Attorney General of New South Wales v BW (No 2)

[2019] NSWCA 309

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of New South Wales v BW (No 2) [2019] NSWCA 309
Hearing dates:	09 December 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Before:	Brereton JA
Decision:	Interim extension order made pursuant to Cl 10, Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) with respect to the respondent on 29 November 2019 continue until and including 6 February 2020 or further order.
Catchwords:	MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient   PROCEDURE – interim extension order – whether risk of futility in appeal if not extended
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW) Sch 1, Cl 10
Cases Cited:	Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 Attorney General of New South Wales v WB [2019] NSWCA 301
Category:	Procedural and other rulings
Parties:	Attorney General of New South Wales (applicant) BW (respondent)
Representation:	Counsel: J Emmett (applicant) T Davis (respondent)   Solicitors: Crown Solicitor’s office (applicant) Legal Aid NSW (respondent)
File Number(s):	2019/379476; 2019/379498
Publication restriction:	Non-publication order re identities of respondent and victims.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2019] NSWSC 1664 Date of Decision: 28 November 2019 Before: Ierace J File Number(s): 2019/274191

EX TEMPORE Judgment

1. The respondent, to whom I shall refer as BW, was the subject of a limiting term imposed by Payne DCJ as a result of having been found unfit to be tried for sexual offences against a young child. That limiting term expired at midnight on 29 November 2019. By application filed on 3 September 2019, the Attorney General sought interim and final extension orders pursuant to Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW). On 28 November 2019, Ierace J in the Common Law Division made an order for forensic examination of the respondent, but declined to make an interim extension order.

2. The Attorney has filed a summons for leave to appeal and a notice of appeal – there being some doubt as to whether or not leave is required – and on 29 November, Basten JA made an interim extension order, itself on an interim basis, until 13 December 2019 or further order. [1] Today, the appeal and summons for leave to appeal have been fixed for hearing on 6 February 2020 and directions made to ready the matters for hearing on that day. The parties are in agreement that the interim extension order should be continued until that date but, as the order is one which requires the Court to exercise its discretion, the matter has been referred to me for that purpose.

   1. See Attorney General of New South Wales v WB [2019] NSWCA 301.

3. Clause 10 of Sch 1 to the Forensic Provisions Act provides that the Court may make an order for interim extension of a person’s status as a forensic patient if, in proceedings on an application for an extension order, it appears that the limiting term or existing extension order would expire before the proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. The first limb, namely that the limiting term would expire before the proceedings are determined was plainly satisfied when the matter was before Ierace J and, insofar as it refers to an existing extension order, is satisfied today in that the existing extension order, such as it is, will expire on 13 December 2019, while the proceedings will not be heard until February 2020.

4. As to the second limb – namely that the matters alleged in the supporting documentation would if proved justify the making of an extension order – Ierace J was so satisfied. His Honour said that it was apparent that the only relevant consideration on the preliminary application was whether the matters alleged in the supporting material would, if proved, establish to a high degree of probability that the defendant poses an acceptable risk of causing serious harm to others if he ceases to be a forensic patient, and continued:[2]

I conclude that it would satisfy this test, having regard in particular to the assessment by Ms Corcoran that the applicant’s level of risk of recidivism is “moderate” and the potential gravity of conduct such as that alleged in the index events.

2. Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 at [74]–[75].

5. His Honour declined, however, to make an interim extension order for discretionary reasons.

6. The Attorney argues that there is at least a risk that the legislation will be so construed that the power to make an extension order exists only in respect of a person who is, at the time when the order is made, a forensic patient. If the limiting term or any existing extension expires before a further extension order is made then, at least arguably, the person in question ceases to be a forensic patient, and there is doubt as to whether that status can be revived retrospectively to support an extension order, after the person has ceased to be a forensic patient. Thus there is potential for the proceedings to be rendered futile if an interim extension order is not made. At least arguably, the primary judge did not have regard to that consideration in declining to make an interim extension order, and it was that view that founded Basten JA’s decision to make an interim extension order until 13 December.

7. The same considerations are operative today, in the light of the matter having been set down for hearing on 6 February. There does not appear to be any suggestion that the matters referred to in the evidence relied on by the Attorney, if established, could not satisfy meet the relevant test – as Ierace J indeed concluded. As BW has been on conditional release since 12 December 2018, the hardship of an interim extension order until 6 February is not so great as might have been the case were he not on some form of release.

8. In those circumstances – and in the absence of opposition to the continuation of the order made by Basten JA – I am satisfied that the order should be continued until the hearing of the appeal and application for leave to appeal, or further order.

9. Noting that the application to that extent is unopposed, the Court orders that the interim extension order made pursuant to Cl 10, Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) with respect to the respondent on 29 November 2019 continue until and including 6 February 2020 or further order.

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Endnotes