Minister for Mental Health v Paciocco

History of the proceedings

1. The proceedings that resulted in Mr Paciocco's continuing detention as a forensic patient were brought by the Minister under the Forensic Provisions Act in 2016.
2. In those proceedings the Minister sought an order under s 54A and Sch 1 of that Act that a limiting term of 2 years and 6 months, imposed in the District Court on 8 September 2016 following a special hearing in July 2016, be extended for a period of 3 years from its expiration on 19 October 2016. The limiting term was imposed after a special hearing in which Jeffreys DCJ found, on the limited evidence available, that Mr Paciocco had committed the offences of reckless wounding and assault officer in the execution of duty.
3. Interim extension orders under cl 10 of Sch 1 were made in the proceedings on 18 October 2016 (the day before the limiting term imposed in the District Court expired), and thereafter on 14 November 2016, 9 December 2016 and 15 December 2016. The substantive proceedings were ultimately heard by Campbell J on 15 December 2016.
4. On 16 January 2017 his Honour made a final order extending Mr Paciocco's limiting term for a period of 14 months, commencing on 17 January 2017 and expiring on 16 March 2018. That is, his Honour was not satisfied that the three year extension order sought by the Minister and expiring on 19 October 2019 should be granted. Upon the entering of the order the proceedings before Campbell J were finalised. There was no appeal from that determination.
5. On 2 March 2017, Mr Paciocco was reviewed by the Mental Health Review Tribunal (the Tribunal). At that hearing the Tribunal ordered that he be detained for care, treatment and attention at Long Bay Hospital and that he be further reviewed within a period of three months.
6. On 6 July 2017 he was again reviewed by the Tribunal. No additional orders were made at that time. He remained housed at Long Bay Hospital, with a further Tribunal hearing scheduled for January 2018.
7. On 15 May 2017, the Crown Solicitor received instructions from the Minister to obtain a risk assessment report from an appropriately qualified expert to advise her on the merits of an application to extend Mr Paciocco's status as a forensic patient beyond the expiry of the extension order made by Campbell J.
8. Privilege was maintained in respect of that advice.
9. On 3 July 2017, Mr Loosley advised Mr Paciocco's legal representatives of the consideration the Minister was giving to making an application of that kind. The relevant extract of the letter reads as follows: I have received instructions from the Minister to provide an advice on the possibility of any further application under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 to extend Mr Steven Paciocco's status as a forensic patient. To assist with the preparation of this advice, it is proposed that a risk assessment report should be prepared by a forensic psychiatrist. … … I am also writing to seek Mr Paciocco's consent to undergo an assessment for the purposes of the risk assessment report outlined above.
10. There was nothing in that correspondence to suggest that the Minister was considering anything other than a fresh application for an extension order or, at the very least, there was nothing in the correspondence to suggest to the contrary. Notably, there was nothing to indicate the Minister's intention to seek a variation of the existing order by notice of motion pursuant to cl 12(1).
11. On 9 August 2017, Mr Paciocco's legal representatives confirmed his consent to being interviewed to enable the preparation of a risk assessment report.
12. The following day Mr Loosley sent a letter of instruction to Dr Eagle. Dr Eagle had furnished a risk assessment report for the purpose of the proceedings before Campbell J. Reports from Drs Ellis and Adams (court-appointed experts) and Dr Reznik (Mr Paciocco's treating psychiatrist) were also tendered in those proceedings.
13. I note that although Dr Eagle was expressly invited by Mr Looseley to provide an "updated" risk report to assist with an application to vary the extension order under cl 12 of Sch 1, Mr Paciocco's legal representatives were not advised of the Minister's intention to make that application.
14. To facilitate preparation of the report, Dr Eagle was provided with what was described by Mr Loosley as "updated briefing material" which included various reports from proceedings before the Tribunal, together with clinical and other notes prepared and retained by Justice Health.
15. On 5 September 2017, Dr Eagle furnished a risk assessment report to the Crown Solicitor.
16. On 16 November 2017 Mr Paciocco's legal representatives were advised, for the first time, of the Minister's intention to apply for a variation of the extension order under cl 12 of Sch 1.
17. The notice of motion upon which the Minister moves in these proceedings was filed the following day.
18. At the hearing of the notice of motion, the Minister read Mr Loosley's affidavit to which was exhibited a lever arch volume of material, including reports furnished to the Tribunal, the Tribunal's reasons for determination on successive reviews of Mr Paciocco status as a forensic patient and various medical and other records from both Justice Health and Corrective Services New South Wales. I have not found it necessary to refer to that material in any detail to resolve the preliminary issue.
19. It is convenient to deal first with the order seeking a variation of the order made by Campbell J. If I am satisfied that cl 12(1) does confer a power to vary the length of the extension order to which Mr Paciocco is currently subject, and I am satisfied that to enable that power to be exercised the proceedings heard and determined by Campbell J will need to be reopened, the occasion for the exercise of the power for that purpose would follow as a matter of necessary implication.

