Attorney General of NSW v Randall

Background

1. The defendant was born in February 1960, and is accordingly aged 60 years. It is said that he was born in England and came to Australia with his family when he was three months old, and that his childhood was unremarkable, although he is an undoubtedly unreliable historian. He was expelled from school at the age of 14, and abused cannabis from an early age. It seems that much of his life has been spent in the Southern Highlands of New South Wales. Both of his parents are dead, though he claims to be still in contact with his siblings.
2. Regrettably, the central feature of his life is that this mature man has suffered from schizophrenia (or an illness very much like it) for decades. He has spent many periods in psychiatric hospitals and facilities. The illness manifests itself primarily in a number of persecutory beliefs that are very strongly held by the defendant. Some of them are less extreme: for example that a motorcycle belonging to him had been stolen, though as I discuss shortly that belief has moved him to violence. But some of them are bizarre, and troubling indeed: for example, that his wife and child have been brutally murdered; that another person was murdered, their body cut into small pieces, and the remains flushed down a toilet. He has also expressed beliefs that his body is being interfered with in grotesque ways. He has also spoken of wanting to go into a school and kill children.
3. Sadly, the defendant is devoid of insight into his illness, and cannot be relied upon to take anti-psychotic medication regularly.
4. Management of him in the community has been a serious challenge over many years. On a number of occasions, when efforts have been made to have him take medication, he has produced a knife and a "siege like" situation has developed that has only been able to be resolved by the police after a significant expenditure of time and resources. There has also been, according to the documentary evidence placed before me, an occasion in 2015 when he threatened to pour petrol on a neighbour and set that person alight. That is an especially troubling assertion, bearing in mind one of the convictions that I discuss below. There have been many other occasions on which he has threatened to kill others.
5. On the other hand, the interactions of the defendant with the criminal justice system, although spread over a period of almost 50 years, have not often been of the greatest seriousness. There has also been a very significant gap in his offending, although it came to an end recently.
6. Those intersections commenced in 1973, when he was a boy of 13, by way of property and driving offences. They continued a few years later in the same Court by way of forgery and more dishonesty. Concerningly, when he was aged 17, he possessed a firearm without a license.
7. Prohibited drugs reared their head when he was 18 years of age. They included an opioid and cannabis; what role the ingestion of those substances may have played in causing or exacerbating the mental illness of the defendant is not clear.
8. The defendant committed driving offences in the early 1980s, and had some sort of violent interaction with police in the latter part of that decade. The same thing occurred in 1990, and drugs reappeared in the next couple of years.
9. In 1994 the defendant was fined for an assault. In 1998 a common assault and an assault occasioning actual bodily harm were both dismissed pursuant to s 32 of the MHFPA. He committed further assaults against police and private persons in the late 1990s and the year 2000.
10. In 2003, the defendant damaged property by way of a fire. In a nutshell, he was living in a Housing Commission block. There was an explosion from the main bedroom of his unit, and that bedroom was largely engulfed in flames. The fire spread throughout the unit, causing extensive damage to the hallway and ceiling, as well as to the air vents, which had been burnt out. The front door of the apartment had been barricaded with the frame of a motorbike. Unquestionably, that event presented a significant risk to other persons - some of whom were surely old or infirm or unwell - living in that apartment block.
11. The result of the finding that he was responsible for that fire was that he was imprisoned for a short time, and was seemingly released in late 2003.
12. It is noteworthy that he was not charged with another offence until 23 January 2019, a period of over 15 years.
13. The following summary of the circumstances giving rise to those charges is derived from the reasons for verdict of Judge Baly SC of 2 September 2020, delivered at the conclusion of a special hearing conducted after the defendant had been found unfit to stand trial. In a decision to that effect of 10 February 2020 by the Mental Health Review Tribunal (the Tribunal), it was noted that the defendant had been refusing treatment and was irritable and angry, while continuing to experience delusions.
14. On 21 January 2019, the defendant had been "scheduled" pursuant to the Mental Health Act 2007 (NSW) (the MHA), and had been placed in the facility Waratah House. That was after he had become agitated by the taking of a blood sample to ensure that he was taking his medication whilst living in the community.
15. On 23 January 2019, the defendant stabbed another patient to the face with a metal kitchen knife. The background was as follows. In the dining room of the facility, the defendant confronted the victim about a purported missed opportunity to obtain a motorcycle, and abused him. The defendant foreshadowed stabbing the complainant, who responded forthrightly that it would be the defendant who would suffer physical harm if he tried to do so. The victim walked over to the defendant, and told him that he, the victim, knew nothing of a motorcycle. The defendant lunged towards the victim, holding in his right hand a serrated bread and butter knife made of stainless steel. The victim was stabbed to the mouth, suffered immediate pain, and was bleeding. A little later, when asked whether there had been a fight, the defendant referred to the victim as a "dog", and said "he owes me for a motorbike".
16. The injuries suffered by the victim were in fact reasonably serious: according to the evidence before her Honour, they were a laceration to the lip of full thickness, and a width and depth of 1 cm requiring sutures.
17. The defendant was interviewed by police about the matter on 6 March 2019, and although the interview was excluded from the special hearing by her Honour, the transcript of it was placed before me without objection. In it, the defendant speaks discursively of many of his delusional or persecutory ideas. They included: that someone had been "butchered", and his body buried in a backyard; that somebody had set fire to the "Estate" of the defendant, and done $50,000 worth of damage to it; that the defendant possessed a police uniform; that the defendant had "lost two HQ Holden sedans"; that on 21 January (the day on which he had in fact been detained) the defendant had suffered a fractured skull and a brain tumour; that he had worked for "the Brickworks" for 27 years; and that he had "brought back to life dead women and dead men at Bowral Hospital". He also spoke of an older brother who was almost 12 feet tall.
18. As for the stabbing itself, the defendant spoke of a grievance against the victim based upon the belief that he had stolen a motorcycle of the defendant; made the assertion that he had used a plastic (as opposed to metal) knife; and said that the complainant had been merely "scratched".
19. On 6 March 2019, the defendant was charged with wounding with intent to cause grievous bodily harm (count 1), and, in the alternative, reckless wounding (count 2). Those were the counts that were ultimately before her Honour at the special hearing.
20. On 2 September 2020, Judge Baly found the defendant not guilty of count 1, on the basis of lack of proof beyond reasonable doubt of the necessary intent. With respect to count 2, however, her Honour found that, on the limited evidence available, the offence had been committed by the defendant, a proposition that was not disputed by his then-solicitor. In her reasons for imposing a limiting term, her Honour spoke of what had occurred as a serious assault, involving the use of a weapon, although spontaneous. It was said that the circumstances that arose were unusual, and her Honour felt it "highly unlikely that such circumstances would arise again". Having said that, emphasis was placed upon protection of the community, and the harm suffered by the victim.
21. The defendant was ultimately made subject to a limiting term of 1 year 10 months to commence on 6 March 2019 and to expire on 5 January 2021. It is the resultant status of the defendant as a forensic patient, which will come to an end on the latter date, that the Attorney General seeks to extend.

