plaintiff. Court ordered: (1) under cl.6(5) Sch.1 MHFP Act two qualified psychiatrists/registered psychologists/registered medical practitioners appointed to conduct separate examinations and furnish reports...
Key principles
A judge may make an interim extension order under clause 10 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) where, on the material before the Court, the...
Under clause 6(5) of Schedule 1 of the MHFP Act the Court may appoint two qualified psychiatrists, registered psychologists or registered medical practitioners (or any...
In assessing the risk to the community and the appropriateness of extending the deprivation of liberty, the Court may take into account the patient’s prior compliance, recent...
While the Court will recognise the cumulative custodial and supervisory history (including previous extension orders) in assessing whether a judge could be prepared to make an...
Issues before the court
Whether the Court should appoint independent examiners under clause 6(5) Sch.1 MHFP Act to assess the defendant and furnish reports.
Whether an interim extension order for 28 days should be made pursuant to clause 10 Sch.1 MHFP Act.
Plain English Summary
Button J granted the Attorney General's urgent interlocutory application on 21 November 2018. The Court appointed two independent clinicians to examine the defendant and ordered a 28-day interim extension of the defendant's forensic supervision. The judge found the preliminary statutory test for an interim extension was met given the defendant's permanent intellectual disability, history of very serious sexual offending, a recent period of non-compliance and inpatient detention, and the real risk to community safety if conditional liberty ended abruptly. The Court also emphasised caution about indefinite restrictions and ordered further expert assessment to inform any substantive extension.
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Deep Dive
1,678 words · generated 21/06/2026
What happened
This was an urgent interlocutory application heard 20 November 2018 and determined 21 November 2018 by Button J in the Supreme Court of New South Wales. The Attorney General of New South Wales sought two forms of interlocutory relief under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act): (1) orders under clause 6(5) appointing two qualified clinicians to conduct separate examinations of the defendant and to report to the Supreme Court; and (2) an interim extension order under clause 10 for 28 days commencing on the expiry of the defendant's then-current forensic status. The defendant is Herbert Robert McGuire, a man with a permanent intellectual disability who committed very serious sexual offending in April 2006 and has been subject to a succession of extension orders under the MHFP Act since the expiry of his limiting term at the end of 2013 (Background [3]-[11]).
How the Court should weigh the tension between the need to protect the community and the principle against indefinite restriction of liberty based...
Cited legislation
2 cited instruments linked from this judgment.
At the hearing the Court was told a decision had to be given by 11.59 pm the following day because the defendant's liberty could be diminished if the interim extension was to take effect when the present status ended (Introduction [1]). Button J delivered a concise judgment, noting the extensive curial history of the same parties and matter (Introduction [3]). After weighing the material the Court made both orders sought: the appointment of clinicians under cl.6(5) with reports due by 16 January 2019, and a 28-day interim extension order from 22 November 2018 to 20 December 2018 (Orders).
Why the court decided this way
The decision turned on two linked preliminary assessments.
First, whether the appointment of examiners under clause 6(5) was appropriate. Button J accepted the plaintiff’s submission that up-to-date expert psychiatric/psychological assessment was necessary to inform a considered decision about ongoing supervision and risk. The Court therefore appointed two independent clinicians to examine the defendant and report to the Supreme Court by a specified date (Orders).
Second, whether an interim extension order should be made under clause 10. The Court explained the preliminary statutory hurdle is not unduly difficult: at this stage the judge assesses whether a judge could ultimately be prepared to make an extension order (Determination [3], [4]). Applying that standard, Button J took into account the defendant’s permanent intellectual disability (untreatable), the gravity of the 2006 offending, the defendant’s general compliance under conditions since 2013 but a more recent period of non-compliance in 2016 that led to inpatient detention, evidence of some regression in attitudes towards women, the risk that immediate termination of supervision could lead to isolation, alcohol relapse and a real risk of serious offending, and the fact that prior judges of this Court had repeatedly imposed extension orders in this long-running matter (Background [11]-[15]; Determination [2], [4], [5]). Balancing these considerations, the Court concluded the Attorney General had met the preliminary test and therefore made the 28-day interim extension order (Determination [6]; Orders).
The Court also explicitly recognised a countervailing, liberty-protecting concern: that restrictions cannot simply be extended for decades based on a single, distant incident. Button J suggested gradual reduction of conditions over time might be an appropriate long-term approach, though that suggestion did not prevent a short interim extension in this case (Determination [1]).
Before and after state of the law
Before this decision, the law under Schedule 1 of the MHFP Act was established: the Tribunal primarily sets conditions for extensions, and the Supreme Court may, under cl.6(5), appoint clinicians and, under cl.10, make interim extension orders. The Court in this judgment reiterated the operative preliminary standard for interim orders: at the interlocutory stage the judicial task is to assess whether a judge could ultimately be prepared to make an extension order, a relatively low hurdle (Determination [3], [4]). The Court also noted the analogy to preliminary inquiries under the Crimes (High Risk Offenders) Act 2006 (NSW) and to committal-like preliminary assessments, although the statutory schemes differ in who imposes conditions (Summons [3]; Background [9]).
