Attorney General of New South Wales v WB

[2020] NSWCA 7

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Attorney General of New South Wales v WB [2020] NSWCA 7

Hearing dates:

6 February 2020

Date of orders:

12 February 2020

Decision date:

12 February 2020

Before:

Basten JA at [1];
Macfarlan JA at [58];
Leeming JA at [61];

Decision:

(1)   In the summons matter, subject to (3) below, grant the Attorney General leave to appeal from the order made in the Common Law Division on 28 November 2019 refusing to make an interim extension order.
(2)   Treat the amended notice of appeal filed 4 February 2020 in matter 2019/379498 as filed pursuant to the grant of leave to appeal.
(3)   Limit the grant of leave to ground 1 in the amended notice of appeal.
(4)   Allow the appeal and set aside order (3) made in the Common Law Division on 28 November 2019.
(5) Pursuant to cl 10 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), make an interim extension order in respect of the respondent, such order to expire on 29 February 2020.

Catchwords:

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient

 

APPEALS – appeal from refusal to make an interim extension order under the Mental Health (Forensic Provisions) Act 1990 (NSW) – source of right to appeal – whether subject to leave – limited grant of leave
STATUTORY INTERPRETATION – principle of legality – fundamental rights and freedoms – intention to confer power to infringe liberty – application to extension orders under the Mental Health (Forensic Provisions) Act 1990

 

STATUTORY INTERPRETATION – use of defined term – whether used as label – whether context and subject matter show intention that definition not apply – application of Interpretation Act 1987 (NSW), s 6

WORDS & PHRASES – “may” – power conferred on Supreme Court to make interim extension order with respect to forensic patient – whether coupled with duty to make order where pre-conditions satisfied – Mental Health (Forensic Provisions) Act 1990, Sch 1, cl 10

Legislation Cited:

Interpretation Act 1987 (NSW), s 6
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 3, 27, 42, 46, 47, 52, 54A; Sch 1, cll 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15; Pts 1, 2; Divs 1, 2, 3, 4
Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Attorney General of New South Wales v BW (No 2) [2019] NSWCA 309
Attorney General of New South Wales v WB [2019] NSWCA 301
Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15; 238 A Crim R 251
Turner v State of New South Wales [2019] NSWCA 164

Category:

Principal judgment

Parties:

Attorney General of New South Wales (Applicant/Appellant)
WB by his tutor Dr Katherine Johnson (Respondent)

Representation:

Counsel:
Mr J S Emmett / Ms S Climo (Applicant/Appellant)
Ms B Rigg SC / Mr P Coady (Respondent)

  Solicitors:
Crown Solicitor’s Office (Applicant/Appellant)
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

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 1664

Date of Decision:

28 November 2019

Before:

Ierace J

File Number(s):

2019/274191

Judgment

1. BASTEN JA: In March 2015 the respondent was found unfit to be tried on two counts, involving one offence of sexual intercourse and one act of indecency with a person under the age of 10 years. On 30 September 2016 Payne DCJ imposed a “limiting term” commencing on 30 September 2016 and expiring on 29 November 2019. The respondent was referred to the Mental Health Review Tribunal to determine his appropriate placement.

2. On 3 September 2019, a little short of three months before the expiration of the limiting term, the Attorney General filed a summons in the Supreme Court seeking an extension of his status as a forensic patient for a period of three years. The summons also sought an interim extension order for a period of three months and the appointment of two qualified psychiatrists to conduct psychiatric examinations of the respondent.

3. On the return date of the summons (5 September 2019), a preliminary hearing was fixed for 19 November 2019. It seems likely that the date was fixed without advertence to the terms of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“Forensic Provisions Act”), which requires that “[a] preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed”, unless the Court allows further time: Sch 1, cl 6(4). Generally, that time requirement should be complied with; the failure to do so in this case has led to acute time problems in accommodating later steps.

4. The preliminary application was heard by Ierace J on 19 November 2019, judgment being delivered on 28 November 2019, a day before the expiration of the limiting term. The judge made orders appointing a psychiatrist and a psychologist to examine the respondent and furnish reports to the Supreme Court and directed the respondent to attend the examinations. [1] However, the application for an interim extension order was dismissed: order (3). The Attorney appealed from that order.

   1. Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664, orders (1) and (2).

5. On 29 November there was an urgent hearing in this Court and an interim order was made granting an interim extension order for a sufficient period to permit the hearing of an appeal. [2] That course was taken because of a concern that once the respondent ceased to be a forensic patient, an extension order could not be granted. The interim order was designed to protect the subject matter of the appeal.

