Attorney General for New South Wales v Perry

Background the present application

1. On 2 April 2014, the defendant was arrested and charged with offences which can be summarised as follows: 1. one count of aggravated assault with intent to rob with wounding or grievous bodily harm, committed on 1 April 2014, contrary to s 96 of the Crimes Act 1900 (NSW), with an alternative count of recklessly inflict grievous bodily harm contrary to s 37(2) of the Crimes Act; 2. two counts of assault occasioning actual bodily harm, committed on 1 April 2014, contrary to s 59(1) of the Crimes Act.
2. The defendant has been in custody since 2 April 2014 and from 14 January 2016 has been held in the Forensic Hospital.
3. On 2 November 2015, Henson DCJ found that the defendant was unfit to be tried in respect of those offences and referred to the defendant to the Mental Health Review Tribunal (MHRT), under s 14 of the MHFP Act. Eventually the matter was listed for a special hearing, under s 19 of that Act.
4. On 14 July 2017, Girdham SC DCJ found, on the limited evidence available, that the defendant committed the three offences referred to above. These are the index offences, for the purposes of the present proceedings.
5. On 18 August 2017, Girdham SC DCJ imposed limiting terms, under ss 23 and 24 of the MHFP Act, as follows: 1. in respect of the aggravated assault with intent to rob with wounding or grievous bodily harm, a limiting term of four years and eight months commencing on 2 April 2014 and expiring on 1 December 2018; 2. in respect of the first count of assault occasioning actual bodily harm, a limiting term of 12 months, commencing on 1 December 2016 and expiring on 30 November 2017; and 3. in respect of the second count of assault occasioning actual bodily harm, a limiting term of two years and six months, commencing on 1 December 2016 and expiring on 31 May 2019.
6. The overall effective limiting term was, therefore, five years and two months, commencing on 2 April 2014 and due to expire on 31 May 2019.
7. The Attorney General contended that the defendant posed an unacceptable risk of causing serious harm to others if she ceased to be a forensic patient. As a result, the preliminary application was brought for psychiatric and/or psychological examinations to be carried out and for an interim order extending the defendant's status as a forensic patient, so that the application for an extension order for five years could be properly considered.
8. It was not in dispute that the preconditions for the making of an application under s 54A and Sch 1 of the MHFP Act were satisfied in the present case and I am satisfied that they were.

