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[2025] NSWSC 774
Supreme Court of NSW
2025-07-22
Harrison CJ at CL
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General of New South Wales v Haines (Preliminary) [2025] NSWSC 774
Hearing dates: 10 June 2025
Date of orders: 22 July 2025
Decision date: 22 July 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision: (1) Order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020:
(a) Appointing two qualified psychiatrists to conduct separate examinations of Mr Haines and to furnish reports to the Supreme Court on the results of those examinations by 24 September 2025; and
(b) Directing Mr Haines to attend those examinations.
(2) Order pursuant to ss 130 and 131 of the Act, that Mr Haines be subject to an interim order for the extension of his status as a forensic patient commencing on 24 July 2025 for a period of three months.
Catchwords: MENTAL HEALTH – forensic patient – preliminary application to extend status as forensic patient –schizophrenia – substance use disorder – traumatic brain injury – whether matters alleged in the supporting documentation would, if proved, justify the making of an extension order – psychiatric reports – orders made pursuant to ss 126(5), 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131
Evidence Act 1995 (NSW), s 191
Cases Cited: Attorney General of New South Wales v Haines (Final) [2022] NSWSC 930
Texts Cited: Practice Note SC CL 12
Category: Principal judgment
Parties: Attorney General of NSW (Plaintiff)
Dale Thomas Haines (Defendant)
Representation: Counsel:
K Ng (Plaintiff)
T C Spohr (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2025/143637
Publication restriction: Nil
HIS HONOUR: On 8 July 2022, Yehia J made an order pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that Dale Thomas Haines be subject to an order for the extension of his status as a forensic patient for a period of three years from midnight on 24 July 2022: see Attorney General of New South Wales v Haines (Final) [2022] NSWSC 930. Familiarity with the terms of her Honour’s judgment will be assumed for present purposes.
By summons filed on 11 April 2025, the Attorney General sought the following orders:
An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020:
(a) Appointing two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of such persons) to conduct separate examinations of Mr Haines and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) Directing Mr Haines to attend those examinations.
An order pursuant to ss 130 and 131 of the Act, that Mr Haines be subject to an interim order for the extension of his status as a forensic patient commencing on 24 July 2025 for a period of three months.
In support of the application the Attorney General relied upon the affidavits of Kate Lawrence affirmed 11 April 2025 and 20 May 2025 and the exhibits to those affidavits. Mr Haines did not object to that evidence. He did not tender any additional material.
The Attorney General’s application is opposed.
The matters that are referred to in what follows are taken from a Joint Statement of Facts prepared and filed in accordance with Supreme Court Practice Note SC CL 12 and are agreed pursuant to s 191 of the Evidence Act 1995.
Mr Haines was born in January 1981 and is presently 44 years old. He is currently not in a relationship and has no dependent children. He has ongoing contact with his parents.
Mr Haines has been a forensic patient since 15 May 2017. Between 22 October 2024 and 14 May 2025, he was ordered to be detained at Bloomfield Hospital for care and treatment but was granted access to unsupervised day leave and unsupervised overnight leave at supported independent living accommodation by the Mental Health Review Tribunal. Since 12 November 2024, Mr Haines has been residing in the community in that supported independent living accommodation, provided by We Assist You Disability Services. On 14 May 2025, he was granted conditional release by the Tribunal to that accommodation.
Mr Haines completed primary school and attended high school up to Year 11. He currently receives a Disability Support Pension.
Mr Haines’ history of alcohol and substance use commenced at the age of 15, with the consumption of alcohol and use of cannabis. He subsequently used amphetamines from his late teenage years, after which he commenced the use of crystal methamphetamine, which he was using (along with cannabis) in the period leading up to the index offence. Mr Haines reports that he has been abstinent from substance use since his admission to the Forensic Hospital seven years ago and has been subject to regular random testing.
Mr Haines has been diagnosed with chronic schizophrenia and substance use disorder. His schizophrenia is characterised by auditory and command hallucinations, delusions of reference, persecutory and grandiose delusions, paranoia, and thought disorder. His symptoms of schizophrenia worsen in the context of substance use and non-compliance with treatment. Mr Haines also suffers from a cognitive impairment which is likely contributed to by his brain injury, chronic psychotic illness and prolonged substance use. He was admitted to an inpatient psychiatric unit, the Mandala Unit in Gosford, for the first time at the age of 21. He has had at least 5 or 6 psychiatric admissions, most commonly to James Fletcher Hospital.
