it off and started hitting into him’. He had also reported other instances in the past whereby the respondent believed that people were something else and this resulted in him reacting aggressively (Youssef, 09/06/2022)”.
Of the reduction in the respondent’s Clozapine dose in March 2025, Dr Youssef said:
In March 2025 Mr Haines’ clozapine was reduced, however following this reduction, changes in his behaviour were observed, with him being more vulnerable to anxiety and agitation with periods of pacing and mumbling to himself (Johnstone & Saffron, 14/04/2025). He had locked himself in the bathroom for an hour and on another occasion become fixated on an appointment that he believed a support worker had rescheduled. The decision was subsequently made to increase his clozapine levels to the previous dose.
Mr Haines is noted to be independent in terms of his self-care and activities of daily living, though he remains more dependent on support staff when accessing the community (Johnston & Saffron, 14/04/2025). This however is at odds with another report whereby it was reported that given Mr Haines’ significant neurocognitive deficits, he “requires support and prompting for most activities of daily living” (p.18, Alamyar & Dorney, 30/04/2025). Discussions with a support worker in April 2025 noted that Mr Haines can be observed talking to himself and displaying low frustration tolerance and could become slightly irritable just prior to the depot being due (Johnstone & Saffron, 14/04/2025). It is noted that this support worker was unaware of Mr Haines’ self-harm history.
Dr Youssef also recorded that the respondent told her that now that he was in the community “he is not concerned about his order extending, though did not want to remain on clozapine”.
Dr Youssef addressed the risk of relapse into substance use, which would be likely to carry with it a risk of re-offending (in order to obtain the money to buy the prohibited drugs). She also addressed the risk of violence not confined to substance use and said:
In addition to the above, it is also noted that Mr Haines demonstrates a tendency to ruminate on perceived injustices prior to displaying aggressive behaviour. He has exhibited such aggression towards individuals within his immediate environment, including earlier incidents involving his mother and sister, as well as fellow patients during his hospital admission. This pattern suggests a reactive component to his violent behaviour, wherein he may dwell on perceived grievances over time and subsequently act out aggressively when an opportunity arises. Overall, the factors most likely to provide an exponential escalation in Mr Haines’ risk of reoffending include inadequate community support and supervision, relapse into substance use, financial difficulties, difficulty coping and poor problem-solving, and a cessation of his medication with a deterioration in his mental health.
Likely to exponentially increase his risk would be a combination of paranoid delusions, command hallucinations, substance use, disengagement from mental health and/or support staff. Protective factors include medical adherence, ongoing engagement with mental health professionals and NDIS supports, abstinence from substances, a structured lifestyle, an increase in adaptive coping strategies, stable SIL housing and finances and intensive community support.
Dr Youssef observed that, while the respondent generally appeared “forthcoming” in the examination, “he was most guarded when answering questions specifically about hallucinations”.
When addressing the “nature and likelihood of serious harm”, Dr Youssef said that the respondent “continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient”. Dr Youssef referred to what she had said earlier about the factors which would increase the risk and confirmed:
The risk scenario most relevant to Mr Haines has been described in paragraphs 122-123 and suggests a relapse into substance use, ceasing medication, disengagement from mental health services, an increase in positive symptoms of schizophrenia, an unstructured lifestyle, and difficulty managing his finances coupled with lack of support and general social isolation are likely to cause an exponential increase in his risk. There is also the possibility of Mr Haines perceiving an injustice and ruminating on this, before reacting aggressively at a later time.
(Emphasis added.)
Without an order, Mr Haines could reject the current supports, which would elevate his risk of harm to others.
Although there were differences between the experts, there is much common ground between them, including that the respondent poses an unacceptable risk of causing serious harm if he ceased to be a forensic patient: s 122(1)(a).
According to Dr Elliott, the primary risk of serious harm posed by the respondent arises because if the respondent ceased taking Clozapine and there was no effective intervention, this would result in his becoming “increasingly unwell [with the potential to] wander from his accommodation”. In this event, he would resume taking illicit drugs (most likely methamphetamines); and, as a consequence, would “return to a high risk state for serious harm to others; much as occurred prior to the index offences”.
Dr Youssef agreed that that was the primary risk of harm, although she also appears to suggest that a serious risk of harm would arise if the respondent ceased taking Clozapine because of the increased paranoid delusions and command hallucinations to which the respondent would be subject.