Relevant statutory provisions and principles concerning interim extension orders

1. There was no dispute between the parties as to the applicable provisions or principles. It is sufficient to note the following relevant statutory provisions and principles taken, in large measure, from what I have written recently in Attorney General v Riley by his tutor Rodrigues [2019] NSWSC 602.
2. The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHFP Act.
3. A "forensic patient" is relevantly defined in s 42 of that Act as follows: "For the purposes of this Act, the following persons are forensic patients: (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or ..."
4. The defendant was a forensic patient in that she fell within s 42(a) as a result of the order made under s 24 of the MHFP Act imposing the limiting terms.
5. The objects of Pt 5 are set out in s 40 in the following terms: "40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims."
6. Section 54A, which is found in Pt 5 of the MHFP Act, provides that "[a] person's status as a forensic patient may be extended in accordance with Schedule 1". This is what the Attorney General sought in this matter.
7. The following clauses of Sch 1 of the MHFP Act are relevant for present purposes: "1 Extension orders for forensic patients (1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient. (2) An order made under this clause is an extension order. 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. … 6 Pre-hearing procedures … (4) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 2 registered medical practitioners, or (iv) any combination of 2 persons referred to in subparagraphs (i)-(iii), to conduct separate examinations of the forensic patient and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the forensic patient to attend those examinations. (6) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must dismiss the application. … 7 Determination of application for extension order … (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order. … 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. 11 Term of interim extension order (1) An interim extension order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 3 months from the day on which it commences) as is specified in the order. (2) An interim extension order 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 such an order for periods totalling more than 3 months. …"
8. The statutory provisions and principles concerning preliminary hearings and interim extension orders under the MHRT are not substantially different from those which apply under the Crimes (High Risk Offenders) Act 2006 (NSW).
9. For the purposes of a preliminary hearing under cl 6 of Sch 1 of the MHFP Act, it is not for the Court to weigh up the evidence adduced by both parties, to consider what evidence the defendant might call at the final hearing, or to seek to predict the outcome of the proceedings for final orders: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], and State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 (McGee) at [10]. Rather, the Court is to engage in an evaluative exercise, taking into account all of the supporting documentation relied upon by the State, together with such material as has been tendered on the defendant's behalf, and, proceeding on the assumption that the matters alleged in the Attorney General's supporting documentation are proved, determine whether the facts would justify the making of an extension order: Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [15], McGee at [10]. If so, an interim extension order may be made under cl 10 of Sch of the MHFP Act, and an examination order must be made under cl 6(5).
10. As a result of cl 2(1) of Sch 1, an extension order would be justified if, and only if, the Court is satisfied to a high degree of probability, on the assumption referred to above, that: 1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient, and 2. the risk cannot be adequately managed by other less restrictive means.
11. The "high degree of probability", referred to in cl 2(1) of Sch 1, indicates that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of "more probable than not", but does not have to be proved to the criminal standard of "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11].
12. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (Kereopa No 2) at [16]. Whether such harm is "serious" within the meaning of cl 2(1) will depend, in my view, on whether it is such harm as should attract consideration given the objects, scope and terms of the Pt 5 of the MHFP Act. In Kereopa No 2 at [16], R A Hulme J expressed the view that "serious harm" involves "something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law … [and] psychological harm must be something more than emotions such as fear or panic".
13. Whether the risk of causing serious harm to others is "unacceptable" is to be judged according to its ordinary or everyday meaning and the right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an "unacceptable risk": Lynn v State of New South Wales (2016) 91 NSWLR 636 at [44], [127] and [148]; [2016] NSWCA 57 (Lynn); Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [14]; Attorney-General for the State of New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [24].
14. The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition, based on an absence of protective measures: Lynn at [126].
15. Assessing whether the risk can be adequately managed by other less restrictive means involves determining, in respect of the alternatives available: 1. whether the risk of causing serious harm to others can be adequately managed by each alternative proposed; and 2. how restrictive each alternative is in comparison with the situation if an extension order were made. This is to be judged by reference to, among other things, the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96].
16. The phrase "adequately managed" can be taken 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: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63].
17. It is not necessary for the Court to be satisfied 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: MHFP Act, Sch 1 cl 2(2).
18. In making its assessment under cl 2(1), the Court must have regard to the matters listed in cl 7(2)(a) to (i) of Sch 1 to the MHFP Act.

The evidence

1. The Attorney General's "supporting documentation" included the affidavit of Mr David Stevens and the material annexed to that affidavit as well as the material exhibited to him at the time of swearing the affidavit.
2. In considering the applications for an interim extension order and for the examinations, I am required to proceed on the basis that the matters alleged in that supporting documentation are proved: cll 6(5) and 10(b) of Sch 1 of the MHFP Act.
3. The defendant did not adduce any evidence on this application.

The defendant's background

1. The defendant is a 38-year-old woman of aboriginal descent. She has five children presently in care. There is little information concerning the defendant's early childhood and development. It appears that, when five years of age, she ran away from home due to parental neglect and was eventually placed into foster care. She reported that she was a victim of child sexual and violent assaults during her childhood and adolescent years. According to Department of Community Services documents, she had been in the care of Hunter Aboriginal Children's Service for five years in 1995. She ran away in 1995 on three occasions and returned to live with her natural mother.
2. The defendant's educational and employment background was unclear but it has been noted that she has "never sustained any formal primary or secondary education and has never held paid employment", although a 2012 pre-sentence report indicated that she had completed a Pathways to Education and Employment Program at TAFE.
3. The 2012 pre-sentence report also indicated that the defendant had been in a relationship with her partner and the father to her three youngest children for over 10 years. That relationship had been co-dependent in drug use and the defendant had been the victim of domestic violence by her partner.

Criminal history prior to the index offence

1. The defendant's criminal history commenced in February 1996 when she was about 15 and is very extensive. It is sufficient to note that her convictions have included unlawful entry, larceny, destroying/damaging property, carrying a cutting weapon, failing to appear/breach of probation, malicious damage, brake enter and steal, breach of bail, possession of prohibited substances, goods in custody, furnishing false statements, shoplifting, entering enclosed land without permission, dishonestly obtaining financial advantage by deception, common assault, behaving in an offensive manner and wilful and obscene exposure and driving offences.
2. Prior to the index offences, the defendant served a number of periods of imprisonment. After about May 2012, charges against the defendant appeared to have generally been dealt with under ss 32 and 33 of the MHFP Act.