Mr Haines’ criminal history commenced in 1999 at the age of 18, with four charges of robbery with actual violence, in relation to which he served 7 months imprisonment in Queensland. His subsequent criminal history in New South Wales includes offences of assault occasioning actual bodily harm, possession of prohibited drugs and multiple counts of robbery armed with an offensive weapon.
Mr Haines remains on the antipsychotic medication Clozapine, which was first prescribed in June 2016. He has a history of non-compliance with treatment but has been compliant with the medication since his transition to supported independent living accommodation. In February 2025, Mr Haines’ dosage of Clozapine was reduced from 575mg to 550mg, and in March 2025 was further reduced to 525mg. Following reported changes in his behaviour in April 2025, his Clozapine was increased to 575mg.
Between 26 June 2014 and 25 September 2014, Mr Haines was charged with a number of armed robbery and assault offences in relation to service stations in Smithfield, Fairfield and Strathfield, as well as a bank in Umina.
On 17 August 2015, he was found unfit to be tried for the index offences by his Honour Judge Sides QC. On 21 April 2017, following a special hearing, her Honour Judge English found that on the limited evidence available, Mr Haines had committed the following offences:
(a) six counts of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900; (b) one count of face disguised with intent to commit robbery contrary to s 114(1) of the Crimes Act; (c) one count of robbery simpliciter contrary to s 94 of the Crimes Act; (d) one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; and (e) an additional offence of common assault contrary to s 61 of the Crimes Act was taken into account pursuant to s 166 of the Criminal Procedure Act 1986.
Mr Haines has maintained compliance with his medication regime in recent years. He has engaged positively in psychosocial rehabilitation. There have been no significant concerns reported when he has been on supervised/unsupervised leave from Bloomfield Hospital.
Recent behavioural changes were reported in the context of reduction to Mr Haines’ medication. In response to medication side effects (hypersalivation), a plan was made in February 2025 by Mr Haines’ treating team in conjunction with the Nepean Clozapine Clinic to trial a gradual reduction in clozapine dosage from 575mg to 550mg, and then to reduce the dosage further to 525mg in March 2025. After the treating team was made aware of the behavioural concerns in April 2025, Mr Haines’ clozapine dosage was increased back to 575mg.
Mr Haines recently returned a non-negative UDS result for amphetamines on 5 March 2025. The test was repeated three weeks later with a negative result. Dr Dorney was of the opinion that this result was erroneous and that Mr Haines was accompanied by supported independent living workers at all times.
Dr Sathish Dayalan, forensic psychiatrist, assessed Mr Haines via audiovisual link on 8 November 2024 and prepared a Risk Assessment Report dated 29 November 2024 for the purpose of s 125(b) of the Act.
It was Dr Dayalan’s opinion that Mr Haines meets the DSM-5 criteria for a diagnosis of schizophrenia and substance use disorder (currently in remission). His schizophrenia is chronic and treatment resistant, requiring ongoing psychotic medication to lower the risk of acute exacerbations. His substance use disorder has been chronic but is currently in remission. Dr Dayalan considers that the risk of relapse into substance use increases with the transition into living in the community, as well as the experience of stressful life events, association with users of illicit drugs and lack of supervision.
Dr Dayalan notes that Mr Haines also suffers from a significant cognitive impairment which affects his frontal and temporal lobes. This impairment is permanent with some fluctuations in severity anticipated in response to exacerbation of psychotic symptoms and substance use.
Dr Dayalan considers that Mr Haines has a high loading of static risk factors for future violence which indicates he poses a risk of violent behaviour in the long term. He has a moderate loading of clinical risk factors, including limited insight into his condition and ongoing experience of psychotic symptoms. Mr Haines has not exhibited emotional or behaviour instability in the last six months and has had no problems with violent ideation or intent in the same period. His recent transition to independent supported accommodation is a necessary and appropriate step for his rehabilitation notwithstanding a risk of escalation in dynamic risk factors given the reduction in supervision and support.
Dr Dayalan identifies the nature of Mr Haines’ risk of causing serious harm as including physical aggression toward members of the public and those in his immediate social milieu, with and without using weapons. Dr Dayalan notes that this risk will vary in circumstances where Mr Haines has a lack of adequate supervision, non-compliance with treatment, use of illicit drugs and financial stress. Dr Dayalan noted that ongoing engagement in psychosocial rehabilitation and adequate support in the community could assist with his mental state, abstinence from substances and living circumstances.
