Attorney General of NSW v McGuire

Supreme Court of NSW|2018-11-20|Before: Button J

Introduction

This matter came before me at 2 pm on Tuesday, 20 November 2018 (the late commencement was in order to meet the convenience of counsel for the defendant). I was informed at the start of the hearing that a decision would be required of me with regard to the diminution of the liberty of a citizen - which was not the subject of his consent in any sense - by 11.59 pm on Wednesday, 21 November 2018.
I do not believe that I should provide such a decision without simultaneously providing reasons for it; that is especially the case if the decision is adverse to the liberty of the citizen. Another reason for declining to provide orders without reasons is that counsel for the moving party indicated that, if I were to refuse to make the orders sought, an appeal would be the subject of prompt consideration.
As well as that, this litigation between the Attorney General of New South Wales (the plaintiff) and Mr Herbert Robert McGuire (the defendant) has been the subject of very many judgments of judges of this Court: see Attorney General of New South Wales v McGuire [2013] NSWSC 1862; Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288; Attorney General of New South Wales v McGuire [2015] NSWSC 152; Attorney General of New South Wales v McGuire [2016] NSWSC 158; Attorney General of New South Wales v McGuire [2017] NSWSC 1072; and Attorney-General of New South Wales v McGuire [2017] NSWSC 1572. The facts of the matter, and its curial history, are amply publicly available by way of those judgments.
In all of those circumstances, I believe that I can, indeed must, be unusually concise.

Summons, and submissions about it

It is in those circumstances that the plaintiff has moved upon a summons filed very recently. The orders sought at this stage are as follows: Interlocutory relief 1. An order pursuant to cl. 6(5) of Sch. 1 of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act"): (a) appointing two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons) to conduct separate examinations of the Defendant 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 the Defendant to attend those examinations. Interim relief 2. An order pursuant to cl. 10 of Sch. 1 of the MHFP Act, that the Defendant be subject to an interim extension order for a period of 28 days, commending upon the expiration of his status as a forensic patient pursuant to the present extension order.
In support of those proposed orders, the plaintiff placed voluminous documentary material before me. It charts the whole history of the matter, but the position of the plaintiff may be summarised as follows.
It is accepted that the defendant has indeed proceeded quite well over the past five years. And it is noteworthy that the level of intervention, therapy, and medication has been gradually reduced over the years. Nevertheless, to end abruptly the conditional liberty of the defendant now would indeed endanger the community. That is simply because the intellectual disability of the defendant is untreatable; he has committed very grave sexual offences in the past; during the recent period of deterioration there was a suggestion of dysfunctional sexual ideation; the life of the defendant in the community without compulsory intervention would in all likelihood be extremely isolated, and physically and emotionally impoverished; and the defendant has made it quite clear that he is not open to receiving help voluntarily.
The plaintiff also submitted that, at this preliminary stage, just as in the case of a preliminary application pursuant to the HRO Act, I am being asked to undertake the task of assessing what a judge of this Court could ultimately regard as appropriate, not what he or she would, or should, or must so regard. It was said that the well-known analogy with the task of a magistrate in committal proceedings is apposite here as well. In short, it was said that the hurdle to be overcome by the plaintiff at this stage is surely a low one, pursuant to clauses 2 and 6(5) of the Schedule to the MHFP Act.
In response, counsel for the defendant did not submit that any of the mechanistic statutory preconditions to the making of the extension order had not been established. But with regard to the fundamental question, she submitted that her client is very much caught in a "Catch-22" or "chicken and egg" situation: the conditional liberty of the defendant is repeatedly extended because of fear of endangerment of the community; but the defendant is incapable of showing that he would not endanger the community if his liberty was unfettered, because his conditional liberty is repeatedly extended.
She also submitted that a number of protective factors are to be seen in the documentary evidence, not least the degree of contact the defendant has with family members; his general compliance with the medication that he has been asked to take; and in particular the absence of sexual offending of any kind since 2006, well over a decade ago.

Determination

Turning to my determination of this preliminary question, I respectfully think that there is force in the submission made on behalf of the defendant that the restrictions on his liberty cannot simply be extended for many decades, perhaps until his death, based upon one incident that occurred well over a decade ago already. One solution, perhaps, is that (as has already occurred), those conditions gradually become less and less onerous; that his medication, to the extent practical, be slowly reduced; and that, eventually, a very light interference with his liberty become no interference at all.
I also accept that this man has generally succeeded since his release in 2013. Having said that, the reasonably recent period during which he became non-compliant to the extent that he was detained again in a psychiatric hospital must be a matter of concern.
Separately, I accept that, at this stage, the test is not an unduly difficult one for the plaintiff to fulfil.
I also think that I can take into account the fact that, for the past five years, judges of this Court have been prepared to make an extension order, in my assessment of whether or not a judge could be prepared to do so again in the future.
Finally, I think that there is force in the submission of the plaintiff that simply to bring the conditional liberty of the defendant to an end now could lead rapidly to isolation, a return to alcohol abuse, an unwillingness or inability on the part of this intellectually disabled man to get help, and a real risk serious offending, not least in a sexual way, thereby endangering the community. And it is not unimportant, I think, that the reasonably recent period of deterioration showed hints of a return to sexual dysfunction.
In the circumstances, I am satisfied that I should make the two interim orders sought by the plaintiff at this stage.

Orders

For the foregoing reasons, I make the following orders: 1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act"): (a) two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons) are appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by no later than 16 January 2019; and (b) the Defendant is directed to attend those examinations. 1. Pursuant to clause 10 of Schedule 1 of the MHFP Act, the Defendant is subject to an interim extension order for a period of 28 days, commending on 22 November 2018 and expiring on 20 December 2018.

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: 23 November 2018

Mental Health (Forensic Provisions) Act 1990(NSW)

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