(2003) 142 A Crim R 353
R v Mailes (2001) 53 NSWLR 25
Source
Original judgment source is linked above.
Catchwords
(2003) 142 A Crim R 353
R v Mailes (2001) 53 NSWLR 25
Judgment (10 paragraphs)
[1]
Judgment
Graham Mailes is currently subject to a limiting term of 25 years and is a forensic patient within the meaning of s 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"). The limiting term will expire on 27 March 2021. By summons filed on 5 February 2021, the Attorney General for New South Wales seeks orders extending Mr Mailes' status as a forensic patient.
The orders sought in the summons are as follows:
1. An order pursuant to s 54A and cl 6(5) of sch 1 to the Act appointing two qualified psychiatrists, registered psychologists and/or registered medical practitioners (or any combination of two such persons) to conduct separate examinations of Mr Mailes and to furnish reports to the Court, and an order directing Mr Mailes to attend those examinations.
2. An order pursuant to s 54A of and cls 10 and 11 of sch 1 to the Act, that Mr Mailes be subject to an interim order for the extension of his status as a forensic patient commencing at the first moment of 28 March 2021 and expiring three months later.
3. An order pursuant to s 54A of and cls 1 and 7(1)(a) of sch 1 to the Act that be subject to an order for the extension of his status as a forensic patient for a period of three (3) years from the date of the order.
4. An order restricting access to the Court's file in this proceeding such that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
At a preliminary hearing on 9 March 2021, Mr Mailes neither consented to nor opposed the making of the interim orders (1) and (2). He opposes the final order (3). He consented to order (4). At the conclusion of the preliminary hearing I made the orders sought in (1), (2) and (4), listed the matter for final hearing on 7 June 2021 and made a number of case management orders. These are my reasons for making those orders.
Five volumes of material, subsequently reduced to three volumes, were tendered by the plaintiff at the preliminary hearing. In what has become something of a judicial tradition of screaming into the void in these types of matters, [1] I record without hope or expectation of change that the amount of material tendered was unnecessary and excessive.
The evidence constituted supporting documentation in accordance with cl 7(2) of sch 1 to the Act. There were a number of psychiatric and medical reports dating back to 1990, as well as material in relation to previous criminal offending and determinations of the Mental Health Review Tribunal ("the Tribunal"). Not all of the material was relevant to this application. [2] Affidavits of the solicitors for each party, annexing more recent material, were read at the hearing. Having considered the relevant material, I formed the view that it was necessary to grant the interim orders.
[2]
Statutory scheme and relevant case law
The Court may make an interim order extending a person's status as a forensic patient under cl 10 of sch 1 to the Act:
10 Interim Extension Order
The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:
(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
Clause 2 of sch 1 to the Act provides the test for making an order extending a person's status as a forensic patient:
2 Forensic patients in respect of whom extension orders may be made
(1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:
(a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(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 prima facie question for this Court in making the interim orders is whether the matters alleged in the material supporting this application would, if proved, justify a conclusion that Mr Mailes:
1. poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and
2. that risk cannot be adequately managed by less restrictive means.
Garling J considered the meaning of "adequately managed" in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63] - [64]:
"I would take the use of the phrase 'adequately managed' to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community.
The notion that mentally ill individuals ought [to] receive their treatment in the community is well recognised by the community and is entrenched in the [the Act]: s 12, s 38, s 53 and, in particular, s 68. However, the position is novel with respect to a forensic patient who is not mentally ill, or mentally disordered, but as is the case here, a person with an intellectual disability."
It is necessary for the Court to make its own determination as to whether the interim orders are justified, notwithstanding the defendant's lack of opposition. The matters to which the Court must have regard are listed in cl 7(2) of sch 1 to the Act. At the preliminary stage, the test is not a stringent one. It is in a sense predictive of what might happen at the final hearing.
[3]
The index offence
Mr Mailes was charged with the murder of a 19-year-old woman at Albury in 1996. An issue as to his fitness to be tried arose. In 1999, jury found him fit to stand trial following a hearing. The issue of Mr Mailes' fitness to stand trial was raised again at a trial presided over by Newman J and a jury. His Honour refused to entertain further applications. Mr Mailes was convicted of murder and sentenced to 25 years with a non-parole period of 18 years commencing on 28 March 1996. That verdict was set aside in 2001 following appeal to the Court of Criminal Appeal and a new trial was ordered, subject to the outcome of a further fitness hearing. [3] Mr Mailes was found unfit to be tried and a special hearing was conducted. On the limited evidence available, Mr Mailes was found to have committed the murder with which he was charged. Wood CJ at CL imposed a limiting term of 25 years. [4]
In his sentencing remarks, Wood CJ at CL summarised the facts of the murder. Those facts reveal offending of a very serious and disturbing kind. On the evening of 22 March 1996, the victim, Kim Meredith, was last seen leaving the Commercial Hotel in Albury to meet some friends at the Sodens Hotel. Her naked body was found in a carpark behind an office building by a security guard at 2:58am on 23 March. Ms Meredith had two incised wounds to her neck, one of which caused her death. She also had abrasions consistent with her body being dragged. Her clothes and personal effects were strewn around the immediate area. Mr Wilson, a taxi driver, encountered Mr Mailes attempting to use an ATM at 2:40am. Mr Mailes asked Mr Wilson for help and showed him a document that bore Ms Meredith's birth date and a PIN number allocated to her by Racing Victoria. Between 2:45am and 3:00am, Mr Mailes returned to Quamby House, a refuge where he was temporarily staying, and was observed to have blood on his clothing by the officer on duty. Police later learned that Mr Mailes had purchased a knife on 22 March. The case accepted by the jury was that Mr Mailes intercepted Ms Meredith on her way to the Sodens hotel and murdered her.