Dr Dayalan considers that Mr Haines’ risk of causing serious harm to others can be appropriately managed through the continuation of his status as a forensic patient, given that his transition into community living will need to be carefully supervised and monitored. In Dr Dayalan’s view, Mr Haines’ status as a forensic patent is required to manage the risk of causing serious harm to others as he transitions into community living.
Dr Dayalan considers that the least restrictive form of management of Mr Haines’ risk of harm to others is the continuation of his placement in supported independent living accommodation whilst being managed as a forensic patient. Dr Dayalan considered that the risk could not be adequately and appropriately managed through a community treatment order or the provisions of a Guardianship Order.
Dr Dayalan also noted that detaining Mr Haines as an involuntary patient in a psychiatric unit under the Mental Health Act 2007 would be more restrictive than placement in the community as a forensic patient granted conditional release. He considered that an appropriate period for extension of the limiting term would be one to two years, considering the relative stability in Mr Haines’ presentation with a transition to a medium secure facility.
Dr Youssef is a psychologist and prepared a report for the purpose of the previous extension order proceedings before the Court on 9 June 2022. Dr Youssef conducted two semi-structured clinical interviews with Mr Haines on 25 May 2022 and 2 June 2022. She diagnosed him with schizophrenia, a major neurocognitive disorder due to a traumatic brain injury, and a substance use disorder (in remission in a controlled environment).
Dr Youssef considered that Mr Haines’ ongoing symptoms of schizophrenia, which she acknowledged had reduced, and low insight into his treatment, meant that he posed a risk to himself and the community should he not be within a treatment facility at this point.
She considered that his risk could be adequately managed at the Forensic Hospital within the Long Bay Correctional Complex, but recommended a move to a less structured unit to increase his independence and autonomy. Dr Youssef did not consider that his classification as an involuntary patient under the Mental Health Act would provide him with the required intensity of services and management. Dr Youssef considered that a community treatment order would not currently be viable because Mr Haines did not have access to accommodation, social support, NDIS support, insight or consistent willingness to continue medication. She also thought that a Guardianship Order did not have sufficient authority and control to manage his risk and complex needs at the time of the report.
Dr Youssef considered that an extension order would be appropriate to address Mr Haines’ risk to himself and the community. She thought that such an order should be made with a plan preparing Mr Haines for conditional release, noting the risk of maintaining restrictive or containment controls would adversely affect his reintegration potential and reduce the chances of desistence.
Dr Dayalan prepared a report for the purpose of the previous extension order proceedings. He reviewed Mr Haines for that purpose on 30 May 2022.
Dr Dayalan diagnosed Mr Haines with schizophrenia, severe acquired brain injury and cannabis, opiate, and stimulant use disorders currently in remission. He did not consider that a diagnosis of intellectual disability was available in light of Mr Haines’ acquired brain injury, noting that the neuropsychometric assessment revealed his intelligence to be in the borderline range.
Dr Dayalan assessed Mr Haines’ risk of violence using the HCR-20, concluding that he had a high loading of historical risk factors for violence. These factors are static and indicated an increased underlying risk of violence in the long term. Mr Haines had a moderate loading of clinical and dynamic risk factors that influenced his risk of violence in the short to medium term. Dr Dayalan noted that dynamic risk factors may be amenable to modification by the implementation of a risk management plan. He also considered that the dynamic risk factors of most significance were ongoing psychotic symptoms, limited insight into mental illness, substance use and violence risk, impulsivity, superficial engagement in treatment and rehabilitation, access to substances, living circumstances, level of support and supervision from specialist services, and psychosocial stressors. Dr Dayalan thought that his risk formulation required close monitoring and management, and that any reductions in the level of supervision and monitoring would need to be graded and given sufficient time to assess the escalation of any risk factors.
Dr Dayalan considered that Mr Haines’ risk factors would not be adequately managed as an involuntary patient or under a community treatment order. He concluded that an extension to his status as a forensic patient was most appropriate for addressing his risk factors and that there were no other less restrictive means available given his current presentation.
Dr Dorney prepared a report for the Tribunal’s hearing on 14 May 2025. He said that Mr Haines had been attending fortnightly AVL reviews with the Macquarie Unit inpatient team since his transition to supported independent living accommodation on 12 November 2024. Dr Dorney reported that, during this period, Mr Haines’ mental state had remained stable, without positive symptoms of psychosis, although there were ongoing negative and cognitive symptoms. There was no evidence that Mr Haines was experiencing thought disorder or positive psychotic symptoms since his arrival at the Macquarie Unit or since he transitioned to the supported independent living. Dr Dorney considered his insight to be reasonable in the context of his cognitive impairment.
