Attorney General for the State of New South Wales v Wong

Supreme Court of NSW|2019-01-07|Before: Wilson J

CA 374 Lynn v State of New South Wales [2016] NSWCA 57 Minister for Mental Health v Paciocco [2016] NSWSC 1530 State of New South Wales v Thomas (Final) [2011] NSWSC 307 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Category: Principal judgment Parties: Attorney General for the State of New South Wales (plaintiff) Chik Mau Wong by his Tutor Linda Rodrigues (defendant) Representation: Counsel: Ms D New for the plaintiff Ms C Goodhand for the defendant

Solicitors: Crown Solicitors Office for the plaintiff Legal Aid for the defendant File Number(s): 2018/00385329-1 Publication restriction: None

Threshold Requirements

The MH(FP) Act imposes a number of "threshold requirements" that any application of this nature must meet. No issue is taken with that aspect of the matter. When the application was filed in December 2018 the defendant was subject to a limiting term expiring on 9 January 2019. The limiting term had commenced on 10 March 2017, having been imposed by Whitford DCJ in the District Court of NSW, relevant to an offence of reckless wounding contrary to s 33(3)(b) of the Crimes Act 1900 (NSW).
Clause 5 provides that an application for an extension order must be supported by documentation that addresses the criteria referred to in clause 7(2) to the extent relevant to the application, and include a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner, that assesses the risk of the forensic patient causing serious harm to others, 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.
In compliance with those requirements, the application is supported by a volume of documentary material, being the affidavit of Jonathon Vasiliou of 13 December 2018, annexing Ex JV-1, and a further affidavit of the same deponent of 19 December 2018, annexing items A - E. A risk assessment report prepared by Dr Kerri Eagles is included in the documentary evidence.

The Provisions of the MH(FP) Act

Clause 2 of Schedule 1 limits the power of the Court to make an order extending a person's status as a forensic patient. It provides: 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 interpretation of the phrase "unacceptable risk" in cl. 2(1)(a) is understood to be guided by jurisprudence considering the equivalent provisions used in the Crimes (High Risk Offenders) Act 2016 (NSW), of which there is now a considerable body. Authorities considering that legislation generally are of assistance in the application of the MH(FP) Act: see (as a sampling only) Cornwall v Attorney General for the State of New South Wales [2007] NSWCA 374; Attorney General of New South Wales v McGuire [2013] NSWSC 1862; Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118; and State of New South Wales v Thomas (Final) [2011] NSWSC 307.
In Lynn v State of New South Wales [2016] NSWCA 57 the Court of Appeal said the following of the task of evaluating unacceptable risk, at [126], per Basten JA; […] The nature of the risk he posed had 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. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders.
In the same decision Beazley P held that the right of an offender to his or her personal liberty is not a relevant consideration in applying the unacceptable risk test (at [44]).
The Court's power to order the appointment of two psychiatrists, two psychologists, two medical practitioners or a combination thereof is conferred on the Court by clause 6(5) of Schedule 1. It provides that, if following the preliminary hearing the Court is satisfied that the "matters alleged in the supporting documentation would, if proved, justify the making of an extension order", then the Court must make the order appointing the two relevant practitioners and directing the defendant to attend examinations by them.
As to the making of an interim extension order, cl 10 provides: 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.
The decision is made by assessing the material provided by the Attorney as the supporting documentation, without at this stage engaging in any considered evaluation of whether the factual matters set out are well-founded. The Court proceeds on the basis they are proven.
The factors to be considered by the Court in considering whether to make an extension order are set out in s 7(2) which relevantly provides: (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.