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

6. For reasons which are not clear, the appeal was not listed as expeditiously as had been hoped in November 2019; however, the interim order preserving the status quo was extended until 6 February 2020, being the date on which the appeal was listed before this Court. [3]

   3. Attorney General of New South Wales v BW (No 2) [2019] NSWCA 309 (Brereton JA).

7. The primary concern of the Attorney is that the relevant statutory scheme set out in Sch 1 of the Forensic Provisions Act did not allow the making of an extension order in circumstances where the person concerned had ceased to be a forensic patient. Unless an interim extension order was in force, that status would have ceased with the expiration of the limiting term on 29 November 2019. Since the only purpose of requiring the respondent to undergo psychiatric and psychological examinations was to provide a basis for determining whether there should be an extension order, the orders directing such examinations were futile, and must have been understood to be so when made, in the absence of an interim extension order maintaining his status as a forensic patient. It was on the basis that that ground of appeal had apparent substance that the interim orders were made in this Court. [4] Absent further order, however, that status would have terminated on the day of the hearing of the appeal, namely 6 February 2020. The Court extended the interim order for 7 days.

   4. [2019] NSWCA 301 at [12]-[13].

8. There are two further complications. First, as will be explained below, an interim extension order (or orders) cannot have effect for a period of more than three months in total. It would appear to follow that, if an extension order can only be made with respect to a person currently a forensic patient, such an order must be made, if at all, by 29 February 2020. There would thus be a period of little more than three weeks in which to hear and determine the application for an extension order in the Common Law Division from the date of hearing the appeal, if the Attorney’s construction of the legislation were accepted.

9. Secondly, it is necessary to address the basis of the jurisdiction of this Court. On one view, the Attorney has a right of appeal pursuant to Sch 1, cl 14 of the Forensic Provisions Act. However, if that is not so, the right of appeal arises under s 101(2) of the Supreme Court Act 1970 (NSW). It is not in dispute that the orders made by Ierace J were interlocutory and accordingly, if s 101 is the source of jurisdiction, the Attorney would require leave pursuant to s 101(2)(e).

10. Both of the issues noted above require consideration of the language and structure of relevant sections, and of Sch 1, of the Forensic Provisions Act. It is convenient to deal with the statutory scheme first in the context of the jurisdictional issue.

Jurisdiction of appeal court

11. The term “forensic patient” is referred to in the definitions in s 3 of the Forensic Provisions Act, but is defined in s 42. Section 42 reads as follows:

42   Forensic patients

For the purposes of this Act, the following persons are forensic patients:

(a)   a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under:

(i)   section 14, 17(3), 24, 25, 27 or 39, or

(ii) section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA(5) of that Act),

(a1)   a person in respect of whom an extension order or interim extension order is in force,

(b)   a person who is a member of a class of persons prescribed by the regulations for the purposes of this section.

12. The class of forensic patients thus extends beyond, but includes, persons found unfit to be tried in respect of whom a limiting term has been imposed and detained under s 27. For the period of the limiting term, the respondent was detained, subject to the determinations of the Tribunal. Thereafter, he will only be a forensic patient if he is a person in respect of whom an extension order or an interim extension order is in force.

13. The provision for extension of the status of a forensic person is provided for in Sch 1, in accordance with the specific provision to that effect in s 54A. Schedule 1 contains four parts. Part 1 (cll 1 and 2) is headed “Extension of status as forensic patient”. It contains empowering provisions in the following terms:

1   Extension orders for forensic patients

(1)   The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person’s status as a forensic patient.

(2)   An order made under this clause is an extension order.

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.

Note. Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.

14. Part 2, “Extension orders”, contains four divisions, namely, Div 1 (cll 3-6) “Application for extension order”; Div 2 (cll 7-9) “Determination of application”; Div 3 (cll 10-11A) “Interim extension orders” and Div 4, “General”. Division 4 has a single clause, cl 12, providing for the variation or revocation of an extension order or an interim extension order.

15. Part 3 of Sch 1 “Supreme Court proceedings” provides that proceedings under the Schedule are civil proceedings (cl 13) and provides a right of appeal to this Court from any determination of a single judge with respect to an extension order. Part 4 (cll 17-22) is headed “Miscellaneous” and contains no provision of present relevance.

16. It is convenient to commence with cl 14 setting out the right of appeal.

14   Right of appeal

(1)   An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, or to vary or revoke an extension order.

(2)   An appeal may be on a question of law, a question of fact or a question of mixed law and fact.

(3)   An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow.

(4)   The making of an appeal does not stay the operation of an extension order.

(5)   If the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the extension order the subject of the appeal continues in force, subject to any order made by the Court of Appeal.

(6)   Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extension order the subject of the appeal.

(7)   This clause does not limit any right of appeal that may exist apart from this Schedule.

