Attorney General for NSW v Vakapora (BHT Dr Katherine Johnson) (Preliminary)

[2025] NSWSC 187

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Attorney General for NSW v Vakapora (BHT Dr Katherine Johnson) (Preliminary) [2025] NSWSC 187

Hearing dates:

11 March 2025

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Pursuant to section 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act:

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

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

(2)   The defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the existing extension order on 26 April 2025 for a period of three months.

Catchwords:

MENTAL HEALTH – forensic patient – extension of status as a forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – where defendant does not oppose making of order – orders for examination made – interim extension order made

Legislation Cited:

Evidence Act 1995 (NSW), s 191

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 72, 121, 122, 123 124, 125, 126, 127, 128, 130, 131

Cases Cited:

Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200

Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Tutaua Vakapora (Defendant)

Representation:

Counsel:
E Lovell-Jones (Plaintiff)
S Talbert (Defendant)

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

File Number(s):

2024 / 00430172

JUDGMENT - Ex Tempore - Revised

Introduction

1. By a summons filed on 19 November 2024, the Attorney General for New South Wales, the plaintiff, seeks final, interlocutory, interim and ancillary orders against Tutaua Vakapora, the defendant, in relation to extending his status as a forensic patient pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the MHCIFP Act). Dr Katherine Johnson has consented to act as the defendant’s tutor in these proceedings.

2. The defendant’s status as a forensic patient arises originally from: a finding by the Campbelltown District Court on 25 June 2018 that the defendant was unfit to be tried for offences of recklessly causing grievous bodily harm and intimidation with intent to cause fear of physical harm; the verdict at the special hearing on 4 November 2018 that on the limited evidence available the defendant committed the offences charged; and, the limiting terms imposed in respect of those offences which expired on 27 January 2021.

3. The defendant’s status as a forensic patient was extended by orders made by Davies J on 9 December 2020 (see Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701) and by Ierace J on 10 March 2021 (see Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200). If the defendant’s status as a forensic patient is not extended again, he will cease to be a forensic patient on 26 April 2025.

The summons

4. The final order sought, in prayer 3 of the summons, is that pursuant to ss 121, 127(1)(a) and 128 of the MHCIFP Act the defendant’s status as a forensic patient be extended for a further period of three years from the date of the order, or for a length to be determined following consideration of any court appointed expert reports.

5. The plaintiff also seeks interlocutory and interim orders in the summons as follows:

“Interlocutory Relief

1. An order pursuant to section 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (‘the Act’):

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

b. Directing the Defendant to attend those examinations.

Interim Relief

2. An order pursuant to ss 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 26 April 2025, for a period of three months thereafter.

…

6. The ancillary relief sought in prayer 4 has already been granted.

7. This hearing concerns the interlocutory and interim orders sought in prayers 1 and 2.

Statutory scheme

8. Under s 72(1)(b) of the MHCIFP Act, a “forensic patient” includes a person:

1. for whom a limiting term has been nominated after a special hearing;

2. who is subsequently subject to an extension order; and

3. who is detained in a mental health facility, correctional centre, detention centre or other place.

9. There is no dispute that the defendant is a forensic patient within s 72(1)(b) of the MHCIFP Act and is the subject of an existing extension order, within s 124(1)(b).

10. The court’s power to make orders in relation to the extension of a person’s status as a forensic patient is governed by Pt 6 of the MHCIFP Act, ss 121-144. The most pertinent provisions for the purposes of the present application are as follows.

11. Section 121 empowers the Court to make an order for the extension of a person’s status as a forensic patient. Such an order can be made, if and only if, the Court is satisfied, to a high degree of probability, that the forensic patient poses an unacceptable risk of causing harm to others if the patient ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means: s 122(1)(a) and (b).

12. The formal requirements and prerequisites for making an application for an extension of a person’s status as a forensic patient are set out in ss 123-126. There is no dispute in this case that these requirement and prerequisites have been met and, having regard to all the material before the Court, I am satisfied that this is so. Consequently, it is not necessary to deal with those matters in any detail in this judgment.

