Attorney General for NSW v Christian by his tutor Thompson

[2017] NSWSC 1663

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General for NSW v Christian by his tutor Thompson [2017] NSWSC 1663
Hearing dates:	30 November 2017
Decision date:	30 November 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Interim extension order made for a period of 28 days. Two qualified experts appointed to examine and provide reports.
Catchwords:	MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 – forensic patient – limiting term due to expire – application for interim extension order – interim orders not opposed – interim orders made CIVIL PROCEDURE – Court Suppression and Non-publication Orders Act 2010 – application by forensic patient for non-publication order – concern for release of medical and personal information – judgment deliberately cast in terms not disclosing such material – adequacy of order restricting access to court file – application refused
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) s 7 Mental Health (Forensic Provisions) Act 1990 (NSW) s 42, Sch 1
Category:	Principal judgment
Parties:	Attorney General for New South Wales (Plaintiff) Lindsay Robert Christian by his tutor Jennifer Thompson (Defendant)
Representation:	Counsel: Ms S Callan with Mr J Edwards (Plaintiff) Ms C Goodhand (Defendant)   Solicitors: NSW Crown Solicitor Legal Aid NSW
File Number(s):	2017/278714

Judgment

1. HIS HONOUR: These are proceedings in which the Attorney General seeks an extension order pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") in respect of a forensic patient, Lindsay Robert Christian (“the defendant”), for a period of two years.

2. The defendant is a forensic patient because he is subject to a limiting term imposed pursuant s 23 of the Act. That term is due to expire on 19 December 2017.

3. Before me today is the preliminary hearing of the application. The Attorney General seeks certain interim orders pending the final hearing of the matter. The defendant seeks an interim non-publication order. I will deal with the applications in turn.

The Attorney General’s application

4. The Attorney General seeks orders pursuant to cl 6(5) of Sch 1 appointing two qualified experts to conduct examinations and furnish reports and directing the defendant to attend those examinations.

5. An order is also sought that the defendant be subject to an interim extension order pursuant to cl 10 of Sch 1 commencing on the expiration of the present limiting term on 19 December 2017 for a period of 28 days.

6. Counsel for the Attorney General read certain affidavits and provided a quantity of documentary material in support of the application. Very detailed and helpful written submissions were provided in which the documentary material is summarised.

7. Counsel for the defendant does not oppose the making of the orders sought at this preliminary hearing, but will oppose the making of an extension order at the final hearing.

8. Notwithstanding the lack of opposition by the defendant to the making of the orders sought by the Attorney General at this preliminary stage, it remains necessary for me to be satisfied that the orders sought are justified. What it means, however, is that I do not believe it is necessary for me to set out in this judgment any summary of the material that the Attorney General relies upon (as is often done in cases of this nature, often at great length). My intention not to do so is also influenced by the concern underlying the application that is made by the defendant.

9. Clause 2 of Sch 1 of the Act provides as follows:

"(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."

10. Sub-clause (5) of cl 6 provides :

"(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 2 registered medical practitioners, or

(iv) any combination of 2 persons referred to in subparagraphs (i)–(iii),

to conduct separate examinations of the forensic patient and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the forensic patient to attend those examinations."

11. Clause 10 makes provision for interim extension orders which is part of what is sought today. It provides:

"The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:

(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order."

12. The various concepts within these provisions have been thoroughly discussed in various judgments of this Court in the past. They are usefully summarised in the written submissions of counsel in the present case. The construction and application of the provisions are well enough known and are uncontroversial.

13. I have reviewed the material relied upon by the Attorney General. I am satisfied that the requirement of both cls 6(5) and 10 that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I am also satisfied that the defendant's present limiting term will expire before the proceedings are finally determined. I will make the orders sought by the Attorney General.

The defendant's application

14. By notice of motion filed in court by leave at today's hearing, the defendant seeks an interim order pursuant to ss 7 and 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) for non-publication of his name or any other material that would identify him in respect of these proceedings until determination of the final hearing. An order is also sought that the defendant's name be anonymised by pseudonym.

15. The grounds for making the non-publication order are asserted to be those in s 8(1):

(a)   the order is necessary to prevent prejudice to the proper administration of justice;

(d)   the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency); and

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

16. The defendant read an affidavit affirmed by his solicitor, Mr Todd Davis, on 24 November 2017 and I have had regard to the material therein, including the two annexures. I have also had regard to Exhibit C in the proceedings.

17. The application is based upon a concern that the documentary material relied upon by the Attorney General and by the defendant (affidavits and their annexures and exhibits) may be publicly linked to the defendant if his identity was to be made known. Such material includes what would otherwise be confidential medical and personal information, including his forensic history. Various adverse consequences that would follow are asserted in counsel for the defendant’s written submissions in support of this application.

18. I am mindful of the requirement in s 6 of the Court Suppression and Non-publication Orders Act that "a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice". I am not satisfied that it is "necessary" to make the orders sought. I have deliberately cast this judgment in terms that do not disclose such material. To the extent that such material is on the Court file, I consider that the defendant's interests are adequately protected by an order made by Fullerton J on 19 September 2017 in the following terms:

"Pending further order, access to the Court's file in respect of this proceeding is hereby restricted such that access by a non-party to the file is only to be permitted 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 the non-party's application for access."

Orders

19. Accordingly, I make the following orders:

1. Pursuant to cl 10 of Sch 1 of the Mental Health (Forensic Provisions Act 1990 (NSW) ("the Act") the defendant is to be subject to an interim extension order commencing on 19 December 2017 for a period of 28 days expiring on 15 January 2018.

2. Pursuant to cl 6(5) of Sch 1 of the Act:

(a)   two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) as agreed by the parties are appointed to conduct separate examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by 31 January 2018; and

(b)   the defendant is directed to attend those examinations.

3.   The defendant's application for an interim non-publication order is refused.

4.   The matter is listed on 12 January 2018 for an application by the Plaintiff to renew the interim extension order set out in Order 1.

5.   Liberty to apply on one day's notice.

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Decision last updated: 04 December 2017