Dale Haines by his litigation guardian Barbara Ramjan v Attorney General of NSW

What happened

Dale Haines had been a forensic patient since 15 May 2017. The judgment says that this followed a District Court finding that he was unfit to be tried for offences including armed robbery, and the imposition of a limiting term of seven years and seven months, backdated to 25 September 2014 ([1], [4]). His status was initially extended by an interim order in April 2022 and then by a three-year final extension order made on 8 July 2022 ([4]).

Before that final order expired, the Attorney-General applied in the Supreme Court of New South Wales for a second final extension. An interim order kept Haines's status in place while the application proceeded. On 26 September 2025, Coleman J dismissed the Attorney-General's summons seeking the further extension ([5]). The judgment records that the primary judge was not satisfied to the required high degree of probability of either condition in s 122(1) ([11]).

The Attorney-General appealed. The Court of Appeal rejected the Attorney-General's first ground, which challenged the treatment of expert evidence and raised matters concerning both statutory conditions. It accepted the second ground, which concerned only the way the primary judge approached the second condition, about whether the risk could be managed by less restrictive means ([12]–[14]). The Court of Appeal nevertheless allowed the appeal, reasoning that the parties had common ground that the first condition, unacceptable risk, was satisfied ([14]).

Haines appealed to the High Court on two grounds. The High Court chose to address only the second, which the Attorney-General conceded. It accepted the concession, allowed Haines's appeal and set aside the Court of Appeal's orders ([2]–[3], [8], [18]). The substituted orders dismissed the Attorney-General's appeal from the primary judge. They also required Haines to pay the Attorney-General's costs of that appeal; the High Court order separately states that Haines's appeal was allowed with costs ([18]).

Why the court decided this way

The central statutory provision was s 122(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). It says that an extension order may be made “if and only if” the Supreme Court is satisfied “to a high degree of probability” of two matters: first, that the forensic patient poses an unacceptable risk of causing serious harm to others if they cease to be a forensic patient; and, second, that the risk cannot be adequately managed by other less restrictive means ([10]). The High Court expressly stated that both limbs must be satisfied before a final extension order can be made ([11]).

That structure mattered because the primary judge's refusal rested on failure to establish either limb to the statutory standard. The Attorney-General's first ground of appeal addressed both limbs, but the Court of Appeal rejected it. The second ground addressed only limb (b). In Haines's submissions to the Court of Appeal, he had pointed out that the primary judge's findings were expressed in the alternative. On that footing, success on the second ground alone could not resolve the appeal if the separate finding on limb (a) remained in place ([13]).

The Court of Appeal accepted the second ground but treated limb (a) as common ground. The High Court said the parties accepted that this was wrong. Whether there was an unacceptable risk had been substantially disputed before the primary judge, and the primary judge had decided that issue in Haines's favour ([15]). The High Court also examined the oral exchange relied on as a possible basis for the Court of Appeal's view. Counsel's remarks about risk if Haines did not take clozapine were made in the context of the second ground, which did not challenge the primary judge's finding on limb (a) ([16]–[17]). The Court concluded that those remarks could not be treated as abandoning Haines's position or as accepting that the Attorney-General's second ground, by itself, justified allowing the appeal ([17]).

The High Court's disposition also turned on the concession made before it. The Attorney-General accepted that Haines should succeed on his second ground. Haines accepted that, if the concession were accepted, deciding the remaining issues would have no practical utility and would not affect the appeal's disposition ([2]). The Court accepted the concession and made the orders proposed by the parties ([3]). It therefore did not decide the first ground concerning the interim extension order or otherwise determine the remaining appeal issues.

Before and after state of the law

The judgment does not describe a change in the substantive statutory test. It sets out the words of s 122(1) and confirms that an extension requires satisfaction of both paragraphs (a) and (b) to a high degree of probability ([10]–[11]). It does not decide whether the evidence in Haines's case satisfied either limb, nor does it provide a broader test for assessing unacceptable risk or the availability of less restrictive means.

The practical correction made by the High Court was to the appellate reasoning in this case. Before the High Court's orders, the Court of Appeal's order extended Haines's forensic-patient status for two years from 20 November 2025 ([7]). The High Court set that order aside and substituted an order dismissing the Attorney-General's appeal from the primary judge ([18]). Its reasons identify that the Court of Appeal had proceeded on an incorrect premise about what was common ground, and that a ground concerning only limb (b) did not, on the stated circumstances, remove the separate issue concerning limb (a) ([14]–[17]).

