Attorney General of New South Wales v Ramirez

Interim Orders and Preliminary Hearing

1. Once proceedings are commenced, the Court must within 28 days (or such further time as it may allow) conduct a preliminary hearing into the application: s 126(4). If at that hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must make orders appointing two qualified psychiatrists, two registered psychologists or two registered medical practitioners or a combination thereof, and furnish reports: s 126(5).
2. If the existing extension order to which a forensic patient is subject will expire before proceedings are determined, the Court may make an interim extension order if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: s 130. The provisions describing the Court's task on a preliminary hearing under s 126(5) are in much the same terms as on an application for interim extension orders under s 130(b).
3. The test as to whether the supporting documentation would "if proved" justify the making of an extension order, imposes an elevated standard of proof - lower than the criminal standard but higher than the civil standard. The Court's task is "similar to the requirement for a prima facie case to be made out in committal proceedings". It has been observed that one purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage, with another purpose being to give the Court the benefit of expert opinions of two independent witnesses before making a final decision. Since that question involves consideration of the Court's task on the final hearing of an application, it is also necessary to have regard to the criteria set out in s 127 and the authorities on the Court's task on final hearing.
4. The rules of evidence do not apply in proceedings for interim orders, although "it is obviously desirable, where possible, for the matters relied upon in support of an application for an interim order under the Act to be supported by material provided by those with direct knowledge of the facts concerning the individual offender": see Attorney-General (NSW) v Quinn [2007] NSWSC 456 at [22]. Whether matters alleged "if proved" would justify the making of final orders is to be resolved without considering what evidence might be called by the offender at the final hearing, or any evidence called by the offender at the interim hearing. The Court is not involved in weighing the documentation or predicting the ultimate result.
5. In dealing with interim orders, it is appropriate to give weight to risk-avoidance.

Relevant considerations

1. In determining whether to make an extension order, the Court must consider each of the following matters listed in s 127(2), in addition to any other matter it considers relevant: 1. the safety of the community, 2. the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, 3. the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b), 4. any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, 5. any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, 6. 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, 7. 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), 8. 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, 9. any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