[4]
Personal circumstances
Mr Mailes is 48 years old. He has an intellectual disability of mild to moderate severity as well as difficulties hearing and speaking due to a poorly corrected cleft palate. He grew up in Forbes as the second eldest of four children. He was exposed to significant trauma in his early childhood, including domestic violence and physical and emotional abuse perpetrated by his father who was an alcoholic. In 1984, at the age of 11, Mr Mailes witnessed his father's murder and following this event, said that "life changed". By 1985 he was regarded as an "uncontrollable child" and became a ward of the state in 1987. Up until his arrest in 1996, it appears that he was shuffled amongst various institutions. He was admitted to Wagga Wagga Base Hospital on more than one occasion and scheduled to Kenmore Hospital "because of acts of aggression and impulsive behaviour".
Several assault charges appear on Mr Mailes' criminal record, including an assault occasioning actual bodily harm, although that is the high watermark of his violent offending before the index offence in 1996. While in custody, he was charged with a single offence of assault against a prison officer. That incident happened in 2000.
Dr Singh (forensic psychiatrist) and Dr Burns (consultant psychiatrist), provided opinions that Mr Mailes suffered from an alcohol and tobacco use disorder, generalised anxiety disorder and exhibits traits of an anti-social personality disorder at the time they prepared their reports in December 2020 and January 2021 respectively. However, Dr Singh notes that the substance use disorders are currently in remission while in a highly supervised environment, with only one instance of a positive drug screen for cannabis in May 2020.
[5]
Progress in the community
Mr Mailes was granted conditional release to the community on 27 May 2014. On 8 November 2015, he absconded from his supervised accommodation after experiencing tension with another resident and receiving messages from his cousin that she was attempting self-harm. He was returned to a local hospital. Over time, he was gradually granted increased periods of leave. In October 2017 he was once again granted conditional release to supported accommodation. There have been no incidents of concern since that time.
Mr Mailes currently lives in accommodation monitored by Disability Service Australia staff 24 hours per day. He cooks, cleans and manages his own finances independently. He has one hour of unsupervised leave twice each day. He generally goes on walks during this leave. He is visited regularly by the local Community Mental Health Team and a local disability service which assist him with shopping and other activities. Mr Mailes' case manager, Ms Toohey, notes that he adheres with his current order at all times, consistently tests negative for alcohol and drug use and does not act aggressively. Despite past instances of aggression toward staff, Ms Toohey says that Mr Mailes presently displays warmth and has a good rapport with his treating team. He also has a supportive peer network who he contacts regularly and refers to as family.
Mr Mailes expresses a desire to live in a private rental home with his own dog and is keen to engage in cleaning work with a not-for-profit Australian disability enterprise in the near future. Ms Toohey notes that he is aware these are long-term goals to work towards.
Mr Mailes receives support through the National Disability Insurance Scheme. [5] Disability Services Australia and the local disability service provide disability support to Mr Mailes subject to his NDIS plan, which is to be reviewed in May of this year. The Court was advised that the level of funding and support available would change if Mr Mailes ceased to be a forensic patient on 27 March 2021. In particular, Disability Service Australia has already evinced an intention to withdraw support if Mr Mailes ceases to be a forensic patient.
[6]
Assessment of risk
Dr Singh conducted an assessment of Mr Mailes' risk of violence and "general re-offending" using Historical Clinical Risk-20 Version 3 - a structured professional judgment tool. The assessment indicated a high loading of historical risk factors associated with violence in the longer term, taking into account Mr Mailes' history of exposure to interpersonal violence during childhood, other anti-social behaviours, relationship instability, issues with gaining employment and significant past alcohol use. However, Mr Mailes current behaviour indicated a low loading of clinical/ dynamic risk factors with current living conditions and supports in the short to medium term. Overall, he assessed Mr Mailes as falling into the moderate-risk category.
Mr Mailes was also assessed by Ms Cusack and Mr Wu of the Community Justice and Integrated Services Program using the Assessment of Risk and Manageability of Individuals with Development and Intellectual Limitations (ARMADILO-G). ARMADILO-G is a structured professional judgment tool designed to assess the risk of violence in people with intellectual disabilities. Unlike mainstream risk tools, it takes into account specific environmental factors relevant to people with intellectual disabilities that influence the risk of violence. This includes the support the subject receives from disability services in the community. Using this tool, Mr Mailes was assessed as being a low risk of committing acts of violence.
