Attorney-General of New South Wales v Kereopa
[2017] NSWSC 411
•18 April 2017
|
New South Wales |
Case Name: | Attorney-General of New South Wales v Kereopa |
Medium Neutral Citation: | [2017] NSWSC 411 |
Hearing Date(s): | 13 April 2017 |
Date of Orders: | 18 April 2017 |
Decision Date: | 18 April 2017 |
Jurisdiction: | Common Law |
Before: | Davies J |
Decision: | (1) Non-publication order pursuant to s 7(a) and (b) of the Court Suppression and Non-publication Orders Act in respect of the information comprising the evidence given and to be given in the proceedings on the grounds set out in s 8(a), (c) and (e) of the Act until determination of the final hearing; |
Catchwords: | CRIMINAL LAW – forensic patient – multiple offences including fraud, break and enter, theft – limiting period about to expire – application for interim extension order – whether defendant poses an unacceptable risk of causing serious harm to others – meaning of “serious harm” – defendant diagnosed with schizophrenia, substance abuse and intellectual disability – prior offending involving violence – poor history of compliance with supervision – offences and breaches in custody some involving violence – no present proposal for management by less restrictive means – interim order made – non-publication order in relation to evidence |
Legislation Cited: | Children Criminal Proceedings Act 1987 (NSW) |
Cases Cited: | Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 |
Category: | Principal judgment |
Parties: | Attorney-General of New South Wales (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2017/94917 |
Judgment
The Attorney-General makes application under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA) for an interim extension order in respect of the Defendant. Such an application may be made in respect of a forensic patient only if the forensic patient is subject to a limiting term or an existing extension order.
The Defendant was charged with 21 separate offences committed in January 2014 as follows:
Count 2: Take and use conveyance without consent - s 154A(1)(b) Crimes Act 1900, North Bondi.
Count 3: Dishonestly obtain property by deception - s 192E(1)(a) Crimes Act 1900, Blacktown.
Count 4: Aggravated break enter and steal in company - s 112(2) Crimes Act 1900, Castle Hill.
Count 5: Aggravated break enter and steal in company - s 112(2) Crimes Act 1900, Chatswood.
Count 6: Take and use conveyance without consent - s 154A(2) Crimes Act 1900, Chatswood.
Count 9: Dishonestly obtain financial advantage by deception - s 192E(1)(a) Crimes Act 1900, Taxi.
Counts 10 to 24 inclusive: Dishonestly obtain property by deception -s192B(1)(a) Crimes Act 1900, generally Surry Hills, Redfern and City.
Counts 4 and 5 carry maximum penalties of 20 years imprisonment. Counts 2 and 6 carry maximum penalties of 5 years imprisonment and counts 3, 9 and 10-24 inclusive carry maximum penalties of 10 years imprisonment.
On 7 November 2014 Judge Jeffreys found that the Defendant was unfit to be tried on the charges.
A special hearing was conducted by his Honour Judge Hoy SC who found on 2 September 2015 that the Defendant was guilty of all of those offences on the limited evidence available. On 10 September 2015 his Honour imposed an overall limiting term of three years and three months commencing 24 January 2014 and concluding 23 April 2017. For some of the offences he was placed on s 9 bonds for a four year period to expire on 9 September 2019. These bonds contained a condition that the Defendant accept the supervision and guidance of Community Corrections in a large number of areas specifically identified for his needs.
It is in the circumstances of the imminent expiry of the limiting term that the Attorney-General now seeks an order that the Defendant be subject to an interim extension order under the Act and for the appointment of two qualified psychiatrists, psychologists and/or registered medical practitioners to conduct separate examinations of the Defendant and to furnish reports to the Court. The orders are not opposed by the Defendant but without prejudice to the Defendant to argue at the final hearing that an extension order should not be made.
Legal principles
Because the Defendant is the subject of a limiting term and was detained in custody pursuant to an order made under s 24 of the Act he is a "forensic patient" within the meaning of the definition of that term in s 42 of the Act. Section 54A of the Act gives power to the Court to extend a person's status as a forensic patient in accordance with Schedule 1 to the Act.
