By a summons filed on 22 August 2019, the Attorney General for New South Wales ("the plaintiff") seeks a number of orders against the defendant pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"). The summons is supported by three affidavits of Jessica Leigh Murty affirmed on 22 August 2019, 27 August 2019 and 29 August 2019, all of which have been read without objection, along with Exhibit JM-1.
I have had the benefit of receiving the material in support of the orders sought in advance. I have also had the advantage of receiving, in advance, comprehensive written submissions of counsel for the plaintiff, as well as an outline of written submissions from counsel for the defendant. For the purposes of this preliminary hearing, and for those purposes only, counsel for the defendant has not resisted the orders sought, and has not argued against the proposition that it is open to me to be satisfied that the necessary pre-requisites to the making of such orders have been established by the evidence. Specifically, counsel for the defendant did not take any issue with the fact that there had been compliance with the formal requirements of the Act which govern the commencement of these proceedings.
[2]
THE SCHEME OF THE ACT
I turn firstly to the scheme of the Act, and I draw the following summary from the written submissions provided by counsel for the plaintiff.
State of New South Wales v Peckham [2019] NSWSC 1150 | Case summary | Zoe
Section 54A of the Act, which is contained within Part 5, confers a power on this Court to make an order extending a person's status as a forensic patient in accordance with Schedule 1 ("an extension order"). The objects of Part 5, which are set out in s 40, include the protection of the safety of members of the public, and to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or a mental condition.
Clause 1 of Schedule 1 provides that this Court may make an extension order. The test for making that order is set out in cl 2 which is in the following terms:
Part 1 - Extension of status as forensic patient
…
2 FORENSIC PATIENTS IN RESPECT OF WHOM EXTENSION ORDERS MAY BE MADE
(1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:
(a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
Note: Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.
Counsel for the plaintiff has pointed out that aspects of the Act, including its structure, language and regime, have a number of parallels with the Crimes (High Risk Offenders) Act 2006 (NSW), such that assistance may be gained in the approach to be taken in consideration of the making of an extension order, and in the interpretation of certain terms, from authorities decided by reference to that latter legislation.
The test in cl 2(1) requires that I must be satisfied of the requisite matters to a high degree of probability. This constitutes a standard of proof which is higher than the civil standard, but lower than the criminal standard. [1]
The term "unacceptable risk" is not defined in the Act, although cl 2(2) provides that in order to find that a risk of causing serious harm to others is unacceptable, I am not required to determine that such risk is more likely than not. It has been observed that the word "unacceptable" is contextual [2] , and that unacceptability of risk involves a consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate. [3] The term "serious harm" has also received judicial consideration, and has been held to include psychological harm, as well as physical harm. [4]
In the event that I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, then I may make an extension order if I am also satisfied, again to a high degree of probability, that such risk cannot be adequately managed by other less restrictive means.
[3]
THE CIRCUMSTANCES OF THE DEFENDANT AND THE INDEX OFFENDING
The defendant is almost 60 years of age. He has some degree of intellectual disability, and a history of mental illness. Whilst his criminal history might be viewed as limited in one sense, its significance stems from the fact that it includes previous instances of violent behaviour.
The index offending occurred on 17 September 2016. The Crown case statement in relation to that offending, which forms part of the evidence before me, establishes that there was a struggle between the complainant, the defendant and another person, in the course of which the defendant swung two knives. The complainant attempted to grab the defendant's wrists, at which time the defendant made a slashing motion across the complainant's face, cutting his face, causing it to bleed immediately. The complainant sustained lacerations to his abdomen and his hands, as a consequence of the defendant swinging the knives. The shorts that the complainant was wearing were slashed in the area of his right thigh.
The police were called, and the defendant took part in an interview. A forensic analysis was conducted of swabs taken from the knives, and a swab taken from the living room of the premises where the offending occurred. The results of that analysis revealed that the defendant's DNA was located on the bottom handle grip of one of the knives. The complainant's DNA was recovered from a swab of a fingerprint in blood found on the blade of another knife. The defendant's blood was not recovered from either of the knives or from within the property.