The index offences

1. The nature of the index offences can be adequately understood from the remarks on sentence by Girdham SC DCJ delivered on 18 August 2017. On 5 July 2017, her Honour had found, on the limited evidence available, that the defendant committed the three offences with which he had been charged on indictment as follows: 1. count 1: that she assaulted the first victim with intent to rob in circumstances of aggravation, namely, at the time of the assault she did use corporal violence upon, and did inflict grievous bodily harm, to the victim. The maximum penalty for this offence is imprisonment 25 years; 2. count 2: that she assaulted the second victim occasioning to her actual bodily harm. The maximum penalty for this offence is five years imprisonment; and 3. count 3: that she assaulted the third victim occasioning to her actual bodily harm.
2. In relation to count 1, the first victim left her flat in a social housing building in Surry Hills and was approached or confronted by the defendant who struck her in the face with sufficient force so as to cause the first victim to hit the wall. The defendant took her handbag and continued to strike the first victim to the head and body. The defendant was seen standing behind the first victim kicking her legs while she was on the ground screaming. The injuries sustained as a result of the offence amounted to grievous bodily harm.
3. As to count 2, the second victim was aged 90 at the time of the offence and sustained a fracture to her right shoulder blade which was extensively bruised. She had been confronted by the defendant after the defendant had committed the attack on the first victim. After the second victim had made her way up the concrete steps which led to the door of her apartment block, the defendant blocked her entrance and then shoulder barged her, with the result that she tumbled back down the concrete stairs. The second victim sustained injury to her right upper and lower arm and right rib pain as well as a fracture to her shoulder blade. The learned sentencing judge held that this offence represented "objectively a very serious example of an offence of its kind, to my mind, well above the mid-range by reason of the obvious vulnerability of the victim by reason of her age".
4. The third count which involved an assault occasional in actual bodily harm to the third victim comprised a single punch to the victim's mouth resulting in a cut. The third victim had left the main door of her unit building and turned around to close the door which is normally kept closed. He was approached by the defendant who said "leave that door open". The third victim stated "I'm a tenant and this door should be closed". Then, without warning, the defendant punched the right side of the third victim's mouth and then head-butted her. The third victim felt immediate pain, screamed and her mouth began to bleed.
5. The first two offences occurred in social housing in Surry Hills and the third offence in social housing in Redfern. The offences occurred over a 40 minute period between 12 noon and 1 o'clock on 1 April 2014 and within the geographical area of about 700 m. Each attack was random and unprovoked. Judge Girdham SC described the first attack as brutal with the injuries inflicted being the culmination of a sustained attack during which the first victim was punched to the head, knocked to the ground and, as she lay vulnerable on the ground, the attack continued with kicks to her head and chest area. The second offence was described as a bullish offence committed on a frail 90 year old lady. It was also noted that the injuries inflicted were of a more serious nature than were often seen in the District Court at the top of the range for such offences. The third attack was unprovoked and vicious, although the resulting injury was a cut to the mouth and the offence fell low on the range of objective seriousness.
6. As has been noted above, for these offences an effective limiting term of five years and two months commencing on 2 April 2014 and expiring on 1 June 2019 was imposed.

Conduct in custody

1. The defendant has been in custody since 2 April 2014. While in custody her conduct has involved a very significant number of assaults on officers and other inmates and other aggressive or violent behaviour. Without attempting to be exhaustive, the material before the Court indicates that there were in the order of 10 instances of assault between 7 May 2014 and 31 October 2015 while she was in Corrective Services custody. There were over 150 documented incidents of violence and aggression since the defendant's admission to Austinmer Women's Unit after January 2016.

Safety of the community - cl 7(2)(a)

1. The "safety of the community" is to be understood in this context as including protecting the safety of members of the public generally as well as ensuring that serious harm is not caused to others: s 40(a) and cl 2(1)(a) of Sch 1 of the MHFP Act.
2. The defendant committed the index offences, which involved significant harm being caused to the victims, including a quite vulnerable elderly woman. Her conduct in custody has also involved physical and verbal aggression and violence. The safety of the community includes being safe from threats of harm, intimidation and assault by being put in fear of physical harm as well as being safe from physical violence and injury.
3. The defendant's other criminal history establishes that her offending has been extensive but has not, prior to the index offences, involved very substantial interpersonal violence.