The Index Offence and the Imposition of the Limiting Term

On 10 March 2017 the defendant was arrested and charged with offences of enter a dwelling with intent to commit a serious indictable offence, namely intimidation, in circumstances of special aggravation, being the wounding of an occupant of the dwelling and, in the alternative, wounding being reckless as to causing actual bodily harm.
The matter came before Norrish QC DCJ sitting at the Sydney District Court for fitness hearing on 13 February 2018. His Honour had documentary evidence from two psychiatrists before him, being the reports of Dr Satish Dayalan (Ex. JV-1 of the present proceedings, tab 29) and Dr Yvonne Skinner (Ex. JV-1, tab 30). Both doctors regarded the defendant as unfit to be tried. The trial judge made a finding consistent with that evidence, concluding that the defendant was not fit to be tried for the offences with which he had been charged (Ex. JV-1, tab 11).
Pursuant to s. 14 of the MH(FP) Act the defendant was referred to the Mental Health Review Tribunal (the "MHRT" or "the Tribunal") for consideration of whether he would become fit to be tried within a 12 month period. The Tribunal later, on 17 April 2018, determined that he would not become fit (Ex JV-1, tab 23). In reaching that conclusion, the Tribunal had evidence from Dr Anne Farrar, treating psychiatrist at the Long Bay Prison Hospital, and from a psychiatric registrar, Dr Alexey Sidorov.
Dr Farrar reported (Ex JV-1, tab 31) that the defendant was suffering from a "serious mental illness, likely schizophrenia", which was characterized by delusions, thought disorder and bizarre behaviour. Reference was made to a recent MRI brain scan that had identified a lesion which may be contributing to the defendant's psychotic symptoms (a possibility yet to be confirmed).
Dr Farrar observed that the defendant had made a "limited response to treatment at this time and remains acutely unwell, with persecutory delusions, passive suicidal ideations and cognitive impairment".
The Tribunal having concluded that the defendant would not become fit within the relevant period, the matter was returned to the District Court to be determined, with a special hearing held before Whitford DCJ between 29 and 31 October 2018. The trial judge returned verdicts finding the defendant not guilty of the more serious charge, but concluding that, on the limited evidence available he had committed the alternative offence of reckless wounding.
The trial judge found the following facts established (Ex. JV-1, tab 17):
In March 2017 the victim and his ex-wife, Ms. C, were living together at premises in Redfern. They had been married in 2004 but divorced or separated in 2011, at some point resuming co-habitation. The defendant lived in the same apartment block and all three people knew each other.
In early March 2017 the couple had relationship issues and Ms C moved her belongings out of the marital home and into the defendant's unit. She and the defendant commenced an intimate relationship. The defendant quickly became very emotionally involved with Ms C, expressing a desire to marry her. Her husband attempted to persuade her to return to the marital home.
On 9 March 2017, while the defendant was not home, Ms C removed her belongings from the defendant's apartment and returned to live with her husband.
When she later telephoned the defendant to tell him what she had done, the defendant said, "[someone] has to die" or, subject to the accuracy of the translation from the original Cantonese, someone will suffer consequences.
Soon after the defendant went to the apartment where Ms C and her husband lived and there was a confrontation between him and Ms C's husband. When Ms C arrived soon after, she saw the defendant throw pepper at or into her husband's eyes. When he had his back turned, his eyes closed from the pepper, the defendant struck the man in the head with a hammer. Ms C called the emergency services.
The defendant was later arrested.
On 2 November 2018 the trial judge imposed a limiting term of 22 months, to date from 10 March 2017, expiring on 9 January 2019. In imposing that term the judge observed that, This offending [..] I regard as objectively falling reasonably low in the vast spectrum of conduct that might be caught by the offence. The offending was the culmination of a bizarre episode that played out across one week in the lives of three people intimately connected with the relevant events. It occurred in highly emotionally charged circumstances (p.3, Ex. B).
He later (at p.5) said that, Having regard to the highly unusual, even bizarre circumstances out of which the offending developed, I think there is little reason to think other than that Mr Wong will likely be capable of returning to life in the community without incident provided he has appropriate support and access to whatever treatment continues to be indicated from time to time.

The Defendant's Personal Circumstances

Mr Wong was born in China on 15 November 1958 and is 60 years of age. He moved to Hong Kong at age 18 years, and to Australia in 2000. He does not speak English and requires an interpreter.
He is not currently married, although he has been twice married in the past. He is now divorced. Mr Wong told Dr Eagle that he was previously married for many years to the mother of his son, divorcing about 16 years ago. The defendant's son is now aged about 22 years and he has some limited contact with his son. Prior to entering custody, the defendant had not been diagnosed with any mental disorder.
Mr Wong told Dr Eagle that he had been employed, working for the whole of his adult life as a cook. He had been employed in that capacity at the time of arrest. He lived in the Department of Housing apartment block in which the incident with Ms C and her husband occurred.
The defendant has a criminal history, although it is relatively limited. In August 2005 he was placed on a non-conviction bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 2 years after being dealt with for an offence of common assault. At the same time monetary fines were imposed upon him (with conviction) for having a knife in a public place and damaging property.
Apart from the reckless wounding matter, he has no other criminal entries against him.