17. Clause 14(1) makes reference only to a determination with respect to “an extension order” and does not refer an “interim extension order”. The term “extension order” is defined in s 3(1) of the Act to mean “an order for the extension of a person’s status as a forensic patient under clause 1 of Schedule 1.” The term “interim extension order” is also defined in s 3(1) and means “an order for the interim extension of a person’s status as a forensic patient under clause 10 of Schedule 1.” Applying these definitions, the right of appeal conferred by cl 14 does not extend to an interim extension order made under cl 10. However, in order to be sure that the definitional distinction is maintained in Sch 1, cl 14, it is necessary to have regard to other provisions in Sch 1.

18. Broadly speaking, extension orders are dealt with in Pt 1 and in Pt 2, Divs 1 and 2 of Sch 1; interim extension orders are dealt with in Div 3. Division 4, has a single clause which applies to both kinds or order:

12   Extension order or interim extension order may be varied or revoked

(1)   The Supreme Court may at any time vary or revoke an extension order or interim extension order:

(a)   on the application of a Minister administering this Act or the forensic patient, or

(b) on the recommendation of the Tribunal under section 47(2A).

(2)   The period of an order must not be varied so that the total period as varied is greater than that otherwise permitted under this Part.

(3)   Without limiting the grounds for revoking an extension order or interim extension order, the Supreme Court may revoke an extension order or interim extension order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

19. Subject to one qualification, this scheme is consistent with a deliberate distinction between extension orders and interim extension orders. Where a power is intended to cover both, that is expressly stated, as in cl 12.

20. The qualification to this scheme is cl 9 which appears in Div 2, dealing with extension orders, but also applies to both orders:

9   Continuation of order relating to forensic patient

The making of an extension order or interim extension order in respect of a forensic patient does not affect the operation of any order as to the forensic patient’s care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order.

21. Although no other clause in Div 1 or Div 2 of Pt 2 deals with interim extension orders, which, indeed, had not been referred to in any provision prior to cl 9, there is no reason to draw an inference from the reference to both in cl 9 that the term “extension order” when used by itself, was intended elsewhere to encompass interim extension orders. (On one view, it would have been appropriate to include cl 9 in Div 4 with cl 12.)

22. Finally, it is convenient to consider the context in which cl 14(1) will operate. As recognised by cl 14(7), there will be rights of appeal which exist otherwise than pursuant to the Schedule to the Forensic Provisions Act. Clause 13 provides that proceedings under the Schedule are civil proceedings and are to be conducted in accordance with the law relating to civil proceedings. That language is apt to engage the rights of appeal to this Court from any judgment or order of the Court in a Division, pursuant to s 101(1)(a) of the Supreme Court Act. However, as noted above, a judgment or order relating to an interim extension order (and incidental matters) will undoubtedly be interlocutory and therefore subject to a requirement for leave. An interim extension order is not only interlocutory, but can have operation for a very limited period, namely for a period of no more than three months: Sch 1, cl 11(2). An extension order, by contrast, may operate for five years and may be renewed. That very significant difference in terms of potential consequences provides a sound basis for permitting an appeal as of right (and within 28 days) from an extension order, but leaving any right of appeal with respect to an interim extension order subject to the requirement of leave under the general provisions of s 101(2).

23. It follows that the current appeal, directed only to the refusal of an interim extension order, does not lie under cl 14(1) and requires leave.

Should leave be granted?

24. The central issue raised by the appeal is whether the power of the court to grant an extension order operates only with respect to a person who is, at the time the order is made, a forensic patient. If, as the Attorney submits, that is so then there is a strong argument that the primary judge erred in failing to make an interim extension order. Because his orders were made a day before the limiting term expired, absent an interim extension order, there would have been no opportunity to obtain examinations of the respondent by a psychiatrist and a psychologist, as the judge ordered, and deploy the relevant reports in support of the application for an extension order.

25. On the other hand, if the respondent is correct and an extension order can be made at a time when he is no longer a forensic patient, then (perhaps ironically) an extension order may be imposed on him even had he been free of constraints under such a regime since November 29 last year.

26. In either case, it is essential to the regular disposal of the present proceedings (and no doubt other proceedings under the Schedule) for this question to be resolved. Accordingly, there should be a grant of leave to appeal with respect to the challenge to the refusal of the primary judge to make an interim extension order. The question is whether the grant should extend to all grounds.

27. Ground 1 of the appeal relied upon the anomalous result of ordering psychiatric and psychological examinations in circumstances where the capacity to make an extension order was about to expire. The grant of leave should extend to that ground.