Reports received from the persons appointed under cl 6(5) - cl 7(2)(b)

1. As there has only been a preliminary hearing, there were no such reports at this stage.

Reports provided under cl 5(b) - cl 7(2)(c)

1. The report provided under cl 5(b) of Sch 1 was that of Dr Kerri Eagle dated 20 March 2019. Dr Eagle was asked to provide a forensic risk assessment and risk management report on the defendant. For the reasons explained on page 4 of her report, the defendant was not able to participate in a structured interview with Dr Eagle. In those circumstances Dr Eagle encouraged her to engage in an informal discussion.
2. Dr Eagle was satisfied that the defendant meets the criteria for a diagnosis of schizoaffective disorder which is a severe chronic psychotic illness characterised by relapses of psychosis and episodes of mood disturbance. It can result in negative symptoms and cognitive impairment. Dr Eagle noted that the defendant has displayed persistent symptoms of psychosis, despite treatment. It was also likely that the defendant has cognitive impairment arising out of her severe mental illness in addition to her use of illicit substances and previous head trauma. Exacerbations in the illness have occurred in the context of non-compliance with treatment, illicit substance use and more recently psychosocial stressor. The defendant's substantial functional impairment as a result of her mental illness was likely to be enduring.
3. In addition Dr Eagle diagnosed that the defendant had a severe substance use disorder, in remission in a highly controlled environment. This has included the abuse of cannabis, amphetamines, heroin and alcohol. Dr Eagle was of the view that, because of her mental illness, it is unlikely that the defendant will have the internal control to avoid substance use in a less controlled environment.
4. It was also observed that the defendant has displayed overt cognitive deficits in attention, concentration and judgement that impair her ability to function independently. Formal neurocognitive testing was not able to be undertaken because of the defendant's disorganised behaviour and mental state.
5. Dr Eagle's risk assessment, using HCR 20 version 3, identified that: 1. The defendant has a high loading of historical factors for future violence including a history of problems with violence, other antisocial behaviour, substance use, relationships, employment, major mental disorder, traumatic experiences, possible violent attitudes, and treatment or supervision response. As a result she has a high baseline risk of violence over the longer term. 2. She also has a high loading of clinical risk factors for future violence over the short and medium terms. These clinical risk factors include problems with insight into her illness and offending behaviour, ongoing emotional, behavioural and cognitive instability, persistent active symptoms of psychosis, non-responsiveness to treatment and engaging in aggressive behaviours despite the highly contained environment of the Forensic Hospital. 3. The defendant also has a number of risk management factors that have been associated with the risk of future violence. Dr Eagle found it difficult to anticipate any setting other than a contained and secure hospital that would be capable of providing adequate professional services that could meet the defendant's illness and criminogenic needs. As to her living situation, it was likely that if she were ever able to be transitioned out of a hospital environment, the defendant would require 24 hour supervision and secure accommodation with the benefit of assertive mental health support. The defendant has no known personal supports. She is unlikely to have the capacity to voluntarily comply with conditions or restrictions and will require assertive, external constraints and supervision to effectively manage the risk factors. As to stress or coping, the defendant's illness is brittle and highly susceptible to any psychosocial stressors.
6. In Dr Eagle's opinion: 1. the defendant has a mental illness and is a mentally ill person for the purposes of the Mental Health Act 2007; 2. She poses a significant and ongoing risk of causing serious harm to others due to the impact of her illness on her mental state and behaviour whether she ceases to be a forensic patient or not. In particular Dr Eagle said: "[The defendant's] risk of causing serious harm to others is unlikely to increase if she ceases to be a forensic patient, as long as she remains at the Forensic Hospital. However, her forensic status may impact on risk management options following discharge from the Forensic Hospital and this may increase her risk of causing serious harm to others … If she were to be transferred to an alternative facility, forensic patient status would enable substantially more oversight by the MHRT of her risk management, care and treatment than if you were not a forensic patient. She would be more easily recalled to secure hospital settings for treatment and the containment of her risk." 1. The defendant's risk of ongoing serious harm to others through physical aggression remains high, as evidenced by her ongoing behaviour in a highly restrictive institutional environment. 2. She could not be effectively managed in the absence of any coercive orders and her risk is unlikely to change significantly over the next five years.

Other reports provided in support of the application or by the forensic patient - cl 7(2)(d)

1. A number of earlier reports from psychiatrists, other medical practitioners and psychologists were included in the supporting material provided by the Attorney General. Some of this material had been reviewed by Dr Eagle and formed part of the basis of her opinions.
2. The parties did not submit that anything in that material would suggest that Dr Eagle's opinions were not well-founded and I'm not aware of anything in that material which would call her views into question.