Dr Dorney noted that Mr Haines was admitted to Blacktown Hospital under the orthopaedics team on 1 April 2025, due to ongoing post-operative wound infection after an elective excision of a cyst on his right elbow. While on the orthopaedics ward, he had NDIS staff attending 24-hourly and was monitored by the Blacktown CL Psychiatry team. Dr Dorney said that Mr Haines’ mental state had reportedly remained stable on the ward until his discharge on 16 April 2025 and no concerns were raised. He considered that Mr Haines’ tolerance of this stay was significant evidence to suggest he was quite well in terms of his schizophrenia.
Dr Dorney indicated that Mr Haines had transitioned into supported living accommodation, with support from the NDIS, PCLI, the supported independent living provider, and local Community Mental Health Team. Unlike the circumstances at the time of his index offending, Mr Haines was engaging in multiple layers of professional supports and his positive symptoms of psychosis were well controlled on current medications. There were no concerns foreseen with Mr Haines’ medication compliance, although due to his limited cognitive capacity, he was likely to require supervision of his clozapine administration indefinitely. Dr Dorney anticipated that Mr Haines would continue to attempt to engage in his continued rehabilitation and with his supports but was mindful that his cognitive capacity would limit his ability to engage.
Dr Dorney recommended that Mr Haines be granted conditional release to his supported independent living accommodation, with follow up and treatment to occur with the Penrith Community Mental Health Team. Mr Haines had exhibited a stable mental state since transitioning into the community, and had remained compliant with his medications. Dr Dorney acknowledged Mr Haines’ insight into his illness, his ongoing need for medication and abstinence from substances. Dr Dorney noted that Mr Haines would continue to be monitored by the Community Mental Health team and the supported independent living accommodation staff.
Larissa Johnstone is a psychologist. Dr Miriam Saffron is a psychiatrist. They prepared a report on behalf of CFMHS for the Tribunal’s hearing on 14 May 2025. Ms Johnstone and Dr Saffron conducted an interview with Mr Haines on 26 March 2025 and also gathered collateral information, including from the Penrith Community Mental Health Team, Mr Haines’ SIL/NDIS support workers, and Dr Dorney.
Ms Johnstone and Dr Saffron diagnosed the Defendant with schizophrenia, substance use disorder (stimulant use disorder, cannabis use disorder – in remission in controlled environment), and cognitive impairment secondary to traumatic brain injury.
They noted that Mr Haines had a history of reactive aggression and of making threats to cause serious harm to others. In their view, his aggressive behaviour appeared to be influenced by a combination of factors including illicit substance use, reduced frustration tolerance and inhibition associated with his acquired brain injury, and/or to have been psychotically driven.
They considered that Mr Haines had a high loading of historical risk factors, a moderate loading of clinical risk factors, and a low-moderate loading of future risk management factors. CFMHS noted that this suggested a moderated level of concern for future episodes of reactive violence in the present and medium to longer term. However, in CFMHS’ view, his current level of support, relative stability, abstinence and treatment engagement suggested a lower level of concern for imminent violence.
Ms Johnstone and Dr Saffron considered that, whilst there continued to be an element of treatment resistance to Mr Haines’ presentation, there was ample evidence he had benefitted from a prolonged period of abstinence and consistent psychiatric treatment and support. They considered that he had partial insight into his illness, his need for treatment and the necessity of remaining abstinent from substances.
Ms Johnstone and Dr Saffron concluded that Mr Haines required care and treatment for his mental health impairment, for his own protection and the protection of others from serious harm. They considered that his placement in the community on a Forensic Order with monitoring from the community mental health team was the least restrictive environment.
Dr Jayasekera and Dr Dorney prepared a report for the Tribunal’s hearing on 22 October 2024. They reported that Mr Haines continued to display no positive symptoms of psychosis, although he continued to demonstrate significant negative symptoms and cognitive deficits. There had been no issues with his behaviour, violence or his medication compliance. Supported living accommodation had been obtained for him in Leonay, and he had been referred to the community mental health team which would be managing his care from that location.
Dr Jayasekera and Dr Dorney reported that there was no evidence that Mr Haines was experiencing thought disorder or positive psychotic symptoms, and there were no thoughts of deliberate self-harm or harm to others. The doctors considered Mr Haines’ insight to be reasonable in the context of his cognitive impairment.