13. Under s 126(5), if, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must make orders:

1. appointing two qualified psychiatrists or two registered psychologists or two registered medical practitioners or any combination of two such persons to conduct separate examinations of the forensic patient and provide reports to the Court: and

2. directing the forensic patient to attend those examinations.

14. Under s 127, in determining whether to make an extension order or to dismiss an application, the Court must have regard, where relevant, to the non-exclusive list of matters in s 127(2)(a)-(i).

15. If a forensic patient’s status as such is extended, the Court is required to notify the Mental Health Review Tribunal (MHRT): s 127(3).

16. An extension order may be made for a maximum of five years under s 128(1)(b). Section 128(2) provides that nothing in that section prevents the Court from making a second or subsequent extension order against the same forensic patient, as is sought in the present case.

17. Under s 130, the 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.”

18. It can be noted that the test in s 130(b) in relation to whether an interim extension order may be made is the same as the test in s 126(5) in relation to whether examination orders must be made. Accordingly, those two issues can be considered together.

19. Finally, an interim extension order or orders may be made for a total period of up to three months: s 131(2).

20. I turn now to consider the two issues in s 130(a) and (b).

First, will the existing extension order expire before the proceedings are determined?

21. There is no dispute that the defendant’s existing extension order which is due to expire on 26 April 2025 will expire before the present proceedings are determined. I accept that this is so, especially given the time required to obtain relevant reports from psychiatrists and psychologists, to prepare for and obtain a date for a final hearing and for the Court to hear the matter and deliver judgment. Accordingly, the first requirement is satisfied.

Secondly, do the matters alleged in the supporting documentation, if proved, justify the making of an extension order?

22. The material before me in this matter for the purposes of considering the application for interlocutory and interim relief is comprised of the three affidavits of Ayesha Bhalla, affirmed on 18 November 2024, 31 January 2025 and 28 February 2025, together with the exhibits and annexures to those affidavits. This constitutes the “supporting documentation” referred to in ss 126(5) and 130(b) of the MHCIFP Act.

23. Under those provisions, the Court is required, in effect, to assume that the matters alleged in the supporting documentation have been proved, as the basis for considering whether making an extension order would be justified. In light of s 122 of the MHCIFP Act, the making of an extension order would be justified where the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of causing harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means.

24. The defendant’s position is that, considering the matters alleged in the supporting documentation and referred to in the plaintiff’s submissions, the application is not unmeritorious and the defendant:

1. does not make any submission against the appointment of two experts to assess the defendant under s 126(5); and

2. does not oppose the making of an interim extension order under s 130.

25. The defendant expressly notes, however, that these concessions are limited “to the nature of the proceeding as a preliminary hearing” and he reserves his right to oppose the order for final relief at any final hearing.

26. The plaintiff and the defendant have also agreed facts pursuant to par 26(1) of Supreme Court Practice Note SC CL 12 and s 191 of the Evidence Act 1995 (NSW) for the purpose of these proceedings (the Agreed Statement). Given that Agreed Statement and the defendant’s position, these reasons are shorter than might otherwise be the case. Nonetheless, the Court is still required to be satisfied that, on the material before it, it is appropriate to make the interlocutory and interim orders sought.

The defendant’s background and other relevant material

27. The defendant is a 34-year-old man who is currently an involuntary patient at the Dee Why unit of the Forensic Hospital.

28. The defendant’s background and circumstances as well as information concerning his criminal history, his mental health history and diagnoses, the index offending and the views of the court that imposed the limiting terms have all been summarised more than adequately in Ierace J’s 2021 judgment concerning the first extension of the defendant’s status as a forensic patient, which has been referred to already. In addition, some of this material and more recent developments are set out in the parties’ Agreed Statement. This material is in substance a summary of the relevant allegations in the supporting documentation in the present case and I have taken all that material into account. I shall not repeat here what is recorded in Ierace J’s published judgment, Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200, but that earlier judgment is intended to be read in conjunction with this judgment.