Application

1. In support of the application, the plaintiff placed before me a report of forensic psychiatrist Dr Kerri Eagle, about whose qualifications, experience, and expertise there can be no doubt. That report may be concisely summarised as follows.
2. The defendant suffers from a treatment resistant schizoaffective disorder. He has experienced persistent positive symptoms of psychosis, which have led to problematic and violent behaviours. He also appears to have substantial cognitive impairments.
3. Dr Eagle noted the report of Dr Willing of 1 September 2020, with regard to the picture of the defendant in custody. The latter doctor spoke of a presentation that was acutely psychotic and featured bizarre delusions. Dr Willing said that the defendant was "irritable, anxious and aggressive" after admission. The treating team, as at 1 September 2020, was of the view that the defendant remained acutely psychotic and needed treatment as an inpatient, and that management in the community would be "clinically inappropriate".
4. Returning to the body of the report of Dr Eagle, the defendant has a number of clinical risk factors that have been associated with violent offending, including: a lack of insight into his mental illness and offending; emotional instability; non-compliance with treatment, including aggressive responses to attempts to achieve compliance; and persistent justifications of the use of violence in certain circumstances, including as retribution for perceived wrongs.
5. Dr Eagle opined that his risk of reoffending is strongly correlated with his severe mental illness. She also expressed the view that he poses a risk of causing serious harm to others if he were to cease to be a forensic patient. Furthermore, she stated that the defendant would pose a significant risk of serious harm to others and would be difficult to manage if he were released directly into the community, because of the factors mentioned by me immediately above. Dr Eagle emphasised the possibility of ineffective and insufficient supports for his mental health in the community; the aggressiveness of the defendant, including with regard to enforcement of compliance; and his underlying lack of insight.
6. However, her opinion was that, if the defendant were able to access assertive and intensive mental health treatment over an extended period of time, which is more likely to be accessible as a forensic patient, he may be successfully released into the community, if the process is undertaken gradually.
7. As for the alternative of the defendant being able to be detained pursuant to the MHA, Dr Eagle noted that, in that setting, there is no oversight by the the Tribunal of treatment or risk management. She was also concerned about the possibility of discharge into the community without appropriate support and monitoring. She expressed concern about management in an in-patient psychiatric facility as an involuntary patient (it is to be recalled that the limiting term was imposed after a violent incident featuring the use of a weapon within a psychiatric facility). Dr Eagle also rejected the possibility of a Community Treatment Order (CTO) or a guardianship order safely managing the defendant in the community, in light of the extensive history of failure, non-compliance, and disruption when that very way of management has been attempted over many years.
8. In short, Dr Eagle expressed the view that an extension of the forensic status of the defendant would provide oversight by the Tribunal to ensure that there is an effective risk management plan to enable his safe transition into the community.
9. As I have said, the defendant, through his tutor, did not oppose the making of the interim orders.