Drs Jayasekera and Dorney said that the treating team was planning to transition Mr Haines into the community, to reside at supported living accommodation in Leonay. He had been accepted for case management by the relevant community mental health team and NDIS funding had been obtained. They considered that Mr Haines would require considerable support whilst he transitioned into the community provided by the NDIS and the local community mental health team, with ongoing telehealth appointments during the transition. No concerns were anticipated with medication compliance. It was noted due to his limited cognitive capacity that Mr Haines was likely to require reminding and organising in relation to his clozapine administration indefinitely, which could, and would, be provided by the NDIS support workers.
The doctors recommended that Mr Haines be granted unsupervised overnight leave of up to seven nights at the supported independent living accommodation.
Drs Jayasekera and Dorney also prepared a report for the Tribunal’s hearing on 6 September 2024. They reported that Mr Haines’ mental state had been stable since he was last reviewed by the Tribunal, with him exhibiting no positive symptoms of psychosis, despite his ongoing experience of negative symptoms. They noted that he had been utilising his unescorted day leave to attend various activities with the NDIS (e.g. shopping, basketball and playing pool). Mr Haines had also been taking part in jujitsu classes and a basketball competition and had successfully completed a TAFE cooking course on preparing simple dishes.
The doctors examined Mr Haines for the purpose of preparing their report. He did not display any signs of formal thought disorder or positive symptoms of psychosis. He demonstrated partial insight into his condition and was agreeable to taking his prescribed medication. They indicated that appropriate supported living accommodation was still being sought. Once such accommodation was approved, the treating team would seek an early hearing to request an approval for overnight leave.
Dr Rourke and Dr Dorney prepared a report for the Tribunal’s hearing on 21 February 2024.
Dr Rourke and Dr Dorney reported that Mr Haines had settled in well to the Macquarie Unit since being transferred there on 21 September 2023. He had engaged positively with the rehabilitative aspects of the ward’s program and had not had any interpersonal conflict with other patients. Mr Haines had utilized escorted day leave for the preceding five months without any issue.
The doctors examined Mr Haines for the purpose of preparing the report. He exhibited no formal thought disorder and no overt positive symptoms of psychosis during their review. He presented with partial insight and was agreeable to taking medication as prescribed.
They assessed Mr Haines as having a moderate to high loading of historical risk factors for future violence and a low loading of clinical risk factors. They considered that his insight was partial due to his limited cognitive capacity. He acknowledged he has schizophrenia but did not understand what this meant. He thought that his condition had resolved. He was reported to appreciate the impact of drug use on his risk of violence and saw the value in taking his medication despite not knowing why it was prescribed. The doctors reported that Mr Haines was no longer overtly guarded and had displayed no evident symptoms of psychosis since his arrival at the Macquarie unit. He had no affective, behavioural or cognitive instability or apparent violent ideation. Drs Rourke and Dorney reported no concerns with compliance and considered that this psychosis appeared to have improved and that he had possibly achieved full symptom resolution.
The doctors requested that the Tribunal grant Mr Haines unsupervised day leave to assist the treating team in determining the level of support and supervision which will be necessary for any potential NDIS supported independent living accommodation.
The Attorney General emphasised the question of whether Mr Haines poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. He made the following submissions.
The Attorney General submitted that the type of harm that Mr Haines poses can be best encapsulated by the facts of his index offending. Dr Youssef’s report prepared for the purpose of the hearing before Yehia J included the following:
“In my opinion, Mr Haines does pose a risk of serious harm to others if he ceases to be a forensic patient. According to the risk assessments completed, Mr Haines' risk of recidivism suggests a high degree of outstanding dynamic risk needs …[and] very little [sic, few] protective factors...and static variables that place him in the second highest category for violent recidivism…Mr Haines' history indicates that he is prepared to use violence in the commission of his offences, which are already of a violent nature given the aggravating factor of being armed. Whilst it appears his preference is to use threats to gain compliance, if met with resistance, he has shown the capacity to inflict harm to others, with the potential for this harm to be serious (e.g., stabbing, assault with a hammer, threatening to set victims alight) and has expressed instrumental use of violence. Furthermore, his current offences point to an escalation in his offending behaviour, to be of a more brazen nature, culminating in the armed robbery of a bank, in the morning with multiple customers, with the use of violence.”
It was submitted that Dr Youssef’s observations of Mr Haines’ risk remain relevant and powerful. Mr Haines’ capacity for violence is not an abstract hypothetical notion. Rather, his forensic history demonstrates that he is capable of committing a number of violent offences, some of which involved the use of a weapon, in a relatively short period.
Although no serious physical harm occurred during the course of the robbery offences, it is noteworthy that the weapons used included a hammer and a knife. These items have the capacity to cause serious harm. Mr Haines’ willingness to use such items in the course of the commission of the offences was said to demonstrate the gravity of the risk posed by him should he reoffend.