Relevant provisions in the Schedule to the Act relating to an application for an extension order

1. Clause 5 of Sch 1 requires an application for an extension order to be supported by documentation that addresses each of the matters referred to in cl 7(2) (to the extent relevant to the application), and which includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner.
2. Clause 6 prescribes certain mandatory pre-hearing procedures that are to be followed upon the making of an application. Relevantly for present purposes, cl 6(5) requires the Court to hold a preliminary hearing within 28 days of the application being filed. At the preliminary hearing, the Court is required to determine whether the matters in the materials provided by the Minister pursuant to cl 5, "would, if proved, justify the making of an extension order". If satisfied of that state of affairs, the Court is obliged to make orders appointing at least two medical experts to examine and provide opinions as to the defendant's mental health. Conversely, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must dismiss the application.
3. Assuming that the Court determines the preliminary hearing favourably to the Minister, cl 7 allows the Court to make an extension order after having regard to the matters specified in cl 7(2). They are as follows: (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 Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary 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.
4. Clause 8(1)(b) allows the Court to specify the term of an extension order. It provides that the term of such an order must not exceed 5 years from the day on which it commences. I note and accept that this also finds expression in cl 12(2).

The Minister's submissions

1. The Minister submitted that she is entitled to invoke the express power in cl 12(1) to vary an extension order, and to do so by a notice of motion in the proceedings in which that order was made despite those proceedings having been heard and determined.
2. The Minister submitted that the ordinary meaning of the word "vary" being "to change or alter, as in … character, substance, degree …" (Macquarie Dictionary), when applied to the language in cl 12(1) provides a specific source of power to vary (or change) an existing extension order.
3. She submitted that when cl 12(1) is read with cl 12(2) (which makes express reference to a variation of the length of an extension order subject only to the total term of the extension order not exceeding 5 years), cl 12(1) must also be construed as a source of power to vary the length of an extension order. The Minister submitted that were it otherwise, cl 12(2) would have no work to do. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 328 at [70] the Court said: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
4. The Minister further submitted that purposive considerations provide additional support for the conclusion that Parliament intended that the variation power in cl 12(1) be available to the Minister when applying to extend the length of an existing extension order. It was submitted by the Minister that its utility is best exemplified in a case such as presents here, where, it was submitted, there is no new medical evidence concerning Mr Paciocco's status as a forensic patient, and therefore no utility in burdening the Court with a fresh application for an extension order, with all the attendant procedural requirements in Part 2 of the Schedule, when an updated report would suffice. The Minister submitted that it was an efficient use of the Court's time, and an efficient use of the Executive's resources, for the Minister to simply obtain a report "updating" Mr Paciocco's situation with a view to satisfying the Court that there has been no relevant change or improvement in his circumstances such as might reduce the risk of him causing serious harm to others if he is not managed by less restrictive means. This, so it was submitted, would allow the Court to be satisfied that the extension order should be extended for a further three years. The Minister's claim that Mr Paciocco's situation is unchanged, or that if unchanged (which is contested) it is likely to remain unchanged for the next three years, was addressed in the submissions of Mr Griffin SC, who appeared for Mr Paciocco, to which I will presently refer.
5. The Minister emphasised that the general power in cl 12(1) to vary an extension order is also available to a forensic patient who may seek to have the term of an order extending their status varied by reducing its length. The Minister submitted that were cl 12(1) not construed as she contended it should be, by parity of reasoning, a forensic patient could not apply to shorten the length of an extension order. This, it was submitted would lead to inconvenient and unintended results where new information might surface during the currency of an extension order which, whilst falling short of supporting an application for revocation of an order under cl 12, might nevertheless support the order remaining in force for a shorter period of time. In those circumstances, were the narrow construction advanced by Mr Griffin accepted (as to which see below), the Minister submitted a defendant would be without any remedy.

