Attorney-General of NSW v Doolan - [2015] NSWSC 1773 - NSWSC 2015 case summary — Zoe

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Attorney-General of NSW v Doolan

[2015] NSWSC 1773

Supreme Court of NSW|2015-11-25|Before: Adamson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-11-25

Before

Adamson J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Solicitors: Lea Armstrong, NSW Crown Solicitor Legal Aid NSW File Number(s): 2015/317034

[2]

Introduction

By summons filed on 28 October 2015 the plaintiff sought orders against the defendant which included the following: "1. An order pursuant to cl. 6(5)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"): a. appointing two qualified psychiatrists to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the result of those examinations by a date to be fixed by the court; and b. directing the defendant to attend those examinations. 2. An order: a. pursuant to cl. 10 of Schedule 1 of the Act, that the defendant be subject to an interim extension order from 12 December 2015 ("the interim extension order"); and b. pursuant to cl. 11(1) of Schedule 1 of the Act, that the interim extension order be for a period of 28 days."
The defendant consented, without admissions, to the making of these orders. The last date on which the orders set out in prayers 1 and 2 of the summons can be made is 12 December 2015 since the defendant is due to be released on that day on the expiry of the limiting term. The defendant is currently a forensic patient at the Forensic Hospital at Long Bay.
The plaintiff also seeks an extension order in respect of the defendant for a period of five years from the date of the order pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Forensic Provisions Act). However, whether it is appropriate to make such an order does not arise for present consideration since the matter is before me for preliminary hearing only at this stage.

[8]

The jurisdiction to make an extension order

Part 5 of the Forensic Provisions Act, which deals with forensic and correctional patients, provides, by s 40, that the objects of the Part include the protection of the safety of members of the public. Section 54A provides for the extension of the status as a forensic patient of a person in accordance with Sch 1. Clause 3 of Sch 1 permits the Minister administering Part 5 of the Act, to apply to this Court for an extension order against a forensic patient.
The term "forensic patient" is defined in s 42 of the Forensic Provisions Act. It includes a person who is found unfit to be tried who is detained. Because the defendant was the subject of a limiting term and was detained in custody pursuant to an order made under s 24, he is a forensic patient.
Section 53 of the Forensic Provisions Act provides: "Classification as involuntary patient (1) The Tribunal may, on a review of the case of a forensic patient detained in a mental health facility, correctional centre or other place following a special hearing, classify the patient as an involuntary patient if the patient would, by virtue of the operation of this Act or any other law, cease to be a forensic patient within 6 months after the date of the review. (2) The Tribunal may order that a patient classified as an involuntary patient under this section be transferred from a correctional centre to a mental health facility. Note. A person classified as an involuntary patient ceases to be a forensic patient, see section 52 (2)."
Section 54 of the Forensic Provisions Act provides: "Release from mental health facility on ceasing to be a forensic patient A person who ceases to be a forensic patient (other than a person classified as an involuntary patient under section 53) must be discharged from the mental health facility in which the person is detained."
The Forensic Provisions Act confers power on this Court to make an extension order if the forensic patient is subject to a limiting term or an existing extension order: cll 1 and 4, Sch 1. The test for making an extension order is set out in cl 2 of Schedule 1, as follows: "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 (including classification as an involuntary patient under section 53). (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."
Clause 7(2) of Sch 1 provides: "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 Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General 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."
On the making of an extension order, the Court is neither required nor permitted to determine whether the order is one for detention of the individual or supervision within the community. It is for the Tribunal to determine these matters. Once an extension order has been made, it may be varied or revoked by the Court, on the application of either of the parties or on the recommendation of the Tribunal, under s 47(2A) of the Forensic Provisions Act: cl 12, Sch 1.