Furthermore, although the hammer was not used in the commission of the actual robbery, Mr Haines did use it to free himself from the person who restrained him until the police arrived. The use of the hammer on that person caused actual bodily harm, and involved blows to the head. Although the degree of injury suffered was not particularly high, the fact that Mr Haines was willing to use the hammer to hit someone on the head gives rise to an unacceptable risk of causing serious harm.
The Attorney General submitted that the nature of Mr Haines’ risk is that given the high loading of historical factors, it is necessary carefully to monitor and manage the clinical and dynamic risk factors. Mr Haines’ risk of offending must be viewed with the benefit of the index offences and the gravity of the harm that those offences posed, including Mr Haines’ willingness to use a weapon to commit them. The likelihood of Mr Haines reoffending is largely tied to his present management, given his unfortunate lack of insight about his mental health condition.
The Attorney General submitted that Mr Haines poses an unacceptable risk of causing serious harm to others if his status as a forensic patient is not extended.
Mr Haines conceded that the following formal prerequisites for the making of the present application had all been satisfied:
The Attorney General is the Minister administering Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act.
Mr Haines is subject to an existing extension order.
The application was made not more than 6 months before the expiry of that existing extension order.
The application is supported by documentation addressing the matters referred to in s 127(2) and includes a report by a qualified psychiatrist assessing the risk of serious harm to others, and addressing the need for ongoing management.
Mr Haines noted that the question raised by the Attorney General’s application is whether the supporting material would, if proved, justify the making of an extension order: Mental Health and Cognitive Impairment Forensic Provisions Act, ss 126(5), 130(b).
There are therefore two separate questions for determination. First, whether there should be orders for assessment, and secondly whether there should be an interim extension on the assumption that the assessments cannot be completed before the expiry of the existing order. The latter is a distinct decision which enlivens a separate discretion (even though on a similar basis), given the distinction between the word “must” in s 126(5) and the word “may” in the chapeau to s 130.
Mr Haines adopted a neutral position on whether either threshold has been met at this preliminary stage. He submitted, however, that there are nevertheless real questions to be raised about whether the evidence satisfies the tests. In particular, having regard to the statutory criteria, the questions are
Whether the Attorney General’s supporting materials would, if accepted, be sufficient to discharge its burden of establishing the statutory test for the making of an extension order, and
Whether a less restrictive means, such as a community treatment order, could be employed adequately to manage the risk.
Mr Haines emphasised the following matters from the agreed facts referred to earlier.
On 22 October 2024, the Tribunal ordered that Mr Haines be released to “unsupervised overnight leave” for up to seven nights per week. That was in effect an order that Mr Haines would live in the community on an ongoing basis every night of the week. Mr Haines has accordingly been living in supported independent living in the community since 22 October 2024. Those supported independent living arrangements are significantly protective given that they involve staff monitoring Mr Haines constantly, and are an important point of distinction between Mr Haines’ personal circumstances today, and the circumstances which attained at the time he last offended in 2014.
Critically, the supported independent living arrangements are not dependent on Mr Haines being a forensic patient. They are enabled by a NDIS grant and would continue regardless of any orders that may be made in relation to extension on this application.
Accordingly, if the Attorney General’s application were rejected, Mr Haines would still have staff on hand at all times to assist him and to raise any concerns with relevant authorities in the event of a deterioration in his mental health.
On 14 May 2025, or about seven months after his initial release, the Tribunal ordered Mr Haines’ conditional release. In a practical sense, that order simply made the community living arrangement, which had been in place since 22 October 2024 more permanent.
More particularly with respect to the present application, there have been no incidents which point directly to a risk of “serious harm” (as distinct from some harm) in the ten years and nine months since Mr Haines was arrested. The thrust of the Attorney General’s application is that the index offending is sufficient for its purposes. The practical burden of this approach is that it ignores the decade of progress that has been made by Mr Haines, as well as the fundamental and protective developments of the last seven months.
Similarly, the expert evidence relied upon by the Attorney General tends to elide a risk of slipping into mental ill health or the risk of aggression at large, with a risk of “serious harm”. Only satisfaction to a “high degree of probability” of the latter is sufficient to meet the statutory test for an extension.
The effect of the orders made by the Tribunal on 22 October 2024 is that Mr Haines has been living independently in the community for more than eight months. There have been no issues which bear upon the risk of serious harm to others in that time. This is consistent with the Tribunal’s subsequent determination on 14 May 2025 that Mr Haines should be granted conditional release, thereby making more concrete its original orders for (ongoing) overnight leave.