Mr Griffin SC's submissions

1. Mr Griffin submitted that cl 12(1) should be construed consistent with the general law principle of finality according to which a judgment regularly entered will not be varied (see DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17) and consistent with the principle of legality which requires that clear words of necessary intendment be used by the Parliament if fundamental rights are to be abridged (see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29). He submitted that a construction of cl 12, informed by those fundamental principles, dictates that the variation power in cl 12(1) be narrowly construed. The Minister submitted that both principles of statutory interpretation must yield to a statute that provides for specific powers to do that which might otherwise operate, or which in fact operates, to undermine common law principles or presumptions. The Minister submitted that cl 12(1) is a clear legislative source of a specific power to vary the length of an extension order so as to allow for the continued detention of a person who has the status of a forensic patient and that carries with it an implied right to reopen the proceedings for that limited purpose.
2. Mr Griffin submitted that a narrow construction of cll 12(1) and (2) is called for when they are read in their legislative context. He drew attention to three alternate means in Sch 1 to the Act according to which the Minister might seek an extension of a limiting period (and the extension of a person's status as a forensic patient), some with the attendant procedural steps set out in paragraphs 26 - 29 above and others involving application of the UCPR. Mr Griffin nominated the Minister's right to appeal under cl 14 of the Schedule against the final extension order (which engages with the principle of finality and r 51 of the UCPR); the express power in cll 3 and 4 which permits the Minister to bring a fresh application during the currency of an existing extension order, albeit within six months of the expiry of that order; and the power under Division 3 of Sch 1 to apply for a new interim order. 3 Minister may apply for extension order A Minister administering this Act may apply to the Supreme Court for an extension order against a forensic patient. 4 Application for extension order (1) An application for an extension order may be made in respect of a forensic patient only if the forensic patient is subject to: (a) a limiting term, or (b) an existing extension order. (2) An application in respect of a forensic patient may not be made more than 6 months before: (a) the end of the forensic patient's limiting term, or (b) the expiry of the existing extension order, as appropriate. 14 Right of appeal (1) An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, or to vary or revoke an extension order. (2) An appeal may be on a question of law, a question of fact or a question of mixed law and fact. (3) An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow. (4) The making of an appeal does not stay the operation of an extension order. (5) If the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the extension order the subject of the appeal continues in force, subject to any order made by the Court of Appeal. (6) Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extension order the subject of the appeal. (7) This clause does not limit any right of appeal that may exist apart from this Schedule.
3. Mr Griffin submitted that by the legislature making express provision in cl 14 for a means by which the Minister might challenge the correctness of an extension order made in substantive proceeding under the Act (including, it must be supposed, where it is contended that the judge erred in refusing to make an order of a length commensurate with what the Minister submitted was an assessed risk of future harm) and, further, by making express provision in cl 4(1)(b) for bringing a fresh application for an extension order, albeit with all of the attendant procedural steps identified in paragraphs 26 - 29 above, the Parliament should be taken to have balanced the need to protect the community from a risk of future harm against a person's fundamental right to liberty absent a sentence of imprisonment imposed under criminal statutes as a punishment for a past criminal wrong.
4. Mr Griffin further submitted that for the Minister to bring the application for a variation of a final order by notice of motion, is contrary to the general principle of propriety in r 6.4(1)(i) of the UCPR: 6.4 Where summons required (cf SCR Part 4, rules 2, 2A and 3) (1) Proceedings of the following kinds must be commenced by summons: … (i) proceedings on an application to the court under any Act, other than: (i) proceedings on an application under the Supreme Court Act 1970, the District Court Act 1973 or the Local Court Act 2007, and (ii) proceedings on an application that may properly be made in existing proceedings, …
5. Mr Griffin submitted that because cl 13 in Sch 1 to the Act expressly provides that where the Schedule is silent on procedure (as it is for an application under cl 12) the applicable law is that which applies in civil proceedings, the inescapable conclusion is that the Minister is obliged to make an application to extend Mr Paciocco's limiting term in conformity with r 6.4(1(i) of the UCPR. Mr Griffin submitted this accords with the fact that proceedings for the detention of forensic patients under the operative sections of the Forensic Provisions Act and Sch 1, authorise a form of preventative detention and that the Parliament should not be taken to have intended that a summary procedure could produce that result. Mr Griffin also questioned the propriety of the Minister in seeking an extension of the order made by Campbell J on 16 January 2017 by way of a notice of motion for a period of three years (which is more than double the length of the original order and longer than the original limiting term) under a clause of the Schedule that is both silent as to the procedures to be applied when that power is sought to be engaged and in circumstances where the application is contested or where the Minister has made no enquiry of a defendant's legal representatives as to whether the application is contested. Mr Griffin informed me in oral submissions that any extension of Mr Paciocco's current extension order is in fact contested. He also submitted that, consistent with his instructions which were, incidentally, supported by another expert's reported views, Mr Paciocco's "situation" was not "unchanged" nor "static", as the Minister contended. That being the case, he submitted any review of Mr Paciocco's status as a forensic patient at this stage in the course of the Court imposed limiting term (as extended) more than justified the invocation of a proper process to address that question, namely, by summons.
6. The presumption that the Parliament does not intend to abrogate fundamental rights to liberty - in this context the fundamental rights of a person not to be preventatively detained unless that occurs in strict accordance with clearly articulated and circumscribed statutory grounds and procedures - is supported, in Mr Griffin's submission, in the passage of the Bill that enacted Sch 1, where, as the Bill was read, reference was made to the New South Wales Law Reform Commission report, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences where, at pp 320-321, those considerations were endorsed as consistent with established principles of domestic and international law.
7. Mr Griffin submitted that it is plain that Sch 1 read as a whole is an operative part of a legislative scheme as it applies to forensic patients in the Forensic Provisions Act which seeks to vindicate these principles, not only by the stringency of the substantive tests in the Act itself for the containment of people with intellectual or cognitive impairments and/or with psychiatric illnesses, but in the robust procedures provided for in the Schedule for the determination of applications to preventively detain such people.

