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

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200
Hearing dates: 1 March 2021
Decision date: 10 March 2021
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Pursuant to clause 7 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant’s status as a forensic patient is extended for a period of 4 years from 27 April 2021 until 26 April 2025.
(2) Access to the Court’s file in this proceeding is restricted such that access will be granted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:
MENTAL HEALTH – Forensic patient – Extension of status as forensic patient

Legislation Cited:
Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701
Attorney General of New South Wales v WB (Final) [2020] NSWSC 152
Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107; [2016] NSWSC 107
Attorney-General of New South Wales v Kereopa [2017] NSWSC 411
Attorney-General of NSW v McGuire (No. 2) [2014] NSWSC 288; [2014] NSWSC 288
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
Re J (No 2) [2011] NSWSC 1224

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25638

Category: Principal judgment
Parties: Attorney General for NSW (Plaintiff)
Tutaua Vakapora by his tutor Dr Katherine Johnson (Defendant)
Representation:
Counsel:
R Rodger (Plaintiff)
C Goodhand (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2020/322646

Judgment

HIS HONOUR: The Attorney General of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 11 November 2020 against the defendant, Tutaua Vakapora, seeking interim and final orders extending the defendant’s status as a forensic patient, pursuant to s 54A and Sch 1 (“the Schedule”) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). The defendant was a forensic patient subject to a limiting term that expired on 27 January 2021.
The summons sought orders that two psychiatrists, psychologists and/or registered practitioners (or any combination of such persons) be appointed to separately examine the defendant and furnish reports to the Court, that he be ordered to attend the examinations, and that he be subject to an interim extension order (“IEO”) commencing on 27 January 2021. By way of final relief, the summons sought an order extending the defendant’s status as a forensic patient (“an extension…

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: [2021] NSWSC 200
Decision Date: 10 March 2021

CaseChat Overview and Summary

The matter before the court was a challenge by the Attorney General of New South Wales against the decision of the Supreme Court to discharge a forensic patient. The respondent, Vakapora, had been detained under the Mental Health Act for over 16 years, initially as a patient and subsequently as a forensic patient. The primary issue before the court was whether the respondent’s mental health condition and risk to the community justified his continued detention under the forensic patient regime.

The court examined the statutory criteria for continued detention under the Mental Health Act. It considered the respondent’s history of offending and mental health diagnosis, as well as expert evidence regarding the respondent’s current mental state and risk of reoffending. The court had to balance the respondent’s rights under the Act with the need to protect the public from significant harm. In reaching its decision, the court applied a high threshold for continued detention, requiring clear and convincing evidence of ongoing risk.

The court concluded that the respondent’s mental health condition, characterised by a severe personality disorder with psychopathic features, did not constitute a mental disorder for the purposes of the Act. Additionally, the court found that the respondent’s risk of reoffending, while present, was not of such a degree to warrant continued detention. The court emphasised the importance of the respondent’s ongoing treatment and rehabilitation, and the potential benefits of his release into the community under appropriate conditions. Consequently, the court allowed the appeal and discharged the respondent from his status as a forensic patient.

Orders