Conduct in Custody

The defendant was incarcerated from the date of arrest in March 2017. On 24 June 2017 he was found with a plastic bag over his head and bed sheets tying his hands and wrists together (Justice Health report dated 21 September 2017, Exhibit JV-1, tab 28 at p. 133). As a consequence of his apparent suicide attempt, he was screened by the Mental Health Screening Unit at the Metropolitan Remand and Reception Centre. During screening he was observed to be agitated, hostile, and threatening.
He was said to be pre-occupied with "the monkey man" whom he believed was responsible for the index offence. Staff observed bizarre behavior and the defendant repeatedly refused medication.
On 26 July 2017, there was an incident when the defendant was found naked in the yard of the prison in which he was held, without any explanation. Concerns for his mental health continued, with the defendant exhibiting irrational behaviour, and expressing bizarre thoughts. He frequently spoke of "the monkey man" who he said had killed his ex-partner.
On 21 August 2017 Dr Sarah-Jane Spencer, consultant psychiatrist, recommended that the defendant be treated on an involuntary basis to safely manage him. She observed that: [the defendant] presented as perplexed, very little spontaneous speech, he is aroused, irritable and displaying behaviour suggestive of an underlying severe disturbance of mood" (Ex JV-1, tab 25).
Another doctor, psychiatric registrar Dr Kathryn Goodenough, formed a similar opinion to Dr Spencer. On 23 August 2017 she concluded that the defendant was mentally ill under the Mental Health Act 2007 (NSW). She referred to deterioration in the defendant's mental health and that he had made serious attempts on his life (Ex JV-1, tab 26). The defendant was involuntarily admitted to G ward at Long Bay Hospital (Ex JV-1, tab 35), where he denied that he was ill and refused treatment. It was necessary to administer intramuscular antipsychotic medication, after which the defendant improved, and began to comply with oral medication, Olanzapine.
By 17 September 2017 the defendant had settled, and there were no incidents of aggression noted since admission. He was diagnosed with First Episode Psychosis characterised by bizarre behaviour, thought disorder, persecutory delusions, and functional decline. He is cognitively impaired and has passive suicidal ideation. He has a brain lesion which requires further investigation.
On present information, the defendant continues to be mentally ill.

The Current Situation

As the end of the defendant's limiting term approached, the Mental Health Advocacy Service indicated an intention to seek to have the defendant classified as an involuntary patient.
On 11 December 2018 the defendant was transferred to the Forensic Hospital where he remains.
The MHRT reviewed his position on 18 December 2018, noting a concern that arrangements for his discharge and release were in a state of flux. No arrangements had been made for his accommodation upon release and, as the Tribunal said, he could not be treated as an involuntary patient simply to delay discharge whilst accommodation was arranged.
The Tribunal observed (in the report Annexure D to the affidavit of Mr Vasiliou of 19 December 2018) that, [Mr Wong's] symptoms are in partial remission due to antipsychotic and antidepressant medication and he has been behaviourally settled recently. He is compliant with medication in a supervised setting but lacks insight into his condition and need for ongoing treatment.
As to risk, the Tribunal noted, His treating team has assessed him as having a low loading of historical risk factors for violence. He has however, significant problems with insight, attenuated delusional beliefs around the index offence, and cognitive impairment. Overall, the treating team assess him as having a low to moderate risk of future violence.
The Tribunal noted that an application has been made for the appointment of a guardian for the defendant.
The application for the defendant to be classified as an involuntary patient was withdrawn as a consequence of the Attorney's application to this Court.
The Tribunal convened again on 21 December 2018 to further review the defendant's circumstances. It was determined that the defendant had a mental illness and should be detained in the Forensic Hospital to receive appropriate care and treatment (affidavit of Joanna Kwan of 21 December 2018).

Risk Assessment - Report of Dr Kerri Eagles

Dr Eagles saw the defendant on 30 November 2018 and conducted an assessment of him over a period of almost two hours. She concluded, Mr Wong continues to pose a risk of causing serious harm to others if he ceases being a forensic patient and is returned to the community without any conditions. He has engaged in at least two acts of violence, the most recent act being severe and potentially lethal involving a weapon. The latter act most likely occurred in the context of an untreated psychotic episode. Psychosis can have the effect of distorting a person's perception of events, impairing the capacity for problem solving and reducing inhibitions.
The doctor was hampered in the preparation of her report, Ex. A, by a lack of information in determining the nature of the defendant's condition, which may be Schizophrenia or a delusional disorder. Noting the neurocognitive disorder from which the defendant suffers, she could not determine whether it or mental illness had led to the observed decline in the defendant's cognitive capacity and function. She noted that the brain lesion identified in the MRI scan could also be contributing to the defendant's deteriorating cognitive function, and considers that the defendant requires comprehensive cognitive function assessments to be undertaken to understand the impact of the neurological disorder upon the level of risk that may be posed by the defendant.
Dr Eagle utillised the HCR 20 Version 3 actuarial tool in assessing the defendant. The HCR 20 is a professional judgment tool that considers a person's historical and clinical (or present) risk factors for violence to predict a person's recidivism for violence. She found that the defendant had the following clinical factors and risk management factors: 1. Persistent problems with insight into his mental illness and offending behaviours in that the defendant failed to accept he had a mental illness and denied committing the offence; 2. Future problems with professional services and plans and with his living situation; 3. A lack of meaningful personal support; and 4. Future problems with stress or coping.
She considered that the defendant's lack of insight into his illness and the events surrounding the index offence present a significant risk factor because Mr Wong is not likely to comply with treatment in the community without adequate supervision. The likely consequence of that is the re-emergence of the behaviour associated with his psychosis.
Overall, Dr Eagle regarded the defendant's release to the community at this time to be premature. Mr Wong is not properly treated and the impact of any neurocognitive disorder or the brain lesion on his cognitive function and the risks he may pose is unclear. Only under a forensic order, with the oversight of the Tribunal, can a coordinated and broad risk management approach be utilized with the aim of treating Mr Wong and reducing the risks he poses to the community. Dr Eagle's opinion is that the forensic order is the least restrictive way to manage the defendant's current risks.