Consideration

1. Although the construction of the power in cll 12(1) and (2) and its intended operation and reach is not without its difficulties, I have resolved to the view that the construction of cl 12(1), as contended for by Mr Griffin, is to be preferred. Although it is difficult to accurately appoint what was in the contemplation of the Parliament in providing for a general power to vary an extension order while providing other specific mechanisms for achieving the same result, including during the currency of an existing order, I am satisfied that the narrow construction of cll 12(1) and (2) that Mr Griffin urges is in accordance with the broader legislative context embodied in the Schedule (itself part of the legislative machinery under the Act). That is, cl 12 provides a summary procedure by which the Minister or a forensic patient might approach the Court during the currency of an extension order to resolve matters that are susceptible to resolution under a general power to "vary" the terms of that order, including a variation by consent that might arise during the "life" of an extension order, and without the necessity to mount a fully blown extension application.
2. I am satisfied that the specific power in cll 1, 3 and 4 of Sch 1 for the Minister to extend the length of an extension order during its currency when that is in contest, or when it is likely to be (the circumstances that obtain in this case), and which require the observation of settled procedures designed to allow for the insights of court-appointed experts to assist in the resolution of that question, is the appropriate source of power for an order of that kind.
3. The parties agreed that Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 is the leading authority on the principle of construction to be applied where two sources of statutory power cover the same subject matter, one in general terms and one in specific terms, such that the general power is read down so as to not undercut the specific power. They did not agree as to its application in this case.
4. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [84], Gummow, Hayne, Crennan and Bell JJ described the principle as follows (footnotes omitted): … As was explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, the relevant principle of construction has been identified by using a number of different terms. These have included whether the two powers are the "same power" or are with respect to the "same matter", or whether the general power encroaches upon the same subject matter exhaustively governed by the special power. But the central question is whether "the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power".
5. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, the provisions in issue were held not to be the same or mutually exclusive powers because, although it had been argued that they had the same practical effect and could operate on the same facts, they did not operate at different levels of generality. Further, they had been enacted at different times to address broadly different problems and legal contexts and, for that reason, they had the potential for different legal and practical outcomes.
6. Mr Griffin submitted the principles that emerge from Nystrom as they apply in this case resolve to the following: 1. The variation clause in cl 12(1) is a general power that may, in the generality of its terms, appear, during the last six months of an existing extension order, to permit application for further extension of a person's status as a forensic patient; 2. Clauses 3 and 4 confirm the same power, however, in terms that specifically address precisely the same circumstances while imposing the observance of procedures that would not apply to an application under cl 12, thereby necessitating the confinement of the general power by reference to the restrictions in the specific power (that is, unlike Nystrom, the clauses operate at different levels of generality and, in their terms, would encompass the exercise of the very same power); 3. Clauses 3, 4, and 12(1) and (2) were passed at the same time, as part of a single coherent legislative scheme to deal with and address a person's continuing status as a forensic patient and with the attendant restrictions on liberty that result from the Court finding that a person has that status (that is, unlike Nystrom, the powers were conferred at the same time, in the same legal context, to address a particular problem).
7. In the result, I am satisfied there is one source of power conferred upon the Minister to apply, in the six months before an existing extension order lapses, for an order to extend the period of a person's designation as a forensic patient and require their detention for that reason, namely the specific power in cll 3 and 4 and that because the general variation power in cl 12 encroaches on that power it should be read down.
8. That finding is reinforced by application of the general law principle in Phillips v Walsh (1990) 20 NSWLR 206 at 210 where in dismissing a post-judgment motion (and following a discussion of finality), McLelland J held that a dispute between the parties after final orders should not be determined by motion where "substantial matters in controversy are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of matters on summary application is inappropriate".
9. The Minister sought, unpersuasively, to distinguish Phillips v Walsh on the basis that the application to extend the length of an extension order is not substantially different from the substantive proceedings in which the original order was made. While the orders per se are the same or similar, it can hardly be said that an extension of Mr Paciocco's status as a forensic patient and his continued (preventative) detention by reason of that fact for a further three years, is not a matter of substance which it can fairly be said is in the interests of justice appropriate to be determined in a summary hearing.

Orders

1. Accordingly, I make the following orders:
2. The notice of motion is dismissed.
3. The plaintiff is to pay the defendant's costs.

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