It follows that, to the extent Dr Dayalan qualifies his opinions about risk by reference to a need to provide “ongoing input from specialist forensic mental health services as he adapts to living in the community”, that adaptation under supervision from mental health services has already been in place for some time, and will have continued for nine months by the time Mr Haines’ existing extension order expires. Moreover, it remains unclear why review under a community treatment order would not serve a very similar purpose.
Mr Haines emphasised that no recent assessment provides any relevant insight into the question of whether Mr Haines represents a risk of “serious harm”, as that term has come to be understood, being something more than mere “actual bodily harm” (though not necessarily as serious as “grievous bodily harm”). This is a significant gap in the supporting documentation relied upon by the Attorney General.
No offences appear on Mr Haines’ criminal history between 2008 and 2014. Plainly, this was partly because he was in custody between 7 January 2008 and his release to parole on 4 January 2011. But it remains the case that there is no evidence that the community treatment order was ineffective in achieving compliance with his medical regime. On the contrary, the case notes appear to suggest that it was quite effective in ensuring maintenance with his medical regime.
Importantly during this period there was no offending.
Moreover, Dr Dayalan explicitly observes that a “… CTO may have utility when Mr Haines has transitioned successfully into the community…” which Mr Haines contended is already the case.
Dr Dayalan continues this point by observing that a community treatment order “… would be the next appropriate step when his conditional release order expires.” This is, respectfully, to beg the question: a conditional release order does not have an expiry date per se. Rather, at least one way in which it might “expire” is when the person ceases to be a forensic patient because their limiting term has come to an end, or when the Tribunal no longer considers that the conditions are required (i.e. so-called “unconditional release”).
In other words, the entire point of these proceedings is to determine whether or not conditional release as a forensic patient should be replaced by some other, less restrictive, order (i.e. whether his conditional release order should “expire”).
In all the circumstances, even if the matters alleged in the supporting documentation are proved, the evidence still allows for the conclusion that a community treatment order would be a sufficient – and less restrictive – means by which adequately to manage such risks as still exist.
There is a lacuna in the recent expert evidence about the risk of “serious harm”. There are seemingly some differences amongst the experts in assessing (or at least describing) the risks. There have been significant recent positive developments in Mr Haines’ circumstances, and those factors are protective and ongoing.
For all of these reasons there may be a basis to conclude, even at this preliminary stage, that the evidence provides an insufficient basis for a conclusion to a “high degree of probability” that Mr Haines represents an unacceptable risk of serious harm to others if he ceases to be a forensic patient.
121 Extension orders for forensic patients
(1) The Supreme Court may, on application under Division 2, make an order for the extension of a person's status as a forensic patient.
(2) An order made under this section is an "extension order" .
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.
Note: Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.
123 Minister may apply for extension order
A Minister administering this Act may apply to the Supreme Court for an extension order against a forensic patient.
124 Application for extension order
(1) An application for an extension order may be made in respect of a forensic patient only if the forensic patient is subject to--
(a) a limiting term, or
(b) an existing extension order.
(2) An application in respect of a forensic patient may not be made more than 6 months before--
(a) the end of the forensic patient's limiting term, or
(b) the expiry of the existing extension order,
as appropriate.
125 Requirements with respect to application
An application for an extension order must be supported by documentation--
(a) that addresses each of the matters referred to in section 127(2) (to the extent relevant to the application), and
(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.
126 Pre-hearing procedures
(1) An application under this Division for an extension order must be served on the forensic patient concerned within 2 business days after the application is filed in the Supreme Court or within any further time that the Supreme Court may allow.
(2) The Minister applying for the extension order must notify the Tribunal as soon as practicable after making the application.
(3) Subject to subsections (7)-(9), the Minister applying for the extension order must disclose to the forensic patient the documents, reports and other information that are relevant to the proceedings on the application (whether or not intended to be tendered in evidence)--
(a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and
(b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available.
(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 any further time that the Supreme Court may allow.
(5) If, following the preliminary hearing, the Supreme Court 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 give 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, the Supreme Court 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)…
127 Determination of application for extension orders
(1) The Supreme Court may determine an application under this Division for an extension order--
(a) by making the order, or
(b) by dismissing the application.
(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 section 126(5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(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 Communities and Justice 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 the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),
(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.