The test for making an extension order is set out in cl 2 of Sch 1 as follows:
2 Forensic patients in respect of whom extension orders may be made
(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.
Section 40 sets out the objects of Pt 5 of the Act which deals with forensic patients. The first of such objects is the protection of the safety of members of the public. The remaining three objects are directed towards the care and rehabilitation of the forensic patient.
Unacceptable risk
In Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 I said:
[9] In Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I noted at [10] that those objects relevantly accorded with the two objects in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA). I said at [12] that because the terms of the two legislative provisions are so closely aligned that I considered that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. This view was followed by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [7]-[8] and by Adamson J in New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 at [54].
[10] The task of the Court, therefore, at the preliminary stage for an interim order is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].
[11] In McGuire I made reference to a number of early decisions including my own decision in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 for the purpose of identifying the appropriate test to be applied for the first limb under Schedule 1 of the MHFPA. Since that time the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 said that the test I there proposed should not be followed insofar as that approach included having regard to:
the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order.
[12] In that way the Court of Appeal held that the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an “unacceptable risk” for the purposes of s 5E(2) of the CHROA. The correct approach to the first limb of cl 2 of Sch 1 is RA Hulme J’s formulation in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58], namely, that the words “unacceptable risk” should be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act: Lynn at [58] (noting that the reference to [38] appears to be a transcription error).
Counsel for the Defendant submitted that any reliance on principles arising out of decisions concerning the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) should be undertaken cautiously. Since persons who are subject to limiting terms are able to have their terms extended when they are not high risk offenders, the regime under the MHFPA has a far wider reach.
I accept that the regime under the MHFPA has a far wider reach but, on one level, that is a matter that tells against the Defendant. The unacceptable risk under the CHROA is committing either a “serious sex offence” or a “serious violence offence” both of which are defined in that Act. In relation to “serious violence offence”, at a minimum grievous bodily harm is required.
Counsel suggested that it was for that reason that caution was required. The offending making up the index offences could well be less serious than for high risk offenders and the unacceptable risk being guarded against could well be less because it is simply “serious harm” and not the commission of a serious violence offence or a serious sex offence. That was why in Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I said that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. I agree that the net is cast wider for forensic patients and to that extent the caution suggested should be exercised.
Serious harm
The unacceptable risk under the MHFPA is causing “serious harm to others”. What authority there is on these undefined words tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. The matter is highlighted in the present case where the index offences did not involve personal violence.
It does not appear that there is any authority on the meaning of the words in the context of the MHFPA. However, the expression is also used in s 14 of the Mental Health Act 2007 (NSW) and that section was considered by White J in Re J (No. 2) [2011] NSWSC 1224.
Section 14 relevantly provides:
14 Mentally ill persons
(cf 1990 Act, s 9)
(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
(a) for the person’s own protection from serious harm, or
(b) for the protection of others from serious harm.
There is no definition of the words “serious harm” in the Mental Health Act but it should be noted that s 15 of that Act, which deals with mentally disordered persons in similar terms to s 14 which deals with mentally ill persons, refers to “serious physical harm” of themselves or others.
Justice White said:
[89] There is no definition of the expression "serious harm" in s 14. Section 14 is in the same terms as s 9 of the now repealed Mental Health Act 1990 following amendment of that Act by the Mental Health Amendment Act 1997.
[90] Prior to 1997, s 9 of the Mental Health Act 1990 dealt separately with the necessity to protect a person suffering from mental illness from serious physical harm and from serious financial harm and from serious damage to the person's reputation.
[91] That section was repealed and replaced by the Mental Health Legislative Amendment Act 1997 in the form which was repeated in s 14 of the 2007 Act.
[92] The explanatory note to the amendment in 1997 stated:
“The amendment asserts a new definition of mentally ill person that removes the existing requirement that a person suffering from a mental illness is such a person if the person requires care, treatment or control for the protection of the person or others from serious physical harm and replaces it with a requirement that such a person requires the care, treatment or control for protection of the person or others from serious harm. The effect of this is to enable other kinds of harm, such as financial harm or harm to reputation, to be considered when determining whether a person can be detained as a mentally ill person."