29. In relation to Ierace J’s consideration of the factors under s 127(2), I agree with and respectfully adopt what his Honour has said. That covers in essence the situation up to 2021. In this judgment, I focus on more recent events and assessments of relevant matters under s 127(2).

Section 127(2) matters

30. In the defendant’s case, the allegations in the supporting documentation concerning his criminal and mental health histories together with his most recent assessments, to which I shall refer in more detail shortly, support, in my view, the conclusion that the safety of the community would best be served by his continued status as a forensic patient.

31. There are presently no reports from persons appointed under s 126(5) in these proceedings. As to previous such reports obtained when the previous extension application was made, these were considered by Ierace J. I have taken into account those reports of Dr Dayalan and Dr Singh, which provided an appropriate foundation for the extension of the defendant’s status as a forensic patient in 2021.

32. The report of Dr Amanda White, forensic psychologist and clinical neuropsychologist, dated 6 September 2024 was provided under s 125(b) of the MHCIFP Act. Dr White saw the defendant on 15 August 2024 over a period of 3 and a half hours approximately. She was of the view that the defendant had an established diagnosis of chronic treatment resistant schizophrenia and that, while symptoms may continue to be attenuated with optimal treatment, at least some symptoms were likely to remain lifelong. She was also of the view that he met the criteria for substance use disorders, specifically alcohol and cannabis, amphetamine and tobacco, in sustained remission in a controlled environment. These substance use disorders were considered chronic and likely to be lifelong and would fluctuate in and out of remission based on accessibility and external controls such as forensic patient orders. As to his cognition, Dr White’s opinion was that he would likely meet criteria for a Mild Intellectual Disability.

33. Dr White opined:

“[The defendant] has a treatment-resistant psychotic illness and he has been unwell for well over a decade with no sustained period of being symptom-free since his first admission in 2011, in the context of limited structured and intensive support. He has been at the Forensic Hospital for the past four years and has shown improvement in his mental condition and decreasing aggressive and irritable behaviour and an extended period of medication compliance within a highly controlled setting. Despite this, he continues to present with active psychosis psychotic symptoms as well as impaired cognition, judgment and insight, which are in my view critical to his ongoing care and necessitate the need for a high level of highly structured and regimented therapeutic support as well as external monitoring, supervision and enforcement of his treatment regime to optimise his mental health and functioning as well as to reduce the risk of causing serious harm to himself, or more likely, to others. …

…

Overall, results from the current assessment indicate that [the defendant] has a high number of historical risk factors, and moderate number of clinical and risk management factors, which are likely to be chronic and require significant support. Without same, it is expected that his risk profile would significantly increase and his previous behaviour suggests he would be at risk of harm to others, as well as possibly himself.”

34. After considering treatment as an involuntary patient under the Mental Health Act, treatment under a Community Treatment Order and the defendant being managed under a guardianship order, Dr White was of the view that ongoing detention at the Forensic Hospital with high level of supports as a forensic patient was the least restrictive form of management of the defendant’s risk of harm to others that was appropriate.

35. A further report was provided by Dr Kang and Prof Basson dated 20 February 2024. On that day, the defendant was assessed by the Medium Secure Assessment Panel and in the report of Dr Kang and Prof Basson it was noted that the defendant appeared to have impaired insight as well as functional impairment and was vulnerable to substance use in a less restrictive environment than the Forensic Hospital. It was concluded that, until there was clarity around his immigration and visa status and he obtained access to the NDIS, the defendant would not be suitable for transfer to a Medium Secure Unit.