Mr Ramirez' risk

1. Mr Ramirez has been diagnosed with Schizoaffective Disorder, borderline intellectual function and severe substance use disorder that is in remission in a controlled environment. Dr Kerri Eagle, Forensic Psychiatrist, believes that Mr Ramirez poses a risk of causing serious harm to others if he were to cease being a forensic patient and that there are no other less restrictive means that would be capable of managing his risk of causing serious harm to others at this stage.
2. As noted above, Mr Ramirez has an extensive criminal history, but the index offences resulted in his first convictions for sexual offending. The offending occurred on 20 June 2014. The victim was an inpatient at Liverpool District Hospital being treated for alcohol addiction. The accused was being treated for mental health issues at the same facility.
3. A risk assessment report dated 8 March 2022 has been prepared by Dr Eagle, who assessed Mr Ramirez at the forensic hospital on 24 February 2022. Dr Eagle also assessed Mr Ramirez in 2018, as one of the court appointed experts that was ordered to provide the Supreme Court with a report with respect to the Attorney General's first application for an extension order.
4. Dr Eagle asked Mr Ramirez about the index offending. He said it was a "one off thing", that it "really stressed me out" and that "at the time I wasn't thinking straight". When asked about previous comments he had made that the victim consented, he said, "I think so. I wouldn't have done it if I wasn't asked to but she dobbed me in and I took the blame. I just wanted to sit down and talk and she got a little bit preppish". He said "I didn't mean to do it to her. I was really irritated that night" and that "if I could turn back time I never would have done what I done. She wasn't revoked. Never say no. no. no…Otherwise I would have stopped. One thing led to another". If faced with this situation again, Mr Ramirez said he would say "no, no, no" and "do my own thing".
5. In terms of the diagnosis, as already noted, Dr Eagle considered that Mr Ramirez has Schizoaffective Disorder, which is a chronic psychotic illness characterised by relapses in psychosis and episodes of severe mood disturbance, such as mania or depression. She noted that he had displayed recurrent relapses of psychosis that give rise to grandiose and persecutory delusions but that he did not display significant grandiosity on this review, although "he demonstrated some attenuated delusions, for instance relating to being a Commando in the army, that were only apparent on specific inquiry". Dr Eagle said that the features of his mania during relapses of psychosis included increased sexualised behaviours.
6. Mr Ramirez has been treated with multiple antipsychotics and mood stabilising medications but he "continues to display partially treated symptoms of psychotic and mood disturbance at times, such as grandiosity, thought disorder and disinhibited behaviour". Mr Ramirez acknowledged he had a mental illness "but had limited understanding of the nature of the illness or his symptoms" although he accepted he needed to take medication and said he would continue to accept treatment for it.
7. Dr Eagle stated that schizoaffective disorder is a mental illness within the meaning of the Mental Health Act and as such Mr Ramirez would be considered "a mentally ill person" under s 14. She notes that "given the severity and treatment resistance of Mr Ramirez' illness, it is unlikely that he will ever achieve complete resolution of his symptoms". She also notes that despite his lengthy stay at the forensic hospital he "has shown limited improvement in his social and cognitive function", is unlikely to improve in his current environment "and is at risk of a further deterioration in his independent living skills due to the impact of institutionalisation".
8. Dr Eagle also believes that Mr Ramirez remains vulnerable to a relapse in his severe substance disorder.
9. In terms of his borderline intellectual function, Dr Eagle states that it is unlikely that Mr Ramirez' cognitive deficits will improve over time "and may increase particularly in the context of further exacerbations of his mental illness and/or a relapse into substance abuse". She also considers that his offending "appears to be primarily opportunistic and impulsive, rather than planned. However, he has shown the capacity to use intimidation for perceived gain".
10. Ultimately, Dr Eagle concludes that "Mr Ramirez remains at risk of behaving in a sexually inappropriate manner toward others and engaging in reactive aggression in a less restrictive environment". If Mr Ramirez is transferred to a less restrictive environment or discharged into the community without adequate supports or a risk management plan, Dr Eagle believes he would be exposed to de-stabilising factors "that are likely to result in substance use and deterioration of his mental state with a relapse of his illness".
11. Accordingly, Dr Eagle is of the view that given his current presentation and circumstances, Mr Ramirez poses a risk of causing serious harm to others in the future, if he ceases to be a forensic patient.
12. Dr Eagle believes that the extension order ought to be made so that Mr Ramirez can transition gradually out of the forensic hospital, with significant supports and oversight in place to ensure he can tolerate his new environment, remain stable in his mental state and be effectively managed with the available community monitoring and supports.
13. Mr Ramirez' past conduct includes a consistent pattern of criminal offending from 2000 to 2014. Many of these offences were not serious but a number involved physical violence. For example, he assaulted two people on the street in 2000, he attacked a security guard with a knife in 2004 and he punched his pregnant girlfriend in the mouth in 2005. He then sexually assaulted a fellow patient in a mental health unit of a hospital in 2014, which led to the index offences. These were his first and only charges for sexual assault but there are reports that Mr Ramirez has engaged in bestiality, that he has had sexual intercourse with a disabled person, that he followed a woman late at night, that he made sexual comments towards his 13-year-old cousin, and that he touched the genitals of another female patient in a mental health ward while she was sedated.
14. Accordingly, his past conduct indicates that the risk of harm that Mr Ramirez poses to others, if he were released, is the risk of him committing physical harm, sexual harm and psychological harm, mainly against women but also adolescent females.
15. The Attorney General submitted that the likelihood of Mr Ramirez re-offending is moderate to high, based on Dr Eagle's assessment and the assessments of the treating team, if Mr Ramirez were no longer a forensic patient and he was released into the community without supervision. The Attorney General submitted that the gravity of Mr Ramirez re-offending would also be high as it is likely to involve sexual misconduct against vulnerable persons, such as fellow patients in mental health units.

Discernment

1. Having regard to all of these matters, and to the material relied upon by the Attorney General in explication of the matters referred to in s 127 of the Act, I am satisfied to a high degree of probability that Mr Ramirez poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means.

Orders

1. In these circumstances, I make the following orders and directions: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: 1. Order two qualified psychiatrists, registered psychologists or medical practitioners, as agreed by the parties, be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 28 October 2022; and 2. Direct the defendant to attend those examinations. 1. Pursuant to ss 130 and 131 of the Act, the defendant is subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 29 September 2022 for a period of three months. 2. Pursuant to UCPR 33.13, grant the parties general access to the material produced by the NCAT in response to a subpoena issued on 5 September 2022 in Packet 202200135654001-C-1. 3. Direct the plaintiff to file and serve any further evidence on which he intends to rely at the final hearing by 5pm on 28 October 2022. 4. Direct the plaintiff to file and serve any written submissions on which he intends to rely at the final hearing by 5pm on 11 November 2022. 5. Direct the defendant to file and serve any written submissions on which he intends to rely at the final hearing by 5pm on 28 November 2022. 6. Direct the plaintiff to file and serve any evidence and written submissions in reply by 5pm on 1 December 2022. 7. Direct the plaintiff to deliver an agreed folder of working documents to the chambers of the Judge allocated to the final hearing by no later than 4pm on 2 December 2022. 8. List the proceedings for final hearing at 10am on 6 December 2022 with an estimate of one day. 9. Direct each party is to inform the other which experts and/or witnesses are required to attend Court to give evidence at the final hearing by no later than 2 weeks before the final hearing. 10. Note that the defendant and/or his tutor may appear at the final hearing in person or by audio-visual link.

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: 19 September 2022