[93] There may be a question as to whether this prior legislative history can be considered in construing s 14 of the present Act. If it can be taken into account, then it would be clear that serious harm under s 14 can include harm to a person's finances. Without recourse to the legislative history, I doubt that the expression would be so construed, although "serious harm" would have to be wider than "serious physical harm". I think there would be much to be said for the submission of counsel for the plaintiff that serious harm under s 14 refers to what counsel calls either physical harm or psychological harm.
[94] In the context of this Act there could be a real question as to the validity of such a distinction, but it is a distinction often drawn in other areas of the law. Such a construction would be consistent with other provisions, such as ss 12 and 35(5)(c) which contemplate that there will be protection provided against the harm by provision of care.
[95] In the absence of argument on the question and in the time available I have not come to a conclusion as to whether it is legitimate to construe s 14 by reference to the prior legislative history. I will assume without deciding that it is, and that therefore a person can be a mentally ill person if he or she suffers from mental illness, and owing to that illness there are reasonable grounds to believe that care, treatment or control of the person is necessary to protect the person or otherwise from serious financial harm.
I accept that Re J must be treated carefully for a determination of the meaning of the term “serious harm” in the MHFPA because of its context in the Mental Health Act. However, there is no reason in principle why “serious harm” in the MHFPA would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of “serious violence offence” in the CHROA) is explained to juries as being “really serious injury”, a concept that must be on a higher plane than “serious harm”.
Less restrictive means
The second limb in clause 2 of Schedule 1 requires the Court to be satisfied to a high degree of probability that the risk cannot be adequately managed by other less restrictive means. In Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 Garling J said of the requirement in cl 2(1)(b) at [63]:
I would take the use of the phrase "adequately managed" to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community.
Evidence
Two psychiatrists who prepared reports for the Mental Health Review Tribunal hearing in December 2014, Dr Richard Furst and Dr Rosalie Wilcox both diagnosed schizophrenia, substance use disorder and found that the Defendant had an intellectual disability. Both psychiatrists noted a past diagnosis of Attention Deficit Hyperactivity Disorder.
The Defendant was examined by Dr Kerri Eagle, a forensic psychiatric, on 23 January 2017. She prepared a report dated 5 February 2017 which reported on that consultation and her examination of a large amount of material that had been forwarded to her. On 13 March 2017 she provided a supplementary report after having been sent a number of further documents relating to prior offending by the Defendant.
Dr Eagle diagnosed the Defendant as suffering from schizophrenia, an intellectual disability, a severe substance use disorder and she said that he had anti-social personality traits.
Although, as I have said, the index offences did not involve personal violence some of the earlier offending by the Defendant had involved personal violence. Those offences were common assault, assault with intent to rob, assault law officer, assault officer in execution of duties and assault occasioning actual bodily harm. Dr Eagle noted that the Defendant appeared to have ongoing problems with insight into his violence risk. That conclusion appears to have stemmed partly, at least, from his statement to her that the worst offence he had committed had been the index offences and that he had not previously engaged in violence or fighting.
In relation to the risk of violent re-offending Dr Eagle said:
79. Historical factors that have been found to be associated with violent offending include a history of problems with violence, other antisocial behaviour, substance use, relationships, employment, major mental disorder, personality disorder, traumatic experiences, violent attitudes and treatment or supervision response. Historical factors are unchangeable and correlate with a higher risk of violent reoffending in the longer term.
80 Mr Kereopa has a history of problems with violence (including charges of assault and assault with intent to rob). He has a history of other antisocial behaviour (including stealing; driving recklessly; damage to property; break and enter); problems with substance use, relationships and employment. He has had a diagnosis of schizophrenia (a major mental disorder) and has had problems with supervision. Mr Kereopa has also had adverse childrearing experiences (including being a witness to domestic violence in the home).
81. Mr Kereopa has a high loading of historical risk factors that correlates with an increased risk of violent reoffending in the longer term.