Determination

1. In my opinion, all of the orders sought by the plaintiff at the recent hearing should be made by me, for the following reasons.
2. First, there is no question but that all of the mechanistic requirements for the making of such orders have been established: the defendant is a forensic patient; he is subject to a limiting term; the application has been made within six months of the expiry of that term; the application is supported by documentation that addresses the statutory considerations; it includes a report from a qualified psychiatrist that assesses the question of risk of serious harm to others, and explains the reasons why, in the opinion of its author, that risk cannot be managed adequately by less restrictive means; and, finally, one can confidently predict that the limiting term will expire before the substantive proceedings are able to be concluded.
3. Secondly, I readily accept that the defendant suffers from a chronic and severe mental illness, and has done so for many decades. It is the central feature of his life, and the central factor in this matter, in comparison to which all other issues pale.
4. Thirdly, not only does that illness cause him to possess beliefs divorced from reality, but also they are persecutory ones, upon which he will act; the recent reckless wounding is a good example. Furthermore, some of his delusions are graphic and extremely violent in nature. That is not only troubling in itself. It also gives rise to a concern that extreme beliefs may give rise to extreme responses to them. As I have said, the current limiting term is a result of a response by the defendant to a firmly held belief that, I believe, had no grounding in fact.
5. Fourthly, the defendant is completely lacking in insight into his illness. He is also, on the whole, resistant to treatment, including but not limited to medication, when living in the community. It is noteworthy that the violent act that led to the current limiting term occurred in a mental health facility, where one might expect the behaviour of the defendant to be more constrained than if he were simply living in an unrestricted setting.
6. Fifthly, it is true that his interactions with the criminal justice system are comparatively sparse. But I think that one can infer that police and other authorities may be disinclined to pursue criminal proceedings against obviously disturbed people living in the community, on the basis that they are fruitless from every perspective, unless the allegation is really grave. There may also be a reticence about pursuing complaints against a person such as the defendant by citizens who feel frightened by the prospect of subsequent and recrimination.
7. In other words, the fact that many of the violent and threatening acts said to have been committed by the defendant have not led to criminal charges, let alone convictions, is important. But it needs to be seen in context, and is not determinative. And on the material placed before me, the fact is that if matters are proven at a final hearing, there have been many occasions during which members of the public have indeed been endangered, even if charges were not laid.
8. Sixthly, the fact that the apartment of the defendant was the subject of an explosion and fire (albeit many years ago), seen in combination with a more recent threat to pour petrol on a neighbour and light it, made by a patently disturbed person, is troubling indeed.
9. Seventhly, as can be seen from the transcript of the hearing, I sought the assistance of the parties about the fact that a separate regime exists, pursuant to the MHA, whereby mentally ill persons who present a danger to themselves or members of the community can be detained in any event. And in my opinion, the existence of that regime is certainly relevant to whether or not one would make an order extending the status of a defendant as a forensic patient.
10. But for the reasons given by Adamson J in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 and Beech Jones J in Attorney General for New South Wales v Kapeen [2017] NSWSC 685 - in particular, the relative lack of stringency in the process whereby the detention of a person pursuant to the MHA may come to an end - combined with the analysis of Dr Eagle about the inadequacy of that lesser option, I believe that, in the circumstances of this case, the alternative regime is insufficient.
11. Tenthly and finally, as I have said, the defendant appeared through tutor, solicitor, and counsel. It is significant to my concise determination of this interim question that the application was not opposed.

Conclusion

1. I do not propose to engage mechanistically with the mandatory statutory factors that would need to be considered at a final hearing, in accordance with cl 7(2) of the Schedule. That is because I believe that my reasons above have, albeit briefly, referred to all of them.
2. In short, in my opinion the matters alleged in the supporting documentation relied upon by the plaintiff would, if proved, justify the making of an extension order. That is because I believe that, if they are proved, a judge of this Court could well be satisfied, to a high degree of probability, not only that the defendant poses an unacceptable risk of causing serious harm to others if his status as a forensic patient comes to an end, but also that that risk cannot be adequately managed by other, less restrictive means.

Orders

1. I make the following orders: 1. By way of interlocutory relief, an order pursuant to s 54A of and cl 6(5) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1900 ("the Act"): 1. Appointing two qualified psychiatrists, registered psychologists and/or registered medical practitioners (or any combination of two 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 2. Directing the Defendant to attend those examinations. 1. By way of interim relief, an order pursuant to s 54A of and cls 10 and 11 of Schedule 1 to the Act that the Defendant be subject to an order extending his status as a forensic patient for a period of three months from the first moment of 5 January 2021.
2. I have already made the following order: 1. By way of ancillary relief, an order restricting access to the Court's file such that access not be granted to a non-party to the proceedings without the prior leave of a judge of the Court, and with prior notice provided to the parties to allow them an opportunity to be heard in respect of the application for access.

Amendments 16 December 2020 - Cover sheet: Amended representation of Counsel for the Plaintiff. 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: 16 December 2020