[14]

Relevant authorities

I was referred to decisions of this Court in which the Forensic Provisions Act was considered. Judicial consideration of the Crimes (High Risk Offenders) Act 2006 (NSW) (the High Risk Offenders Act) is of particular relevance where the same, or similar, wording is used: see, for example: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 by Davies J at [12]. Guidance as to the meaning of "high degree of probability" under the Forensic Provisions Act can, accordingly, be obtained from a consideration of its meaning in the High Risk Offenders Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 (a decision under the High Risk Offenders Act), the Court of Appeal (Mason P, Giles and Hodgson JJA) said at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not', so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt ..."
The question whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order" also arises under the High Risk Offenders Act. The Court of Appeal in Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119; 70 NSWLR 448, said of similar wording in the High Risk Offenders Act at [98]: "In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3) [of the High Risk Offenders Act]. That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation." [Emphasis added.]
The phrase "unacceptable risk" is not defined in the Forensic Provisions Act. However, it is a common expression in Bail Acts: see, for example, Div 2 of Part 3, Bail Act 2013 (NSW). It is clear from the express terms of cl 2(1)(a) in the Forensic Provisions Act that the unacceptable risk is that of "causing serious harm to others".

[22]

"Less restrictive" means available to manage the risk posed by the defendant

The plaintiff submitted that, in the context of the present case, means which might be regarded as "less restrictive" than an extension of the defendant's status as a forensic patient comprised either: classification of the defendant as an involuntary patient; or guardianship with an arrangement for secure accommodation supervised by CJP. The relevant statutory provisions for these two options are set out above.
The plaintiff submitted that neither of these means would be sufficient to manage the risk posed by the defendant. No "less restrictive" means were contended for on behalf of the defendant at the interim hearing.
Dr Ellis compared the access to treatment and assistance that would be available to the defendant if an order was made extending his term as a forensic patient, compared with the situation if he were declared an involuntary patient. He concluded: "Remaining on a forensic order moves the oversight from individual clinicians in health services to the automatic oversight of the forensic arm of the Mental Health Review Tribunal. This does guarantee the interest of the Forensic Mental Health Network and its specialist clinicians in the case. There is evidence that specialist forensic mental health care improves offending outcomes."
Dr Parker and Ms Matsuo concluded, in their report of 22 October 2015, that: "As such, from a psychological risk management perspective, I would consider that Mr Doolan requires ongoing management as a Forensic Patient. While he would likely be committed as an involuntary patient, if such an order was not imposed, if his psychosis improved, he could then be released into the community, where he would pose a substantial risk. Ongoing management as a Forensic Patient is the least restrictive care which will provide adequate protection to the community."
Dr Eagle's opinion was set out in a report dated 22 October 2015 which was prepared for the hearing before the Tribunal on 29 October 2015. Dr Eagle said, of present relevance: "Given Mr Doolan's ongoing psychosis, intellectual impairment and ongoing problematic behaviours (such as aggressive sexual behaviours); and his other clinical risk factors (such as instability, poor insight and poor treatment response), he remains a risk of danger in a less restrictive setting. In my opinion, Mr Doolan requires ongoing treatment and management in a high secure forensic setting such as the Forensic Hospital and the Forensic Hospital is the least restrictive reasonably available form of care in the circumstances."
I accept the plaintiff's submission that classifying the defendant as an involuntary patient under the Mental Health Act would not adequately manage the risk he poses of causing serious harm to others. I am satisfied, on the basis of the evidence before me (which has not been challenged), that the risk posed by the defendant cannot adequately be managed by other less restrictive means (including classification as an involuntary patient under s 53).

[24]