Dr Eagle noted the following matters:
(a) The Defendant had previously engaged in reactive aggression;
(b) The functional motivation of the aggression appeared to be associated with a monetary or practical end. The aggression did not appear to have been with a view to harming others or in response to threats or for the purpose of revenge or intimidation;
(c) The Defendant had been intoxicated on illicit substances during much of his offending;
(d) Deterioration in his mental state due to a relapse of his illness had been associated with an increase in offending and aggressive behaviour, with the relapses having been precipitated by substance use and non-compliance with treatment;
(e) The Defendant had frequently been in the company of peers during his aggressive behaviour and he had been identified as highly susceptible to peer influence;
(f) Sprees of aggressive behaviour and other offending had occurred after the Defendant had absconded from his supported accommodation.
In relation to the risk he poses Dr Eagle said this:
I am of the opinion that Mr Kereopa does pose a risk of causing serious harm to others if he ceases to be a forensic patient and is released into the community without adequate support. He has a high historical loading of risk factors for aggression. However the most significant concern appears to be the lack of adequate risk management strategies in place for his release. Given Mr Kereopa's history, in the event that Mr Kereopa is released without adequate risk management strategies in place he is likely to relapse in his mental illness, engage in substance use, potentially abscond from his residence and relapse into offending behaviours.
After reviewing the further material forwarded to her Dr Eagle provided this opinion in her second report:
(a) Having regard to the additional information provided and the structured professional judgement risk assessment undertaken in my previous report, I am of the opinion that Mr Kereopa poses a high risk of engaging in behaviours that could cause serious harm to others if he ceases to be a forensic patient. It should be noted that, despite the frequently (sic) of Mr Kereopa's previous offending behaviours, others have fortunately not been physically harmed in a number of these cases. However, given the nature of Mr Kereopa's offending behaviours, discussed above, and his risk factors for violence, in my view he remains at a high risk of engaging in aggressive or offending behaviours in future without adequate external constraints in place. These behaviours have the potential to give rise to harm to others such as physical injury from an act of aggression or a motor vehicle collision.
(b) Mr Kereopa has engaged in previous aggressive and offending behaviours despite high levels of supervision in the community including the support of ADHC (Department of Ageing, Disability and Home Care) and the potential availability of the mental health legislation.
(c) Mr Kereopa's offending behaviours have occurred as a result of the combination of his intellectual disability, severe mental illness, substance use disorder and antisocial cognitions. As a result of the combination of these difficulties, Mr Kereopa is unlikely to be able to be adequately managed in the community without the benefit of assertive and coercive management powers, such as those available in the management of forensic patients.
(d) Mr Kereopa's risk of aggressive and offending behaviours may be able to be contained or reduced with the benefit of the treatment and management strategies described in my previous report at paragraph 89.5 in addition to restrictions that are potentially available under a forensic order at the discretion of the Mental Health Review Tribunal (such as urine drug testing; restrictions on associations, behaviours and public access; and the rapid power of recall to a hospital or custodial setting if found in contravention of these restrictions). It should be noted that given Mr Kereopa's mental illness and cognitive deficits, a custodial setting is not a therapeutic setting that would, in my view, give rise to a reduction in Mr Kereopa's future offending risk. However, custodial settings can temporarily contain risk of violence by incapacitation.
In relation to matters to be considered under the second limb, Dr Eagle noted the Defendant’s custodial position as follows:
[64] The Corrective Services records indicate that Mr Kereopa has been frequently in and out of custody since he was an adolescent, despite various levels of support being provided in the community by CJP and ADHC-(Aged Disability and Health Care). In particular, according to the case notes Mr Kereopa was released from custody on 31 January 2009. He was placed in supported housing with CJP. He was arrested on 20 February 2010 and readmitted into custody. He was then released on 19 April 2010. He was provided with assertive follow-up by CJP. He absconded from his residence and reoffended on 23 July 2010. He was readmitted to custody on 29 July 2010. He was subsequently released from custody again on 9 August 2010. It was noted on 12 August 2010 that he was "very unwell and "psychotic." He absconded from his supported housing on 27 October 2010 and was readmitted to custody on 2 November 2010. Mr Kereopa was again released from custody on 24 November 2011. On this occasion he was remanded to an intensive residential facility. He was managed at the intensive facility until he absconded on 21 August 2012. He reported staying with his cousin for some time until he was readmitted to custody on 12 September 2012. He was again released from custody on 30 September 2013 under a community treatment order. He was rearrested for armed robbery on 20 November 2013. He was released from custody on 12 December 2013 and on 14 January 2014 he "disappeared from his accommodation.” He was rearrested on 24 January 2014. He has remained in custody since 2014.