After this decision the authorities remain consistent with existing doctrine: Button J applied the established statutory powers to appoint experts and to make short interim extension orders pending fuller assessment. The judgment emphasises two practical propositions with continuing force: (1) that interim relief can be justified where there is a real, near-term risk that immediate termination of supervision would produce harm; and (2) that courts must be vigilant about indefinite extensions founded solely on old incidents, and should contemplate progressive reduction in intervention where appropriate (Determination [1], [5]).
Key passages with plain-English translation
"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." (Introduction [1])
Plain English: This was urgent. The Court had to decide quickly because the defendant’s liberty could be curtailed without his consent.
"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." (Introduction [2])
Plain English: The judge insists on giving reasons whenever liberty is limited, even under urgent circumstances.
"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." (Determination [1])
Plain English: The judge accepts that it would be inappropriate to keep someone under supervision forever just because of an old offense; there must be periodic reassessment and prospects for reduced conditions.
"I also accept that, at this stage, the test is not an unduly difficult one for the plaintiff to fulfil." (Determination [3])
Plain English: For an interim order, the plaintiff only needs to show that a judge could potentially make a full extension; it is not a high threshold.
"In the circumstances, I am satisfied that I should make the two interim orders sought by the plaintiff at this stage." (Determination [6])
Plain English: After weighing everything, the judge decided to grant the short extension and order the examinations.
What fact patterns trigger this precedent
This judgment is directly relevant where:
A forensic patient subject to extension orders under Schedule 1 MHFP Act faces imminent termination of their forensic status and the Attorney General seeks an interim extension to avoid immediate risk to the community.
There is a mix of mitigating facts (general compliance over an extended conditional release) and aggravating facts (permanent intellectual disability, previous very serious sexual offending, recent non-compliance and inpatient detention, evidence of regression or risk factors like alcohol misuse).
Urgency exists such that the Court must decide whether to impose a short interim order to prevent rapid deterioration or risk before substantive proceedings or updated expert assessments can be completed.
The plaintiff proposes appointment of independent clinicians to inform future substantive decisions and the Court must decide whether such directions under cl.6(5) are appropriate.
In those circumstances, Button J’s reasoning supports making short, protective interim orders where the preliminary test, could a judge ultimately be prepared to extend?, is satisfied.
How later courts have treated it
This decision itself sits in a sequence of many judgments in the same litigation; Button J expressly cited multiple prior McGuire decisions (Introduction [3]). The present judgment follows the pattern of prior judges granting extensions in the history of this particular matter and uses that history as one factor in the preliminary assessment (Determination [4]). It thus functions as both an application of established MHFP principles and a reinforcement that courts should use prior supervisory history, recent clinical deterioration, and the immediacy of risk to justify short interim extensions, while remaining mindful of the need to avoid indefinite deprivation of liberty without progressive reduction.
Practitioners should treat Button J’s concise exposition as reinforcing two practical points that subsequent courts are likely to apply: (1) at an interlocutory stage the threshold for an interim extension is modest; and (2) contemporaneous expert assessment is necessary and appropriate, so the Court can direct examinations under cl.6(5) to inform a later substantive determination.
Still-open questions
The judgment affirms that the preliminary test is not unduly difficult, but it does not elaborate a precise evidentiary standard or checklist. How much and what type of evidence is required in different factual matrices remains fact-specific and an open area for development.
The Court suggested gradual reduction of conditions as a policy response to concerns about indefinite restrictions, but did not prescribe procedural mechanisms or timelines for courts or the Tribunal to do so. How and when conditions should be tapered in long-running supervisory regimes remains unresolved.
The judgment accepted the value of previous extension orders as a factor in assessing whether a judge could be prepared to make another extension. The precise weight to be accorded to historical judicial practice in borderline cases is not detailed, and future appellate guidance could clarify the balance between historical practice and current risk evidence.
The interaction between the MHFP Act and the HRO Act was noted by analogy but not fully fleshed out; courts may need to further clarify comparative approaches where the two regimes overlap in purpose but differ in who sets conditions.
The ethical and procedural safeguards for compelling examinations of intellectually disabled persons were not elaborated beyond directing attendance. Future cases may need to address procedural safeguards, informed consent issues, and appropriate accommodations during compelled clinical examination.
Conclusion: Button J’s decision is a concise application of established MHFP Act powers to appoint clinicians and make a short interim extension. It highlights the practical balancing of liberty and community protection, endorses a modest preliminary standard for interim extensions, and signals judicial concern about indefinite restrictions, pointing to a preference for gradual reduction of conditions where safe and appropriate.
Judgment (6 paragraphs)
[1]
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.
