Attorney General for New South Wales v RL (bht Ramjan)

[2024] NSWSC 1042

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for New South Wales v RL (bht Ramjan) [2024] NSWSC 1042

Hearing dates:

20 August 2024

Date of orders:

20 August 2024

Decision date:

20 August 2024

Jurisdiction:

Common Law

Before:

R A Hulme AJ

Decision:

(1) Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed.

(2)   The defendant is directed to attend those examinations.

(3)   The defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the limiting term on 7 October 2024 for a period of three months.

Catchwords:

MENTAL HEALTH – HIGH RISK OFFENDER – preliminary hearing – forensic patient – orders for the appointment of two experts to conduct examinations of defendant and provide reports to Court – order for examination made – interim extension order sought – Court satisfied documentary material, if proved, establishes that the patient would pose an unacceptable risk of causing serious harm to others if he was no longer a forensic patient – risk cannot be adequately managed by other less restrictive means – order made

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Plaintiff)
RL (by his tutor Barbara Ramjan OAM) (Defendant)

Representation:

Counsel:
S Love (Plaintiff)
C Goodhand (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2024/206671

JUDGMENT

1. RL ^[1] is a forensic patient pursuant to s 72(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) because he is a person for whom a limiting term has been nominated after a special hearing and who is detained in a mental health facility.

   1. Yehia J made an order on 18 June 2024 that the defendant’s name is to be suppressed and that he is to be referred to in connection with these proceedings by the pseudonym “RL”.

2. RL was found unfit to be tried in respect of charges of wounding with intent to cause grievous bodily harm and recklessly causing grievous bodily harm. After a special hearing at which King SC DCJ presided, on 8 April 2022 his Honour imposed limiting terms of 18 months and 2 years. They were partially accumulated so that the overall term was one of 2 years, 6 months. The first limiting term expired in October 2023 and the second will expire on 7 October 2024.

3. The Attorney General, who is one of the Ministers responsible for administering the Act, has applied for an order under Part 6 of the Act to extend RL’s status as a forensic patient for a further 4 years.

4. It is an agreed fact that the Court has jurisdiction to grant the relief sought. ^[2]

   2. Joint statement of agreed facts [2]-[3].

5. This is the preliminary hearing of the application. In prayers 1 and 2 of the Summons the plaintiff is seeking orders for the appointment of two experts to conduct examinations of RL and provide reports and directing RL to attend such examinations. ^[3] It is also seeking an interim extension order to commence upon the expiry of the current limiting term on 7 October 2024 for a period of 3 months. ^[4]

   3. s 126(5) of the Act.

   4. ss 130, 131 of the Act.

6. These orders may be made if the Court is satisfied that the matters in the supporting documents would, if proved, justify the making of an extension order. ^[5] This is a task carried out by taking the plaintiff’s case at its highest in the sense of assuming that the matters in the supporting documents are proved.

   5. ss 126(5)), 130 of the Act.

7. To make an extension order, the Court must be satisfied “to a high degree of probability that (a) the forensic patient is an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means”. ^[6]

   6. s 122(1) of the Act.

8. In determining an application for an extension order it is necessary to have regard to the matters set out in s 127(2). The supporting documents provided at this preliminary hearing address those matters except, of course, that there are not yet available any reports from court-appointed experts pursuant to s 126(5).

9. Written submissions for the defendant are neutral (“neither opposes nor consents”) in respect of prayers 1 and 2.

Review of documentation

10. In the judgment of King SC DCJ of 8 April 2022 which culminated in the nomination of the limiting terms, the index offences are not described; his Honour indicated that recourse should be had to his judgment in the judge-alone special hearing. That judgment is not presently available. The facts were sought to be derived in a joint statement of agreed facts from the Crown Case Statement, however that may not reflect the evidence given during the special hearing or the facts found by his Honour. The offences themselves have been referred to previously. It must have been accepted that RL was in possession of a knife and that he stabbed one of the victims as at least that much was referred to in the judgment of 8 April 2022. ^[7]

    7. Court Book pp75, 77-78.

11. King SC DCJ ordered that RL be placed in a forensic medium secure unit with access to multimodal therapeutic interventions such as in a secure forensic psychiatric unit, such order being informed by his Honour’s acceptance of expert evidence to the effect that “in his current state of mental health [RL] represents a clear and present danger to both himself and members of the community”. ^[8]

    8. CB p80.

12. RL was admitted to the Concord Centre for Mental Health on 7 April 2022. On 18 April 2022 because of his conduct there he was transferred to the Forensic Hospital. He was transferred to the Clovelly Ward on 10 August 2023 where he remains. ^[9]

    9. Report of Mental Health Review Tribunal, 14 March 2024, at [13]-[14].

13. RL has a criminal history that includes matters of violence. ^[10]

    10. Joint statement of agreed facts [11]; Bail Report CB p1.

14. There are a number of expert reports in the Court Book but for present purposes it is sufficient to refer to the most recent reports to ascertain RL’s current condition.

15. A report of Dr Rossana Forde and Dr Kirsty MacDonald, Psychiatry Registrar and Consultant Forensic Psychiatrist respectively at the Clovelly Ward of the Forensic Hospital, dated 30 January 2024 (this was before the Mental Health Review Tribunal on 14 March 2024) included that RL has diagnoses of Schizophrenia and Substance Use Disorders. He has a history of acute psychosis characterised by agitation, thought-disorder, paranoid delusion and auditory hallucinations. He has a history of non-compliance with treatment in the community and refusal to accept oral antipsychotic medications. ^[11]

    11. Report of Drs Forde and MacDonald, 30 January 2024, at p9.

16. The report refers to RL having “a high loading of historical (static) risk factors for future violence in the long term”. He also has a “moderate to high loading of dynamic risk factors” although “there has been some reduction in his clinical risk factors in the last 6 months since he was transferred to Clovelly Ward (at the Forensic Hospital). When he “is acutely psychotic due to relapse of his Schizophrenia and/or substance use relapse, he poses a high risk of harm to others”. This has abated in his current placement setting and “his current risk of violence is moderate”. ^[12]

    12. Ibid p10.

17. As to placement, the authors wrote: ^[13]

[RL] currently requires ongoing placement in a high secure environment, with the overall levels of relational, procedural, and physical security only available in the Forensic Hospital, a high secure forensic mental health unit. He requires long-term antipsychotic medication and including treatment with depot antipsychotic medication due to refusal of oral medications. He requires ongoing management around his access to female patients and interactions with female staff. He requires ongoing individual psychological support.