The records from Corrective Services show that the Defendant has had a large number of breaches whilst in custody including for assault where actual bodily harm was caused. Further, a report by a senior clinical consultant at the Community Justice Program in 2010 said that the Defendant had been moved to a CJP Intensive Residential Service where he was receiving 24 hour support. However, within three months he absconded from the house. It may be accepted that that event was some years ago but what Dr Eagle reported about his custodial history makes that relevant because it is but one in a number of incidents where anything but the closest supervision resulted in either absconding or further offending or both.
Dr Eagle said in relation to methods of risk management:
85. Future problems with risk management factors such as professional services and plans; living situation; personal support; treatment or supervision response and stress or coping have been associated with an increased risk of future violence.
86. In this case, the risk management factors are most important given that previous risk management plans, including comprehensive plans with high levels of support, have not succeeded. It is unclear what discharge planning has been arranged for Mr Kereopa and it is clear that he requires intensive support during any transition into the community. He is likely to encounter problems with his living situation, particularly given his history of interpersonal conflict with peers and absconding;
Mr Kereopa has supportive parents, however the information provided suggested that his parents were unable to manage his behaviours; Mr Kereopa has demonstrated substantial difficulty managing stress or coping and this is likely to be a problem when he transitions back into the community unless a gradual transition is able to be facilitated.
She concluded:
I am of the view that, given his history of repeated non-compliance, absconding and re-offending, Mr Kereopa is unlikely to comply with recommended management strategies in the absence of a forensic order at this stage.
…
I do not believe that Mr Kereopa’s needs could be managed adequately as an involuntary patient under the Mental Health Act 2007. Mr Kereopa’s needs arise form a combination of his intellectual disability, mental illness and antisocial traits. The legislative regime developed to oversee the involuntary treatment of the mentally ill will not apply in relation to Mr Kereopa’s intellectual disability.
Determination
Dr Eagle’s conclusions were not challenged at this hearing. I accept her conclusions concerning the assessment of the Defendant’s risk and how that can be managed.
I have also had regard to a number of earlier psychological and psychiatric assessments of the Defendant. They support the conclusion that the Defendant’s mental and intellectual problems are of long-standing. Whilst he can be treated for the mental and substance abuse problems the diminished intellectual abilities will remain. Treatment of the schizophrenia and the substance abuse is largely dependent on the Defendant’s compliance but the intellectual problems may impinge on that compliance.
There is in fact no present plan for managing the Defendant’s risk in any alternative manner to making an extension order. The possibilities are treatment as an involuntary patient under the Mental Health Act, a community treatment order or supervision under the s 9 bonds. I accept the Attorney’s submission that neither a Community Treatment Order nor reliance on the good behaviour bonds is likely to be adequate to ameliorate the risk the Defendant presents. I also accept the analysis of Adamson J in Attorney-General of New South Wales v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 of the difference between the position where a person is held as an involuntary patient and where a person is a forensic patient and her conclusions in that regard at [119] and [121]. A difficulty may well arise if the schizophrenia is adequately treated and controlled. In such circumstances the Defendant would not be held as an involuntary patient but the intellectual disability along with continued substance abuse would mean the risk was unmanaged.
On the basis of all of this material but noting that it has not been challenged on this application for an interim order, I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means.
Non-publication
The Defendant seeks that the Court make the following additional interim orders:
(a) That the Defendant’s name be anonymised by pseudonym for the preliminary hearing until any final application is made at the final hearing.