36. As to the decisions of the MHRT referred to in s 127(2)(e), the defendant was most recently reviewed by the Tribunal at a hearing on 5 December 2024 at which the current orders that the defendant be detained at the Forensic Hospital were continued. The Tribunal accepted the evidence of Dr Saul Bert, consultant psychiatrist, set out in the report signed by him and by Dr Peter Peng, psychiatric registrar, and dated 27 November 2024.

37. In particular, the Tribunal noted that the report indicated that the defendant’s mental state had continued to improve gradually, that he had engaged well with the treating team and that there were no adverse incidents that had been recently reported. Dr Bert confirmed the defendant’s diagnosis of schizophrenia and substance use disorder (in remission) and possible intellectual disability.

38. Dr Bert’s report indicated that the defendant had a high loading of historical risk factors and a moderate loading of dynamic risk factors, including poor insight, evidence of cognitive instability in partial treatment response. It was noted, however, that this had improved since the last review. As to future risk factors, the report indicated that the defendant had a moderate loading including likely future problems with professional service plans, personal support and stress and coping issues. It was said to be of particular relevance that the defendant was not eligible for the NDIS as he was not an Australian citizen and he would likely require high levels of support when discharged into the community.

39. The Tribunal’s reasons expressly recorded, however, that notwithstanding the positive developments in the defendant’s case:

“Dr Bert expressed the opinion, that if released, [the defendant] would be a risk to the community. His condition requires continued detention for the protection of himself and others from serious harm and his detention is the least restrictive option consistent with the safe and effective care.”

40. The Tribunal’s findings reflected the substance of Dr Bert’s opinions. The Tribunal was satisfied that, without his detention and treatment, the defendant’s condition was likely to deteriorate and his then current order for detention was the least restrictive order that was consistent with his safe and effective care and was appropriate having regard to his needs and to his safety and the safety of others.

41. The other reports from various government agencies referred to in s 127(2)(f) contained allegations which if proved also provide significant support for the continuation of the defendant’s status as a forensic patient.

42. As to the defendant’s level of compliance referred to in s 127(2)(g), I note that the more recent material included the report to the MHRT of Dr Bert. Although Dr Bert reported that the defendant’s mental state had continued to improve and he had engaged well with the treating team and there were no recent adverse incidents reported, the doctor remained of the view that his condition required continued detention for the protection not only of himself but also others from serious harm.

43. The remarks of the judge imposing the limiting terms on the defendant, referred to by Ierace J, were also consistent with this conclusion, as were the comments of Davies J and Ierace J in their respective interim and final decisions concerning the extension of the defendant’s status as a forensic patient in 2020 and 2021, respectively.

40. None of the other material provided a substantial basis for reaching any different conclusions from those of the MHRT, Dr Bert and the other psychiatrists or psychologists. Indeed, the material was consistent in generally supporting the conclusion that the safety of the community and his own wellbeing required the continuation of the defendant’s status as a forensic patient and that there was no other less restrictive means of appropriately managing the risk posed by the defendant available.

41. In summary, taking all of the allegations in the supporting material as to the s 127(2) matters into account on the assumption that they are proved, I am satisfied that they justify the making of an extension order in the sense that I would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient and the risk could not be adequately managed by other less restrictive means.

Examination orders

46. Given that I am so satisfied, I am required under s 126(5) to make the examinations orders sought.

Interim extension order

47. Since I am satisfied not only that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order but also that the existing extension order will expire before the proceedings are determined, the power to make an interim extension order under s 130 is also enlivened.

48. Neither party pointed to any circumstances which would justify my refusing to make such an order in the present case and I do not believe, on the material before me, that there is any such circumstance. Accordingly and in the absence of any opposition from the defendant, I propose to grant the interim extension order as sought.

Orders

49. Accordingly, the Court orders that:

1. Pursuant to section 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act:

1. Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of any two such persons) be appointed to conduct separate examinations of the defendant and provide 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.

2. The defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the existing extension order on 26 April 2025 for a period of three months.

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Amendments

30 June 2025 - Typographical error in coversheet corrected.

Decision last updated: 30 June 2025