[2]
Background
The defendant was born in November 1972, and accordingly is 46 years of age. He is mildly intellectually disabled (it is well known that in truth that characterisation speaks of quite a severe deficit). It is not clear whether that disability is the result of a cognitive impairment caused by restriction of oxygen to his brain as a child. Whatever the cause, the condition is permanent, and amenable to neither therapy nor medication.
In earlier times, he commenced to intersect with the criminal justice system, albeit in less serious ways, and in ways that did not feature serious violence.
In April 2006, however, in the Illawarra town of Nowra, he entered the home of a woman who was a stranger to him, and sexually assaulted her by having penile/vaginal intercourse with her without her consent. Although all of the offending occurred during one incident, there were in fact three phases of it. Deplorably, the entirety of the sexual assault occurred in the presence of the five year old child of the victim.
The defendant was identified, and he was charged in August 2006 with the three counts that I have described above. In the District Court in August 2008, he was found unfit to stand trial, based upon the joint opinion of two forensic psychiatrists about the effects of his intellectual disability. Thereafter, a special hearing was conducted in the same Court, which concluded with a finding in September 2009 that, on the limited evidence available, the defendant committed the offences. That in turn led on 4 September 2009 to the imposition of a total limiting term of five years, to commence on 1 January 2009 and to expire on 31 December 2013.
In the meantime, whilst seemingly on bail for the sexual offences, in October 2007 the applicant had been charged with inflicting grievous bodily harm on a police officer. I proceed on the assumption that the offence was committed on or shortly before that date.
No details of that offence were placed before me, but it led in June 2009 to the defendant being incarcerated, pursuant to a head sentence of imprisonment for 2 years 6 months with a non-parole period of 1 year 6 months, each to commence on 26 January 2008. His putative date of release must therefore have been 25 July 2009 (I characterise it in that way because of the overlap between the end of the non-parole period and the commencement of the limiting term; in the absence of a printout from the Department of Corrective Services, his custodial history is not entirely clear to me).
Pursuant to the total limiting term of five years, the defendant was detained by way of order of the Mental Health Review Tribunal (the Tribunal) for an extended period. On 20 June 2013, the Tribunal ordered his conditional release, and that was implemented on 26 August 2013.
At the conclusion of the limiting term on 31 December 2013, an extension order was imposed, pursuant to Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act).
Speaking generally, the regime that applies to forensic patients and to be found in that Schedule is broadly analogous to the regime established by the Crimes (High Risk Offenders) Act 2006 (NSW) (the HRO Act). An important difference, however, is that, pursuant to the HRO Act, a judge imposing an interim supervision order or an extended supervision order also sets the conditions; pursuant to the MHFP Act, a judge merely decides whether to impose an extension order or not, and the Tribunal sets the conditions.
[3]
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.
[4]
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.
[5]
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.
[6]
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
Court ordered: (1) under cl.6(5) Sch.1 MHFP Act two qualified psychiatrists/registered psychologists/registered medical practitioners appointed to conduct separate examinations and furnish reports to the Supreme Court by 16 January 2019, and the defendant was directed to attend; (2) under cl.10 Sch.1 MHFP Act an interim extension order for 28 days from 22 November 2018 to 20 December 2018.
Ever since the conditional release of the defendant more than five years ago, he has been subject to extension orders that have been repeatedly imposed, and he therefore remains under the jurisdiction of the Tribunal. The judgments to which I have referred above are all to do with that series of extensions.
Speaking generally, the applicant has proceeded well over that period: he has been prepared to receive therapy from a psychiatrist who specialises in sexual offending; to gain the benefit of some community services; to take anti-libidinal medication; and also to take medication to reduce his craving for alcohol (which has undoubtedly been problematic in general and criminogenic in particular throughout the life of the defendant). Speaking generally again, he has lived quietly, although isolatedly, in the community; maintained his own apartment in a suburb of Sydney; and has enjoyed some contact with family. His interest in scrap metal collection - what I understand to be something of a "self-employed hobby" - is facilitated by the community service providers with whom he has had contact.
The exception to those general propositions is that, for a time in 2016, the defendant became non-compliant with regard to therapy, medication, and contact. As a result, he was involuntarily detained in a mental hospital. On the material before me, it is not clear whether that was because he had breached the conditions of his release imposed by the Tribunal, or because his condition had deteriorated sufficiently for him to be detained, or both, but there is a suggestion that his attitudes and conduct towards women had regressed.
A recent risk assessment report expressed a guarded optimism, an important component of which is the absence of offending since the conditional release of the defendant.
To be weighed against that is another recent report, this one of a distinguished forensic psychiatrist, which sounds a loud note of caution. In particular, it makes the point that it is one thing to say that the defendant has largely succeeded over the past five years when subject to conditional liberty; whether he would do so without those conditions is suggested to be another matter entirely.
The final aspect of the matter that should be dealt with in this précis of background is that, although the defendant has generally been compliant with the conditions imposed upon him by the Tribunal, he has made it clear that, unless compelled to do so, he will neither receive therapy nor take medication.
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.