[4]
PROCEEDINGS FOLLOWING THE INDEX OFFENDING
On 22 October 2018, his Honour Judge Mahoney SC in the District Court found that the defendant was unfit to be tried, and referred him to the Mental Health Review Tribunal ("the Tribunal"). On 19 December 2018, and again on 14 March 2019, the Tribunal adjourned reviews of the defendant to allow Dr Hearps, a forensic psychiatrist, to complete a fitness assessment and attend a Tribunal hearing. On 4 April 2019, the Tribunal determined that in light of the defendant's intellectual disability and his chronic depressive disorder, he was not fit to be tried, and that on the balance of probabilities he would not become fit within the next twelve months.
That determination of the Tribunal resulted in a special hearing being conducted before Acting Judge Berman SC in the District Court on 8 July 2019. On 9 July 2019, his Honour found that on the limited evidence available, the defendant had committed the offence of reckless wounding causing actual bodily harm. His Honour nominated a limiting term of three years which he backdated to commence on 17 September 2016. He also made an order referring the defendant to the Tribunal, and ordered that he be detained until released by due process of law. In making those orders, his Honour described the offending as serious and unprovoked. He also noted that as a consequence of the offending, the complainant had been left with a degree of permanent scarring.
[5]
THE PRESENT APPLICATION
As previously noted, counsel for the defendant does not take issue with the fact that the preliminary requirements imposed by the Act are satisfied. In particular, the defendant is subject to a limiting term as I have outlined, and the present application has been made not more than six months before the expiration of that limiting term. [5] The evidence before me, to which I will come in more detail in a moment, addresses each of the matters set out in the Act which I am bound to consider. [6] Further the application is accompanied by a report of Dr Furst, psychiatrist, which (inter alia) assesses the defendant's level of risk of causing serious harm to others. [7]
[6]
THE MATTERS TO BE TAKEN INTO ACCOUNT
Clause 7, although not exhaustive, sets out those matters which I must take into account in determining whether or not to make the orders sought, in addition to any other factors which are relevant.
[7]
Cl. 7(2)(c) - The report of Dr Furst
Dr Furst's report is dated 11 August 2019. In terms of the defendant's background, Dr Furst noted [8] that there had been various psychiatric assessments in the past which had reached diagnoses of possible borderline personality disorder, major depression, anxiety, and a mild intellectual disability. Dr Furst noted that those diagnoses were contained in reports of Dr Adams, psychiatrist of 18 April 2018, Dr Martin, psychiatrist, of 22 July 2018, and Ms Louise Tunks and Ms Emily Higgins, psychologists, of 26 November 2018. I should note however, that those reports to which Dr Furst referred do not appear to address the precise question(s) that I am required to determine on this application.
Dr Furst concluded [9] that having regard to the available material, the defendant does not suffer from a major mental illness, and is not currently a mentally ill person as that term is defined under the Mental Health Act 2007 (NSW). However, Dr Furst did conclude [10] that the defendant meets the criteria for the diagnosis of a number of other mental disorders, namely:
1. recurrent major depressive disorder;
2. substance abuse disorder (in terms of alcohol and benzodiazapines);
3. mild intellectual disability; and
4. borderline personality disorder.
In terms of impairment to the defendant's mental functioning, Dr Furst expressed the view [11] that the defendant's primary cognitive impairment is constituted by his intellectual disability, and that recent neuropsychological testing conducted by Ms Tunks assessed the defendant's IQ as falling in the extremely low range which, in Dr Furst's opinion, was consistent with an intellectual disability. He also noted [12] that a neurological assessment had indicated that the defendant suffered from a suspected acquired brain injury which was the result of a previous head injury, and that he suffered a stroke in 2008 which had led to left-sided weakness.