128 Term of extension orders
(1) An extension order--
(a) commences when it is made, or when the limiting term or existing extension order to which the forensic patient is subject expires, whichever is the later, and
(b) expires at the end of the period (not exceeding 5 years from the day on which it commences) that is specified in the order.
(2) Nothing in this section prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient.
129 Continuation of orders relating to forensic patients
The making of an extension order or interim extension order in respect of a forensic patient does not affect the operation of any order as to the forensic patient's care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order.
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.
Doing the best I can, taking account of the whole of evidence upon which the Attorney General currently relies, and its application to the statutory questions posed by the present application, the following matters seem to emerge.
In 2022, Dr Youssef considered that Mr Haines posed a serious risk of harm to others if he ceased to be a forensic patient. That opinion, upon which her Honour Yehia J relied, was also supported at that time by other medical specialists. The Attorney General embraces those opinions for present purposes, while acknowledging the need to take account of what has happened since. By the same token, Mr Haines’ opposition to the present application does not seek to cast doubt upon the correctness of the opinions that were available at that time, or her Honour’s decision, and the success of his opposition to the present application is not dependent upon him doing so. Those opinions and her Honour’s conclusions, alike with things such as a consideration of the index offending in 2014 and Mr Haines’ progress over the last three years since 2022 when her Honour made the order extending Mr Haines’ status as a forensic patient until 24 July 2025, are just some of the matters that can be taken into account to inform the decision I am required to make. Quintessentially, despite an understandable absence of any vernacular characterisation of it in the legislation, the present inquiry is concerned to examine and to determine in effect whether anything has changed since then.
As noted earlier, Dr Dayalan considered in June 2022 that Mr Haines’ risk factors would not be adequately managed as an involuntary patient or under a community treatment order. With the assistance of that opinion, her Honour concluded that an extension to his status as a forensic patient was most appropriate for addressing his risk factors and that there were no other less restrictive means available given his current presentation.
Dr Dayalan’s opinion remains the same now. His 29 November 2024 report is in evidence.
Dr Dayalan remains of the view that Mr Haines’ historical and clinical risk factors for violence remain unchanged. Clinically Mr Haines continues to have limited insight into his mental health conditions or how they contribute to his risk of violence. Nor does Mr Haines appreciate the need for any ongoing treatment with psychotropic medication. He is only passively compliant with treatment, although Dr Dayalan noted that there had been some improvement in his presentation since admission to the medium secure unit.
Mr Haines did not, however, present with any current problems with violent ideation or intent. However, Mr Haines continued to exhibit positive psychotic symptoms such as thought disorder and probable delusions. Although Dr Dayalan considered that Mr Haines also exhibited symptoms of schizophrenia, they were not symptoms that had a significant association with violence.
Nor did Mr Haines exhibit any emotional or behavioural instability in the six months preceding the preparation of Dr Dayalan’s report. Dr Dayalan was however cautious about attributing weight to this positive development having regard to the fact that Mr Haines has been an inpatient in a structured and well supported environment.
Dr Dayalan also analysed the effect of Mr Haines’ present supervision, and in particular, the fact that Mr Haines has progressed to a “supported independent living” accommodation model. That said, it was observed that at the time of the assessment, Mr Haines nevertheless had a bed available to him at the Macquarie Unit of Bloomfield Hospital should the transition not be successful.
Dr Dayalan was also of the opinion that the current transition to a less structured and supportive environment could increase Mr Haines’ exposure to stress, and thereby heighten risk given his deficits in frontal lobe functioning.
In taking all these matters into account, Dr Dayalan formulated Mr Haines’ risk as follows:
“Mr Haines has a high loading of historical risk factors for future violence indicating that he poses a risk of violent behaviour in the long term. Escalation in the dynamic risk factors will cause the risk of violence to become more imminent. He has a moderate loading of clinical risk factors and there is an escalation in the risk management variables with his recent transition into the community. This transition is a necessary step in his rehabilitation and appears appropriate given the relative stability in his presentation whilst in the medium secure facility. Nevertheless, this transition is associated with a significant reduction in the level of supervision and support, indicating a risk of escalation of dynamic risk factors. Given his high loading of static/historical risk factors, guarded presentation, gaps in insight and limited coping strategies he will require ongoing input from specialist forensic mental health services as he adapts to living in the community.”
In the circumstances, I make the following orders:
Order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020:
(a) Appointing two qualified psychiatrists to conduct separate examinations of Mr Haines and to furnish reports to the Supreme Court on the results of those examinations by 24 September 2025; and (b) Directing Mr Haines to attend those examinations.
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Attorney General of New South Wales
Haines