Attorney General for NSW v DB (Final) - [2023] NSWSC 250

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Attorney General for NSW v DB (Final) [2023] NSWSC 250
Hearing dates: 3 March 2023
Decision date: 21 March 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the status as a forensic patient of the defendant, DB, is extended for a period of two years, commencing from the date of this order.
(2) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
(3) The Court strongly recommends that the Mental Health Review Tribunal and/or the forensic team providing care to the defendant initiate steps for the release of the defendant on a Conditional Release Order at a convenient time not more than 12 months from the date of this order and, within that further 12 months, organise for a regime of the kind recommended by Dr Elliott in the expert report to the Court.

Catchwords:
MENTAL HEALTH – forensic patient – extension of status as forensic patient – unacceptable risk – whether alternate means to manage risk – means not currently available – risk exacerbated by alteration in regime itself – further 12 months of status required to organise community living, then further 12 months to stabilise alteration in regime and accommodation – extension granted for 2 years

Legislation Cited:
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 33, 63, 121, 122(1), 125(b), 126(5), 127, 128

Cases Cited:
R v Engert (1995) 84 A Crim R 67
Stewart v R [2012] NSWCCA 183

Category: Principal judgment
Parties: Attorney General for NSW (Plaintiff)
DB (Defendant)
Representation:
Counsel:
K Curry (Plaintiff)
B Fogarty (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2022/00228148
Publication restriction: Pursuant to the terms of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the juvenile victim’s name or any identifying or potentially identifying information is prohibited.

JUDGMENT

The Attorney for NSW (hereinafter “the Attorney” or “the plaintiff”) filed a Summons on 2 August 2022 in which the Attorney sought a final order, pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (hereinafter “the Act”) that the defendant, DB, be subject to an order for the extension of his status as a forensic patient for a period of 5 years from the date of the order. The defendant opposes the extension.

Procedural and Factual History

Factual History

The defendant is a 56-year-old man of Indigenous descent. He is one of six children who reportedly had a happy childhood…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 250
Decision Date: 21 March 2023

CaseChat Overview and Summary

In this case, the Attorney General for New South Wales sought an extension of the status of DB as a forensic patient, arguing that DB posed an unacceptable risk to public safety. The matter was heard in the Supreme Court of New South Wales. The primary concern was whether DB's risk could be managed through alternate means or whether the risk was so significant that it necessitated continued detention as a forensic patient.

The court examined whether there were any alternative means available to manage the risk posed by DB. It was determined that no such means were currently available. The risk was deemed to be exacerbated by any alteration in the regime itself. The court found that DB required another 12 months of status to organise community living, followed by an additional 12 months to stabilise any changes in the regime and accommodation. Given these findings, the court concluded that an extension of DB's status as a forensic patient for two years was necessary to adequately manage the risk to the public.

The court granted the extension for two years, recognising the significant risk DB posed and the lack of viable alternatives. The decision underscored the necessity of continued monitoring and management of DB's condition to ensure public safety.

Orders