Transfer of [RL] to a less secure hospital at his stage would reduce the likelihood of adherence with his management plan and increase the probability of an exacerbation of his mental illness with resultant potential aggression and risk to others.

13. Ibid p11.

18. The doctors concluded that “the safety of the public is likely to be seriously endangered by [RL’s] release” and “there is no less restrictive placement option currently available to [RL] that is consistent with safe and effective care”. ^[14]

    14. Ibid p12.

19. The opinions and conclusions of Drs Forde and MacDonald are consistent with those in earlier reports:

Report of Dr Fergus Hill and Dr Kirsty MacDonald, 25 August 2023. ^[15]

Report of Dr Anna Farrar, 6 March 2023. ^[16]

Report of Dr Robyn Shiels and Dr Anna Farrar, 13 September 2022. ^[17]

15. CB p257.

16. CB p271.

17. CB p286.

20. The Mental Health Review Tribunal in its six-monthly review on 14 March 2024 accepted the doctors’ assessment. It determined that RL should remain detained at the Forensic Hospital which it considered “appropriate to the safety of [RL] and other persons”. ^[18]

    18. Report of Mental Health Review Tribunal, 14 March 2024, at [30](iii).

21. Dr Sathish Dayalan, forensic psychiatrist, provided a report which addressed the requirements of s 125(b) of the Act. In the “Risk Assessment” section of the report he referred to historical factors which included matters of violence in RL’s criminal history with multiple charges of assault, the most serious being the index offences. He noted that within the confines of a high secure psychiatric unit RL had exhibited violent behaviours and had also made multiple threats of violence including a threat to kill his treating doctor. Dr Dayalan also noted a history of violence towards RL’s intimate partners, often in the context of jealousy. ^[19]

    19. Report of Dr Sathish Dayalan, 11 March 2024, at p8.

22. RL had exhibited patterns of behaviour and functioning that are akin to the traits of individuals with antisocial personality disorder, but such a diagnosis could not be confirmed in light of RL’s psychiatric illness. Dr Dayalan also noted that RL had demonstrated violent behaviour that was not directly influenced by his psychotic symptoms but was “instrumental in nature”. ^[20]

    20. Ibid p19.

23. In terms of clinical factors, Dr Dayalan considered RL had limited insight into his mental illness and the need for ongoing psychiatric treatment. ^[21] He had a long history of emotional dysregulation and poor impulse control suggestive of emotional and behaviour instability. Of particular concern is the report that RL “has continued to make repeated requests to stop his medications. He has not demonstrated a positive response to interventions aimed at improving his insight.” ^[22]

    21. Ibid p19.

    22. Ibid p20.

24. Under the heading “Risk Formulation”, Dr Dayalan wrote: ^[23]

[RL] has a high loading of historical risk factors for violence. These factors are static in nature and indicate an elevated risk of violence in the long-term. [RL] has a moderate loading of clinical/dynamic risk factors in his current setting. As noted earlier, there has been a reduction in some of the dynamic risk variables over his stay at the Forensic Hospital. This can be largely attributable to the structured environment, enforced treatment and supervision by staff with expertise in forensic mental health.

There is not much evidence of any internal shifts in his thinking or attitude that would indicate the reduction in the dynamic risk factors would be sustained without adequate supervision. Therefore, any reduction in the level of monitoring and supervision would need to be graded and done in a supported environment. In his current state, there is a high likelihood of escalation of risk factors if [RL] were to be released into the community.

23. Ibid p21.

25. In responding to the statutory test of whether RL posed a risk of causing serious harm to others if he ceases being a forensic patient, Dr Dayalan provided an affirmative response. ^[24] He also considered that RL cannot be adequately managed by other less restrictive means, stating, “In my opinion, placement in a secure psychiatric facility such as the Forensic Hospital would be the least restrictive form of managing his risk of harm to others”. ^[25]

    24. Ibid p23.

    25. Ibid p24.

Determination

26. The foregoing is sufficient to demonstrate why it must be concluded at this preliminary stage, on the assumption the matters in the supporting documents are proved and considering the neutral position adopted by the defendant, that if RL were to no longer be a forensic patient at the expiration of his limiting term on 7 October 2024 he would likely regress, particularly in terms of substance abuse and complying with the need to take medication to address his mental health issues. That in turn would likely exacerbate to a significant extent the prospect of him committing acts of violence whether prompted by a psychotic episode or in a context of intoxication by substances. Serious harm to members of the community is a real possibility if such circumstances eventuate.

27. In terms of the statutory test for the making of orders at the preliminary hearing stage, the documentary material is capable of establishing that there is a high degree of probability, that RL presents an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and this risk cannot be adequately managed by other less restrictive means. In other words, the matters in the supporting documents would, if proved, justify the making of an extension order

Orders

28. The following orders are made:

1. Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed.

2. The defendant is directed to attend those examinations.

3. The defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the limiting term on 7 October 2024 for a period of three months.

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Endnotes

Decision last updated: 20 August 2024