The risk assessments and opinions of professionals as to Mr Mailes' risk of serious harm to the community, including of Dr Singh, Dr Burns and Ms Toohey, were predicated on the current level of support and supervision afforded to Mr Mailes. That includes the fact that he has supervised care for 24 hours each day, subject to his 1-hour periods of unsupervised leave. The level of risk posed by Mr Mailes to the community is said to increase significantly if that support were to change. On 21 January 2021, Dr Burns noted that "if this level of support reduces, there is a high chance that the risk of future violence will increase accordingly".
[7]
Determination
At this stage, prior to the review of the NDIS funding package in May 2021, it is uncertain what support would be available to Mr Mailes if he ceases to be a forensic patient and whether that support would be adequate in the context of Mr Mailes' specific needs. That includes, relevantly, the support he would receive to manage the risk of violence. There is not enough information before the Court about what "less restrictive means" would be available to ensure that Mr Mailes is adequately managed in the community because of the uncertainty surrounding the availability of NDIS funding.
Although Mr Mailes has made substantial progress under his current conditions, the seriousness of the index offence and his history of violence and aggression indicate that there may be a significant risk to the community if the level of support changes. Largely because of the uncertainty surrounding the ongoing level of support, I accepted that the material, if proven, would justify a conclusion that Mr Mailes poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. That assessment of risk required a balance to be struck between the low level of risk (as described in the most recent reports) and the potential extreme nature of the consequences if that risk were to manifest. The second factor in the balancing exercise is demonstrated by the facts of the index offence. On the material available, the risk cannot currently be adequately managed by less restrictive means.
It is anticipated that by the time of the final hearing there will evidence as to what would happen, in terms of Mr Mailes' care and support, if he ceases to be a forensic patient. At the time of the preliminary hearing there was no such evidence.
[8]
Orders
It was for those reasons that I made the following orders at the conclusion of the preliminary hearing:
1. An order pursuant to s 54A and cl 6(5) of sch 1 to the Mental Health (Forensic Provisions) Act 1990 ("the Act").
2. An order appointing two qualified psychiatrists, or one qualified psychologist and one qualified psychiatrist, to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 9 May 2021.
3. A direction that the Defendant attend those examinations.
4. The parties are to agree on the identity of the two experts by 5:00pm on 15 March 2021 and to have liberty to apply to my Associate to relist the matter if no such agreement is reached.
5. An order pursuant to s 54A and cls 10 and 11 of sch 1 to the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing at the first moment of 28 March 2021 and expiring on 27 June 2021.
6. The final hearing is listed on Monday, 7 June 2021 with an estimate of 1 day and the possibility of one further day. I recommend the matter be listed before me if possible.
7. The plaintiff if to file and serve any additional evidence on or before 9 April 2021.
8. The defendant is to file and serve any additional evidence on or before 30 April 2021.
9. The plaintiff is to file and serve any evidence in reply on or before 14 May 2021.
10. The plaintiff is to file and serve written submissions on or before 14 May 2021.
11. The defendant is to file and serve written submission on or before 21 May 2021.
12. The plaintiff is to file and serve written submissions in reply on or before 28 May 2021.
13. An order restricting access to the Court's file in these proceedings such that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court makes the following orders:
1. A non-publication order that prohibits the publication of any material that could identify (directly or indirectly), the defendant's current address, future addresses and the local government areas relating to such addresses.
2. A suppression order that prohibits the publication of any material that could identify (directly or indirectly) the defendant's current address, future addresses and the local government areas relating to such addresses.
3. These orders are to apply throughout the Commonwealth.
4. I am satisfied that it is necessary for this order to apply outside the state of NSW to achieve the purpose of the grounds set out in s 8 of the Act.
5. I list the final determination of these orders as a matter of urgency.
[9]
Endnotes
State of New South Wales v Lidster (Final) [2020] NSWSC 788 at [21] (Hamill J); State of New South Wales v Stevenson (Final) [2019] NSWSC 778 at [19] (RA Hulme J); State of New South Wales v Schmidt [2019] NSWSC 764 at [13] - [14] (Hamill J); State of New South Wales v Steven Single [2019] NSWSC 176 at [6] (Hamill J); State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 at [31] (Garling J).
Cl 5(a) of sch 1 to the Act.
R v Mailes (2001) 53 NSWLR 25; [2001] NSWCCA 155.
R v Mailes [2003] NSWSC 707; (2003) 142 A Crim R 353.
National Disability Insurance Scheme Act 2013 (Cth).
[10]
Amendments
01 April 2021 - Paragraphs [16] and [18] amended to ensure compliance with non-publication order.
01 April 2021 - Judgment amended to include the relevant suppression and non-publication orders made.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 April 2021