Application for an order that the defendant's name be anonymised

Ms Dalumpines, who appeared on behalf of the defendant, asked that the defendant's name be anonymised in this judgment. She did not make an application under the Court (Suppression and Non-Publication Orders) Act 2010 (NSW) (the 2010 Act). Rather, she submitted that I ought anonymise his name because of the provisions of s 162 of the Mental Health Act.
Section 162 is contained in Pt 2 of Chapter 6 of the Mental Health Act. Chapter 6 is entitled "Mental Health Review Tribunal". Part 2 is entitled "Procedures of the Tribunal". Section 4 defines "the Tribunal" as "the Mental Health Review Tribunal". Section 149, which is the first section in Part 2, provides: "149 Application of Part This Part, and any regulations made under this Part, apply to any proceedings of the Tribunal under this or any other Act."
Section 162 provides: "162 Publication of names (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) to whom a matter before the Tribunal relates, or (b) who appears as a witness before the Tribunal in any proceedings, or (c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990, whether before or after the hearing is completed. Maximum penalty: (a) in the case of an individual - 50 penalty units or imprisonment for 12 months, or both, or (b) in the case of a corporation - 100 penalty units. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person."
Ms Wright, who appeared on behalf of the plaintiff, neither supported nor opposed the anonymisation of the defendant's name. She directed me to decisions of this Court where the defendant's name was anonymised but noted that this had occurred in circumstances where the anonymisation was neither opposed nor the subject of full argument. Ms Wright did not contend that s 162 applied in terms to the present case. Ms Dalumpines contended that I had a discretion to anonymise the defendant's name, which I should exercise to save him from future embarrassment as a result of the disclosure of the facts on the basis of which the orders are made. She did not, however, contend that the wording of s 162 made the provision applicable to the present case.
I was referred to Attorney-General for the State of New South Wales v XY [2014] NSWCA 466, in which the Attorney-General appealed to the Court of Appeal pursuant to s 77A(6) of the Forensic Provisions Act, which entitles the Attorney-General to appeal from a determination of the Mental Health Review Tribunal under the Forensic Provisions Act as to the release of a person.
In Attorney-General for the State of New South Wales v XY McColl JA indicated that her Honour would revoke the non-publication order made on 27 October 2014 pursuant to the 2010 Act with respect to the identity of the respondent. Her Honour, without deciding whether an order was otherwise warranted under the 2010 Act, concluded that such an order was not necessary, having regard to s 162 of the Mental Health Act. Of present relevance, her Honour said, at [187]: "It may be accepted that s 162 applies to the proceedings in this court, so that it is appropriate that this judgment not use the respondent's name. However, for this court to make any order to that effect is not merely otiose, but might be thought to affect the Tribunal's power to consent."
The issue was not addressed by the other two judges of the Court of Appeal (Beazley P and Basten JA) in Attorney-General for the State of New South Wales v XY.
Even if McColl JA can be taken as holding (as opposed to merely accepting) that s 162 applied to an appeal to the Court of Appeal from a decision of the Tribunal to release a person, it does not follow that s 162 applies to proceedings in this Court under the Forensic Provisions Act. In my view, the wording of s 149 is sufficient to establish that s 162 was not intended to apply to the present proceedings, since they are neither "proceedings of the Tribunal", nor are they an appeal from a decision of the Tribunal. The Tribunal has no power to make an extension order as sought in the proceedings before this Court. Clause 1 of Sch 1 of the Forensic Provisions Act grants exclusive jurisdiction to this Court to make such an order. Accordingly, in my view, s 162 does not apply to the present proceedings.
In these circumstances, it is not, in my view, necessary to determine whether the word "person" in s 162 includes a court, particularly as I have not heard full argument on the question. I note, however, that the word "person" would not appear to include a court: see Kizon v Palmer (1997) 72 FCR 409 at 430-431 (per Lindgren J, Jenkinson and Kiefel JJ agreeing) and s 21 of the Interpretation Act 1987 (NSW).
Although there are decisions of single judges of this Court where the name of a person in respect of whom an application for an extension order has been made has been anonymised, I do not regard the jurisdiction to make such an order as deriving from s 162, which, in my view, has no application to the present case. Section 4 of the 2010 Act expressly preserves the inherent jurisdiction of this Court, which would include a power to anonymise the names of litigants. However, I do not consider that it is appropriate to exercise this Court's jurisdiction to do so in the present case, particularly where no application has been made under the 2010 Act. The principles of open justice are fundamental and ought not be required to give way without substantial cause.

Attorney-General of NSW v Doolan

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