On the histories taken by both experts, there must be a high risk that if the respondent is not required to take Clozapine, he will cease to do so, since he does not accept that he has a mental illness which requires Clozapine to treat it and it has several side-effects that he finds unacceptable. There is no significant difference between the opinions of the experts in respect of this matter. Nor did either expert give any particular weight to NDIS supports, since it was common ground that they are not provided in a forensic context or for the purpose of preventing a recipient of those services from harming others. Mr Griffin accepted that if the respondent ceased taking Clozapine, he would present an unacceptable risk of harm to others.
The real issue between the experts is whether the risks that would flow from the respondent’s decision to cease taking Clozapine can be adequately managed by a CTO in the environment in which the respondent presently finds himself. Before the Court can make an extension order, it must be satisfied to a high degree of probability that the identified risk cannot be adequately managed in that way.
Dr Elliott opined that the risk could be adequately managed through a CTO because he considered that, if the respondent ceases to take Clozapine, the consequences in terms of a serious risk of harm will not be immediate and there are sufficient safeguards in place in terms of his NDIS support and the procedures available under a CTO to intervene in a timely manner to avoid the more serious consequence of that step. In other words, he considered that there would (or might) be some intervention which required the respondent to resume compliant taking of Clozapine before the ensuing downward spiral leads him to taking illicit drugs (which is something that the experts agree the respondent, if thinking rationally, does not want to do but which he remains at risk of doing).
There are four matters which, in our view, establish that the risk cannot be adequately managed by less restrictive means than an extension of the respondent’s status as a forensic patient.
First, in circumstances where the respondent has no incentive to stay on Clozapine because he does not believe it does him any good and it has significant side effects that he finds unacceptable, deterrence is an important factor. The risk of being returned to a forensic facility immediately if he ceases to take Clozapine is likely to be a more effective deterrent than the procedures available under a CTO, which must be exercised with the respondent’s interests in mind.
Secondly, CTOs have not been effective to manage the risk posed by the respondent in the past.
Thirdly, Dr Elliott’s conclusions (that a CTO would be adequate) depend on an assumption that the respondent will be managed assertively by the relevant community mental health services. It would not, in our view, be reasonable to assess the risk on the basis of such an expectation or to place that responsibility on such services in the circumstances of this case, particularly as the focus is the interests of the respondent and the resources of such services are likely to be stretched. The position would be different if the respondent’s willingness to take Clozapine was not wholly dependent on external controls. But that is not the case at present.
Fourthly, we do not think any conclusions can be drawn from the fact that the respondent has complied with the requirement to take Clozapine since he has been a forensic patient. Until recently, he was in a forensic facility. The respondent has only recently moved into his current living arrangements, and he has remained the subject of a forensic order. We think further time is needed to assess the respondent’s response to his current living arrangements before any conclusions can be drawn about his willingness to continue to take Clozapine independently of the external controls placed on him. The evidence suggests that the respondent enjoys his current living arrangements. The hope is that he will develop long-term habits and relationships that are likely to provide some incentive to remain on Clozapine independently of any external controls so as to make less restrictive controls, or no controls, appropriate. However, we do not accept that that is the current position. We consider that an extension of his status as a forensic patient is necessary and agree with the experts that a period of two years is appropriate.
For the reasons given above, we make the following orders:
Dismiss the application for review of Kirk JA’s interim extension order made on 20 October 2025.
Allow the appeal.
Set aside the orders made by Coleman J on 26 September 2025 and, in lieu thereof, make order (4) below.
Pursuant to ss 121, 127(1) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), extend the defendant’s status as a forensic patient for a period of two years from 20 November 2025.
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Attorney General for New South Wales
Haines
(1991) 22 NSWLR 389
(1959) 101 CLR 298
The application to review Kirk JA’s interim extension order was dismissed; the appeal was allowed, Coleman J’s orders were set aside, and Haines’ forensic-patient status was extended for two years from 20 November 2025.
The respondent’s status as a forensic patient was extended by an interim order for 3 months made on 14 April 2022, which commenced on 24 April 2022: Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458 (Lonergan J). On 8 July 2022, Yehia J extended the respondent’s status as a forensic patient pursuant to s 121 for a period of three years commencing on 24 July 2022: Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930.