The judgment's account is confined to this statutory scheme and this procedural history. It does not state that every finding expressed in the alternative has the same appellate consequence, or establish general rules about when oral concessions bind a party. Its explanation is tied to the record described: the issue had been disputed, the primary judge had ruled for Haines, and the relevant oral exchange occurred in the context of a ground that did not challenge that ruling.

Key passages with plain-English translation

At [10], the Act says an extension order can be made “if and only if” the Court is satisfied to a high degree of probability of both specified matters. In plain English, the statutory gateway has two requirements; the Court cannot make the extension order unless both are established to the stated level of confidence.

At [11], the High Court makes the cumulative nature explicit: “both limbs – (a) and (b) – must be satisfied”. This explains why a successful challenge to only one part of the primary judge's reasoning did not, by itself, establish that an extension order could be made. The judgment does not assess the evidence afresh or say what the factual answer to either limb should have been.

At [15], the Court records that the parties accepted the Court of Appeal was wrong to regard satisfaction of limb (a) as common ground. The significance is that the premise used to bridge the gap between success on limb (b) and allowing the Attorney-General's appeal was not supported by the parties' positions as described in the judgment.

At [17], the Court says counsel “cannot be taken to have abandoned” Haines's position on limb (a). In plain English, the quoted oral exchange did not amount to giving up the argument that the primary judge had correctly found that the first condition was not established. The Court situates counsel's remarks within the context of the second ground, rather than treating them as a concession on the distinct first condition.

At [2]–[3], the Court explains the procedural basis for its decision: the Attorney-General conceded the appeal should succeed, the parties agreed the outstanding issues would have no practical utility if that concession were accepted, and the Court accepted it. This is important to understanding why the reasons do not resolve every issue raised by Haines's notice of appeal.

What fact patterns trigger this precedent

The judgment is most directly relevant to a statutory extension decision where the provision makes multiple conditions cumulative, and the primary decision-maker has rejected the application because more than one condition was not established. Here, s 122(1) required both an unacceptable-risk finding and a finding that the risk could not adequately be managed by less restrictive means ([10]–[11]).

It is also relevant where an appeal ground challenges only one of those conditions, while a separate adverse finding remains untouched. In this case, the Attorney-General's second ground concerned only limb (b); the first ground, which concerned both limbs, was rejected ([12]–[14]). The Court of Appeal's reliance on supposed common ground about limb (a) was material to its decision to allow the appeal.

A further fact pattern involves ambiguity about whether a party has conceded an issue. The High Court considered the parties' submissions, the history of the dispute, the primary judge's findings and the context of counsel's oral remarks ([15]–[17]). The reasons indicate that an exchange on one ground should not, on these facts, be taken as abandonment of a position on a different issue.

The judgment should not be read as deciding every question about the interpretation of concessions, oral advocacy or appellate review. It explains why this particular exchange was insufficient to show abandonment, in the context of the grounds and the record set out in the reasons.

How later courts have treated it

The supplied judgment does not identify any later court decisions applying, distinguishing or otherwise treating this High Court decision. It is dated 9 September 2026, and the text contains no discussion of later treatment. A later-treatment history therefore cannot be established from this source.

The judgment refers to several earlier proceedings in the Haines litigation, including the primary judge's decision, the Court of Appeal decision and a related NSW Court of Appeal report ([1], [5], [14] and footnotes [2]–[7]). Those references give procedural context and identify the decisions from which the matter arose. They are not later treatment of the High Court judgment.

Still-open questions

The High Court did not decide the substantive application of either limb of s 122(1) to Haines. It records that the primary judge was not satisfied to the required standard on either limb, and that the Court of Appeal rejected the Attorney-General's first ground but accepted the second ([11]–[14]). The High Court's disposition followed the concession, not a fresh evaluation of the evidence. The reasons consequently do not resolve what facts would establish an unacceptable risk or when less restrictive means would adequately manage a risk.

The Court also did not determine Haines's first ground concerning the interim extension order made by Kirk JA. It stated that each ground independently supported the orders sought, but that it was convenient to address only the second ground, which the Attorney-General conceded ([8]). The judgment therefore leaves that ground undecided.

Nor does the decision set out a comprehensive test for distinguishing a concession from an evidentiary acknowledgment, or for deciding when oral remarks abandon a party's position. Its conclusion is specific: these remarks, made in the context of the second ground, did not abandon Haines's position concerning limb (a) ([16]–[17]). Any broader application would require attention to the precise procedural context and record.

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