Dr Furst was asked whether, in his opinion, the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient. He answered that question in the affirmative, [13] and explained that his opinion was based upon historical, clinical and risk management factors. The historical factors [14] included a history of problems with violence, relationships, substance misuse, major mental disorder, personality disorder and traumatic experiences. The clinical factors [15] included recent problems with insight, symptoms of mental disorder and instability. The future risk management factors [16] included problems with professional services and plans, the defendant's living situation, the level of the personal support which was available to him, his response to treatment or supervision, and stress or coping.
In his assessment of those matters, Dr Furst noted [17] that although the defendant had engaged with his caseworker from the St Vincent de Paul Society over recent years, and although he had an NDIS support worker whom he expected to see if and when released into the community, there remained a risk that the defendant would, in the event that his care in the community was not mandated by some ongoing order, disengage with services, not follow directions, or abstain from abusing prescription medication.
Dr Furst also pointed out [18] that as matters presently stood, the defendant had no current residential address, having lost his Department of Housing accommodation following his arrest. He also observed [19] that the defendant had a very limited support network, in circumstances where his parents were deceased, and he was estranged from his siblings as well as from his nine children.
In expressing the view that the defendant was at risk of disengaging from the community and related health services, and/or not following their directions, [20] Dr Furst noted, in particular, that the defendant had a history of poor coping skills and emotional instability, that he had a recurrent major depressive disorder, that he relied on prescription medication, and that he had previous tendencies towards engaging in self-harm when under periods of stress.
In Dr Furst's opinion, [21] a continuation of the defendant's status as a forensic patient would provide for adequate supervision through the Tribunal, as well as case management in the community. Significantly, in terms of the availability of other avenues, Dr Furst expressed the view [22] that it would not be open for the defendant to be classified as an involuntary patient under the Mental Health Act 2007 (NSW) because he did not suffer from a major mental illness and was not currently a mentally ill person as defined, all of which meant that classification as an involuntary patient was not an available option. Similarly, Dr Furst concluded [23] that a Community Treatment Order was not an appropriate option because the defendant did not suffer from a major mental illness and was not currently a mentally ill person. Dr Furst also expressed the view [24] that the powers which are available under the Guardianship Act 1987 (NSW) were not sufficient to provide for the defendant's clinical and treatment needs in the community, and that voluntary treatment options had a tendency to be unreliable in cases of people who have clinical profiles and risk management issues similar to those of the defendant.
In all of these circumstances it was Dr Furst's opinion [25] that the least restrictive means available in managing the defendant's condition was the continuation and/or extension of his forensic patient status, as this would offer the defendant the best chance of complying with the management strategies which had been outlined.
[8]
Cl. 7(2)(d) - Other reports
As I have noted, [26] other reports and opinions were referred to by Dr Furst. However as counsel for the plaintiff has pointed out, those reports and opinions are of limited assistance for the simple reason that they do not specifically address the issue before me, but generally addresses issues concerning the defendant's previous fitness for trial.
[9]
Cl. 7(2)(e) - Any decision of the Mental Health Review Tribunal
There is no decision (as yet) of the Mental Health Review Tribunal which assesses the defendant in terms of the risk that he may pose to others.
[10]
Cl. 7(2)(g) - The defendant's compliance with medication
In terms of cl 7(2)(g) there is some evidence [27] that, generally speaking, the defendant has been compliant with the obligations which have been imposed upon him to date, although as counsel for the plaintiff has pointed out there have also been some occasions when the defendant has refused his medication.
[11]
Cl. 7(2)(i) - Any history of violent offending
There is, as I have noted, [28] a history of violent offending. Specifically, and quite apart from the index offence, there is a history of offences of common assault, destruction of property, malicious injury, assaulting police and resisting arrest. There are also other non-violent matters including driving offences, as well as what might be described as offences of dishonesty.