On 30 January 2023, the Tribunal ordered that the respondent may be absent from the Forensic Hospital for escorted day leave at the discretion of the Medical Superintendent. On 4 October 2023 the Tribunal ordered that he be detained at Bloomfield Hospital for care and treatment and may be absent from Bloomfield Hospital to participate in escorted day leave at the direction of the Medical Superintendent. On 21 February 2024, the Tribunal ordered that the respondent may be absent from Bloomfield Hospital for unsupervised day leave at the discretion of the Medical Superintendent. On 22 October 2024, the Tribunal varied the order to include overnight leave at supported independent living accommodation. On 14 May 2025, the Tribunal granted the respondent conditional release to reside at supported independent living accommodation.
It is significant that Mr Griffin conceded that the construction for which the appellant contended (which was accepted by Kirk JA) was an available construction. Section 33 of the Interpretation Act requires this Court to prefer a construction which would promote the purpose of the Act rather than one which would not.
If the construction contended for by Mr Griffin were accepted, the Court below and this Court would, in all but exceptional cases, have insufficient time to follow the timetable set out in the Act. The Act requires that two experts will be appointed by the Court to examine a forensic patient and provide reports to the Court. Natural justice requires that a forensic patient be permitted some time to obtain an expert report or reports in response. The hearing date needs to be fixed to accommodate those experts, if they are to be called, as well as counsel who have been briefed to review the extensive documentary material. While some cases might be straightforward, it cannot be assumed that they will be so. This means that the judge who hears the matter at first instance will need some time to give adequate reasons for the orders made. Further, the exercise of an appellant’s right of appeal inevitably takes time and, if the matter is remitted, additional time is required. It is not reasonable to expect that all of these steps could be taken within the time of a single interim extension order made at first instance. In addition, although the appellant could commence proceedings 6 months before the expiry of an extension order, the appellant has a right to appeal at any time in the last 6 months of the extension order. This right would be significantly compromised if the respondent’s construction were preferred.
The construction found by Kirk JA is, on the other hand, open on the wording of the Act and is consistent with its purpose. For these reasons, and the reasons given by Kirk JA, his Honour had power to make an interim extension order. The application for review of his Honour’s decision ought be dismissed.
Despite the circumstance that it is the Court which orders the experts to be appointed and that reports be provided within a specific time, the Court is not otherwise responsible for the experts. His Honour might have informed the parties that he would be assisted by oral evidence to resolve the differences between the experts. It would then have been open to the appellant to seek to make the experts available for that purpose or to apply for an adjournment of the proceedings to permit that to occur. But we do not consider that the Act contemplates or authorises the primary judge to conduct an independent role as inquisitor in proceedings which, though protective, are nonetheless adversarial.
It is commonly the case, in other areas where experts are relied upon by one or other of the parties to litigation, that the experts will not be called to give oral evidence. While trial judges might be disappointed with the course the parties have taken (since concurrent expert evidence is commonly of assistance to the Bench), they must deal with the evidence as it is presented to them by the parties. It is, accordingly, not for the primary judge to lay down an ordinary rule as to when experts ought be called to give evidence. It is open to parties to submit, as in the present case, that reports ought be interpreted in particular ways, without requiring the authors to give oral evidence.
There are, of course, circumstances where it would be necessary for a trial judge to flag a possibility to the parties as a matter of procedural fairness, which may require a witness to be called. For example, in Goodridge v R [2014] NSWCCA 37, the trial judge at a special hearing rejected the unanimous expert evidence that the appellant suffered a substantial impairment by abnormality of mind (which would have reduced the verdict from guilty of murder to guilty of manslaughter) on the basis that neither of the experts had viewed the Electronically Recorded Interview of Suspected Person (ERISP), which was taken not long after the offence was committed. An appeal against this decision was dismissed.
The ground that the trial judge had not foreshadowed an intention to reject unanimous expert evidence was rejected as, during the hearing, the trial judge had expressed reservations about the value of the expert evidence, given that the experts had not been privy to the ERISP. Mr Goodridge argued that the trial judge ought to have invited the parties to provide the witnesses with further material and call them to give further evidence and was in error in failing to do so. The Court of Criminal Appeal said, at [116]:
By contrast, Dr Youssef considered that the risk cannot be adequately managed by a CTO. In part, that may be because she assesses the risk as more immediate insofar as it arises directly from the untreated symptoms of his schizophrenia. However, her concern largely appears to arise from her assessment of the adequacy of a CTO to control the risk.