Relevant orders or decisions made by the Tribunal - cl 7(2)(e)

1. There have been eight MHRT review determinations in respect of the defendant, the latest on 7 February 2019. On that occasion the Tribunal was satisfied that there were reasonable grounds for believing that the present arrangements for care, treatment and control of the defendant were necessary and sufficient for her protection from serious harm and/or for the protection of others from serious harm.
2. Once again, the parties did not submit that anything in the MHRT's determinations, or the supporting material, would suggest that Dr Eagle's opinions were not well-founded and I'm not aware of anything in that material which would call her views into question.

Report of any government Department or agency responsible for the detention, care or treatment of the forensic patient - cl 7(2)(f)

1. There were a pre-sentence report from April 2012, a number of reports from psychiatrists from 2017 and 2015 and records from a Justice Health and the Department of Family and Community Services. The most significant of these had been reviewed by Dr Eagle and formed part of the basis for her opinions.

The defendant's level of compliance with obligations while a forensic patient - cl 7(2)(g)

1. On the basis of the documentation of the defendant's behaviour in custody, referred to above, and Dr Eagle's observations in this regard, I am satisfied that the defendant's level of compliance with obligations while a forensic patient has been poor, in all the circumstances.

The views of the court that imposed the limiting term - cl 7(2)(h)

1. In her remarks when imposing the limiting terms referred to above, Girdham SC DCJ noted many of the factors which have been commented upon by Dr Eagle. Her Honour also noted that the defendant spoke to her aunt regularly on the phone. In addition, the learned judge said: "Given the Court's acceptance that there is a causal nexus between the offender's mental illness and the offending it is to be accepted that general deterrence has no role to play in determining the limiting terms and further, that the limiting terms whilst reflecting the seriousness of the offending should look principally to the rehabilitation of the offender, count[er]ed by the need to impose periods aimed at achieving personal deterrence or the protection of the public from, in this case, [the defendant]."
2. Read as a whole, the judge's remarks on imposing the limiting terms, are not inconsistent with the Dr Eagle's report.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others - cl 7(2)(i)

1. The other material was generally supportive of, and not inconsistent with, the opinions of Dr Eagle.

Unacceptable risk

1. On the assumption that the matters alleged in the Attorney General's supporting documentation are proved, especially the defendant's criminal history, the index offences, the circumstances surrounding those offences and the opinions of, and material reviewed by, Dr Eagle, I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if she ceases being a forensic patient.
2. Although Dr Eagle said that, if the defendant ceased to be a forensic patient, there would be unlikely to be any greater risk provided she remained in the Forensic Hospital, the doctor did emphasise the importance of the defendant remaining a forensic patient. This was so because, even if she were to be transferred to an alternative facility, the MHRT could provide more effective management of her risk of causing serious harm to others and her care and treatment, if she were a forensic patient. In addition, the Tribunal would have a greater ability to recall her to a secure hospital setting for treatment and the containment of her risk to others, if required. I am satisfied to a high degree of probability that this greater oversight and ability to recall the defendant is required in the present case in order to ensure that the risk is not unacceptable.

Adequate management by other less restrictive means

1. On the same assumption and having particular regard to the opinions of Dr Eagle on what was required to manage, in an effective manner in the future, the defendant's psychiatric condition and her behaviour, I was also satisfied to the requisite degree at the risk posed by the defendant cannot be adequately managed by other less restrictive means, such as her being treated as an involuntary patient under the Mental Health Act, especially for the reasons given in the preceding paragraph.

Would the making of an extension order be justified?

1. On the assumption and for the reasons set out above, I was satisfied that the making of an extension order would be justified. In those circumstances the Court's power to the interim extension order under cl 10 of Sch 1 of the MHFP Act was enlivened and the Court was required to make the examination orders under cl 6(5).

Orders made

1. Taking into account the material and my conclusion above and the fact that, quite properly in the circumstances, the orders were not opposed, I made the interim extension order as well as the examination order and the order sought in prayer four of the summons.
2. To facilitate the preparation and listing of the matter for final hearing and in case agreement could not be reached between the parties in relation to the examination order, I thought it appropriate to grant liberty to apply in the terms set out in my orders.
3. After the orders were made, it has been pointed out that it is preferable for the order concerning the further preparation of matters such as the present to grant liberty to the parties to approach the High Risk Offenders (and Forensic Patients) List Judge, rather than "the relevant Common Law list clerk". Accordingly, order 4 recorded on the coversheet has the revised wording.

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: 12 June 2019