Unacceptable Risk of Causing Serious Harm to Others

I have referred already to the Schedule which provides that an extension order can only be made if the Court is satisfied to a "high degree of probability" that the "forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient".
In the circumstances that presently prevail, I am satisfied to the requisite degree that such a risk is established, accepting that the evidence adduced by the Attorney in the supporting documentation can be proved. I am also satisfied that, in the current circumstances, no less restrictive option exists to manage that risk.
It may be that the determination of the guardianship application that is pending before the NSW Civil and Administrative Tribunal will provide a less restrictive means of managing Mr Wong. He is a man in his sixties who, until recent events, had shown no sign of presenting a serious danger to the community. If he is properly diagnosed and appropriately medicated, and has the support and supervision of a guardian to make essential decisions for him in his best interests, it may be that the risk he presently poses will be adequately addressed, without need for an order which restricts his liberty, as an order under the MH(FP) Act necessarily does.
An interim order is necessary at this stage because of the lack of any alternative to it that would adequately ensure the protection of the community. It appears that the absence of an alternative is more likely to be because of a lack of planning, than because none exists.
It is important to state that an order such as the present should not be used as a substitute for proper medical care and supervision of a mentally ill person under the Mental Health Act.
In Attorney General of New South Wales v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [96ff] Adamson J summarised the difference between the statutory provisions governing forensic patients detained under the MH(FP) Act and the detention and release of involuntary patients detained under the Mental Health Act. The same issue was considered by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530, where his Honour identified four relevant differences between the two regimes, at [61ff]. At [65], referring to Doolan (No 2), Beech-Jones J observed that, under the MH(FP) Act, the onus is in favour of greater restrictions on forensic patients which needs to be displaced by evidence before the Mental Health Review Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that a restriction is warranted.
At this stage, there is however insufficient information for the Court to conclude that a less restrictive means of risk mitigation exists, under the Mental Health Act or pursuant to a guardianship order and, accordingly, I made the orders sought by the Attorney.

orders

On 7 January 2019 the following orders were made: 1. (a) Pursuant to section 54A and clause 6(5) of schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW), the Court appoints one qualified psychiatrist and/or one registered psychologist, as agreed between the parties, to conduct separate psychiatric or psychological examinations, as the case may be, of the defendant, and to furnish reports to the Court on the results of those examinations by 4 March 2019. 2. (b) The defendant is directed to attend upon the experts referred to in order 1(a) for the purpose of being examined, at such times and places as are agreed between the parties or, failing such agreement, as nominated by the plaintiff. 3. Pursuant to section 54A and clause 10 of schedule 1 to the Act, the defendant is subject to an interim extension order for a period of three months commencing on 10 January 2019 and expiring on 9 April 2019. 4. The proceedings are to be listed before the Common Law Registrar at 9.00am on 8 March 2019 for directions, including the fixing of a date for hearing of the plaintiff's prayers for final relief. 5. In the event that there is any difficulty encountered in the execution of order 1, the parties may approach my Chambers, through my associate, upon 1 days' notice, to my associate and each other. 6. Access to the Court's file in these proceedings is restricted such that access is to 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.
It was noted that, 1. The final hearing of the matter will be in the week commencing 25 March 2019 or the week commencing 1 April 2019; 2. The defendant wishes to be in attendance at that hearing date. 3. The Registrar is to order the attendance of a Cantonese interpreter on the date of the final hearing of the application, for the assistance of the defendant.

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: 11 January 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

Crimes (High Risk Offenders) Act 2016(NSW)

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