The evidence does not reveal any example in recent years which would demonstrate that the serious risk of harm arises from the respondent’s schizophrenia itself rather than the consequences (illicit drug taking) that ultimately flow from it. This may reflect the efficacy of the measures required by the Tribunal to ensure compliance with medication. Although there is evidence that, including when his dosage was reduced (by 50mg), he has acted aggressively towards people when in a psychotic state, there is limited evidence that he has attempted to harm anyone (other than himself) while in that state. However, the risk of that occurring is real and present, given that the effect of psychosis may be to transform, in the respondent’s eyes another person into a “gremlin” (see above) who needs to be defeated. That said, we note that none of the activities of the respondent that have been harmful to others has arisen directly from the respondent’s schizophrenia (he was not psychotic when he committed the armed robberies, which were committed for financial gain to fund his illicit drug use).
The question of the adequacy of a CTO to control what both experts regard as the primary risk has two components. The first is whether a CTO is likely to have a sufficient deterrent effect on the respondent’s desire to cease taking Clozapine. The second is whether the procedures available in respect of a CTO are sufficient to bring about a timely and effective intervention which results in the respondent resuming the medication if he tries to stop taking it.
Neither expert addressed the deterrent effect of the remedies available if the respondent remains a forensic patient compared to the deterrent effect of those available under a CTO. There is some indication that the respondent appreciates the distinction, at least at a level where he realises that he has a better prospect of continuing to live in the community if he is subject to a CTO than if he is a forensic patient. Both experts expressed concern about the consequences of the respondent realising that, if he were no longer a forensic patient, he would have a greater ability to reject treatment.
Dr Yousef has not identified with any degree of specificity what it is about the procedures available under a CTO that makes it an unsuitable alternative to the continuation of the respondent as a forensic patient in the circumstances of this case, although she does refer to the fact previous CTOs were ineffective. However, it is apparent that the differences are significant. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [100]-[127], Adamson J detailed (by reference to the statutory predecessor to the Act) the differences between the regime for forensic patients and those who were not forensic patients but who were subject to a CTO. It is not necessary to repeat the comparison, which is still relevant, here. It is sufficient to observe that the Act is principally concerned with public safety whereas the Mental Health Act is concerned with providing care and treatment “in the least restrictive environment” for the person in respect of whom a CTO is made. The Tribunal has continuous oversight of a forensic patient and can be constituted quickly to address situations as and when they arise. A breach by a forensic patient can be enforced by taking the patient into custody whereas the mechanism for enforcing a CTO is less immediate, discretionary and is largely dependent on the resources of the local mental health service. There is, accordingly, a significant deterrent effect which operates on forensic patients, which is of much lesser magnitude for those subject to a CTO.
On Dr Elliott’s approach, the question is whether it is reasonable to expect the local mental health service responsible for implementing the respondent’s treatment plan to manage the respondent’s compliance with that plan “assertively”. Dr Elliott made some enquiries of the service responsible for managing the respondent’s CTO (St Mary’s Community Mental Health Services (CMHS)) and concluded “on balance” the risk could be managed with “this combination of measures” (that is, the measures available under a CTO).
There are reasons for questioning this conclusion. One is that the CMHS will be managing the respondent for the respondent’s benefit and not to minimise the risk of harm to others (as required by the Mental Health Act). A second is the fact that CMHS are, according to Dr Elliott, “resource poor and constantly looking for patients to discharge to GP care [which] is especially so in the current public psychiatry climate in NSW”. A third is that Dr Elliott’s opinion may be premised on an incorrect interpretation of s 122(1)(b): namely, whether a CTO could adequately manage the risk, rather than, as we have found with respect to ground 2, whether it actually would adequately manage the risk.
We also regard it as significant that both experts considered that if the order were to be extended, it ought be extended only for two years. As referred to above, it was only after these proceedings were commenced, that the Tribunal allowed the respondent to transfer into supported living accommodation in the community. The respondent was examined by the experts within about 3 months of this occurring, after he had been incarcerated for over a decade.