[12]
Cl. 7(2)(a) - The safety of the community
I am satisfied that, in addition to the other matters to which I have referred, the safety of the community warrants the making of the orders which are sought. I base that conclusion primarily upon the opinions of Dr Furst to which I have referred at some length.
[13]
CONCLUSION
The matters to which Dr Furst has referred, and his various assessments and opinions, satisfy me, to a high degree of probability the defendant poses an unacceptable risk of causing serious harm to others.
In terms of the second determination that I must make, namely whether or not the risk can be managed by less restricitve means, there is some evidence that the defendant has had, and would continue to have, support in the form of an NDIS plan and a caseworker, as well as support from the St Vincent de Paul organisation. However, beyond those matters, the support otherwise available to the defendant at the present time is limited. It is also of some significance that at the time of the index offending the defendant was living in public housing and was obtaining some support from the St Vincent de Paul Society. Notwithstanding that, the index offence was committed.
Dr Furst has pointed out that the defendant does not suffer from a major mental illness for the purposes of the Mental Health Act 2007 (NSW). He therefore cannot be classified as an involuntary patient, nor can he be subject to a Community Treatment Order. Further, the evidence of Dr Furst is that the powers under the Guardianship Act 1987 (NSW) are not sufficient to properly address, and provide for, the defendant's need for treatment and supervision in the community.
Bearing in mind those matters I am satisfied to a high degree of probability that there is no identified community based alternative which would be available to manage the defendant's needs. Accordingly, the unacceptable risk which I have found is made out cannot be adequately managed by other less restrictive means.
For all of those reasons I make the following orders:
1. Pursuant to clause 6(5) of schedule 1 to the Mental Health (Forensic Provisions) Act 1990 NSW:
1. the Court appoints two qualified psychiatrists psychologists and/or registered medical practitioners or any combination of such persons to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations by no later than 25 October 2019; and
2. the defendant is directed to attend those examinations.
1. Pursuant to cls 10 and 11(1) of sch 1 to the Act the defendant is subject to an interim extension order commencing from 16 September 2019 for a period of three months.
2. Access to the Court's file in this proceeding is hereby restricted such that access by a non-party to the proceeding is to be permitted only by leave of a judge of the Court and only with prior notice to the parties so as to allow them an opportunity to be heard in respect of an application for access.
3. In the event that there is any difficulty encountered in the execution of order 1 above the parties are each granted liberty to approach my associate on 24 hours' notice to the other to request that the matter be listed before me.
4. The proceedings are listed for hearing on 22 November 2019.
5. The plaintiff is to file and serve written submissions and any additional evidence 14 days prior to the hearing, that is by 8 November 2019.
6. The defendant is to file and serve written submissions and any additional evidence seven days prior to the hearing, that is by 15 November 2019.
7. I note that in relation to the Court appointed experts referred to in order (1), the parties will send a joint letter of instruction and accompanying bundle of documents to those experts on or before 10 September 2019.
[14]
Endnotes
Attorney-General for NSW v Kapeen [2017] NSWSC 685; Attorney-General for NSW v Kapeen [2018] NSWSC 619; Cornwall v Attorney-General of NSW [2007] NSWCA 374.
Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636.
State of New South Wales v Simcock (Final) [2016] NSWSC 1805.
Attorney-General (NSW) v Kereopa [2017] NSWSC 411; Attorney-General (NSW) v Kereopa (No.2) [2017] NSWSC 928.
Cl.4.
Cl.5(a); 7(2).
Cl.5(6).
At p.2.
At p.14.
At p.14.
At p.15.
At p.16.
At p.16.
At p.16-18.
At p.18.
At p.18-19.
At p.18-19.
At p.19.
At p.19.
At p.19.
At p.20.
At p.20.
At p.20.
At p.21.
At p.21.
At [17] above.
See notes as Exh. JM-1 Tab 38.
At [10].
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: 10 September 2019