(b) That there be a non-publication order in respect of the Defendant’s name for the preliminary proceedings;
(c) That there be a suppression order in respect of the Defendant’s name in respect for the preliminary proceedings.
It is said that the power to make such an orders is found in s 162 Mental Health Act 2007 (NSW) as well as the Court Suppression and Non-publication Orders Act 2010 (NSW). Section 162 of the Mental Health Act provides:
162 Publication of names
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) to whom a matter before the Tribunal relates, or
(b) who appears as a witness before the Tribunal in any proceedings, or
(c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990,
whether before or after the hearing is completed.
Maximum penalty:
(a) in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or
(b) in the case of a corporation—100 penalty units.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.
The Defendant submitted that the material relied upon by the Attorney-General in these proceedings is material contemplated by s 162(c) of the Mental Health Act and that the operation of the section should extend to material contained in the affidavits sworn by the solicitor for the Plaintiff. That is partly because the affidavits refer to the Defendant’s juvenile criminal history, publication of which would be contrary to the Children (Criminal Proceedings) Act 1987 (NSW), and because the Defendant is a vulnerable person with a serious mental illness and an intellectual disability. It is submitted that publication of the affidavits would involve publication of the Defendant’s confidential medical records.
A similar application was made to Campbell J in Minister for Mental Health v Paciocco [2017] NSWSC 4. In that case his Honour said:
[51] As Adamson J pointed out in Doolan at [60], s 162 is to be found in Chapter 6 Part 2 of the MHA. By s 149 that part applies “to any proceedings of the Tribunal under this or any other Act”. In my judgment it follows from this, largely for the reasons given by Adamson J, that the expression “any proceedings” in s 162(1)(c) should be read as “any proceedings of the Tribunal”. It does not extend to proceedings in this Court under FPA. These powers extend beyond those I am exercising under s 54A and Schedule 1 of that Act. Special Hearings involving persons unfit to plead are generally conducted without the name of the person whose apparent offending is in issue being anonymised. I decline to make the order sought.
I agree with the analysis of Adamson J in Attorney-General of NSW v Doolan [2015] NSWSC 1773 at [60] – [68]. However, it does not appear that the point now being made by the Defendant was argued in those cases.
The Defendant seeks to argue that even if s 162 has no application directly to the present proceedings, the protection accorded by s 162 will be rendered nugatory if the information annexed to and exhibited to the affidavits in the present proceedings is published because it identifies the Defendant. Whether s 162 provides protection to medical and other material which is before the Tribunal is something that needs to be argued at the final hearing in this matter. The power is available, however, under s 10 of the Court Suppression and Non-publication Orders Act to make an interim non-publication order without determining the merits of the application. I consider that it is appropriate to do so. The order is not opposed by the Attorney.
The Defendant’s name is in the public arena already because of the judgments in the District Court. I can see no basis, therefore, for anonymising the Defendant in these proceedings at least at this stage of the proceedings.
Conclusion
I make the following orders:
(1)Non-publication order pursuant to s 7(a) and (b) of the Court Suppression and Non-publication Orders Act in respect of the information comprising the evidence given and to be given in the proceedings on the grounds set out in s 8(a), (c) and (e) of the Act until determination of the final hearing;
(2)Pursuant to clause 6(5) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 the Court appoints one qualified psychiatrist and one qualified psychologist to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 5.00pm on 2 June 2017;
(3)The Defendant is directed to attend the examinations referred to in Order 2;
(4)Pursuant to clause 10 of Schedule 1 to the Act an interim extension order is made for a period of 28 days commencing on 23 April 2017;
(5)Plaintiff to file and serve any affidavits and written submissions on which it relies by 5.00pm on 12 June 2017;
(6)Defendant to file and serve any affidavits and written submissions on which he relies by 5.00pm on 26 June 2017;
(7)Fix the proceedings for final hearing on 3 July 2017 with an estimate of one day.
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Amendments
19 April 2017 - Reason for publication restriction entered onto cover sheet.
05 February 2018 - Publication restriction lifted.
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