28. Grounds 2 and 3 raise issues as to other errors allegedly made by the primary judge. Ground 2 alleged that the primary judge had wrongly concluded that the respondent was subject to a “child protection order” when that was not so. Ground 3 relied upon a reference in the judgment to there being only three months before the final hearing and determination of the application. That statement was puzzling, the only reference to a three month period in the Schedule being the limit imposed on the total length of one or more interim extension orders.

29. Grounds 2 and 3 only arise if the Attorney fails on ground 1. If he fails on ground 1, there is no need for an interim extension order to maintain the jurisdiction of the Court to make an extension order. With respect to ground 2, there were differing views as to what the judge meant by the phrase “child protection order” and as to the scope of the evidence in that regard. While ground 3 appears to identify an error, the point was that the final determination would be made within a relatively short period, a fact which is now true and would be taken into account by this Court if required to re-exercise the discretion as to an interim extension order. Finally, neither ground 2 nor ground 3 raises any matter of general importance.

24. For these reasons, leave to appeal should be limited to ground 1.

Relevant status for making extension order

31. A person with respect to whom a limiting term has been imposed will cease to be a forensic patient in accordance with the terms of s 52(2), which relevantly provides:

52   Additional circumstances for termination of classification as forensic patient

…

(2)   Detention after special hearing A person who has been detained in a mental health facility, correctional centre or other place following a special hearing ceases to be a forensic patient if any of the following events occurs:

(a)   the limiting term (where that term is less than life) imposed in respect of the person under section 23 expires and an extension order or interim extension order has not been made against the person,

(a1)   any extension order or interim extension order made against the person expires or is revoked and a subsequent extension order has not been made against the person,

(b)   the person is classified as an involuntary patient under section 53.

It follows that, absent an interim extension order, the respondent would cease to be a forensic patient upon expiry of his limiting term. The question is, therefore, whether an extension order can be made with respect to a person who is not a forensic patient, as asserted by the respondent.

32. Schedule 1, cl 1, set out above, is neutral in relation to this issue. However, cl 2(1) expressly provides that the only person who can be made the subject of an extension order is a “forensic patient”, and requires that the Supreme Court be satisfied that “the forensic patient” poses an unacceptable risk of serious harm if he or she ceases being a forensic patient. This language is consistent with such an order being made only in respect of a person who qualifies as a “forensic patient”. Consistently with this reading, (i) the order is described as an “extension order”, and (ii) there is provision for an interim order to be made if it appears that the person’s status as a forensic patient “will expire before the proceedings are determined”: cl 10, discussed below.

33. Other provisions are consistent with this reading. Thus, cl 2(1) is not to be read out of context: cl 4 undoubtedly requires that an application for an extension order can only be made in respect of a forensic patient, identified as a person who is “subject to” a limiting term or an existing extension order. The respondent accepted this was so. But if forensic patient has its technical meaning in cl 4, why would it not have its technical meaning in cl 2(1), which prescribes the test to be applied by the court in determining an application made in accordance with cl 4?

34. Clause 3, using language similar to cl 4, provides for an application for an extension order “against a forensic patient”. The procedural provisions in cll 5 and 6 also envisage that the person is a forensic patient whilst the application is before the Supreme Court. Clause 7 provides for the court to determine the application for an extension order by making the order or dismissing the application; subcl (3) reads as follows:

(3)   If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.

35. As counsel for the Attorney submitted, the legislative scheme provides for the courts to make orders which create the status of “forensic patient”, while the manner in which forensic patients are to be detained, cared for and treated, is under the control of the Mental Health Review Tribunal. The powers of the Tribunal are set out in ss 46 and 47 of the Act. Although the point is not decisive, the Attorney’s submission that there is no provision which envisages an hiatus in the status of a forensic patient who has been found unfit to be tried is correct.

36. Clauses 8 and 9 maintain the use of the term “forensic patient”. Clause 8 provides for the commencement and expiration of an extension order and further states:

(2)   Nothing in this clause prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient.

37. Clause 9, which applies generally in relation to both extension orders and interim extension orders also identifies the person in respect of whom such an order is made as “a forensic patient”:

9   Continuation of order relating to forensic patient

The making of an extension order or interim extension order in respect of a forensic patient does not affect the operation of any order as to the forensic patient’s care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order.

38. All the provisions discussed above support the Attorney’s position. It was not submitted that there was any provision expressly explaining that the precondition (uniformly expressed in a series of provisions) ceased to operate at some point before the order is made, and in defiance of the language of cl 2(1), which is consistent only with the status being a precondition of an effective order.

39. In short, the language of cl 2(1) provides formidable obstacles to the respondent’s construction of the Schedule. Not only did it use the term “forensic patient” three times, but that is a defined term. The respondent relied on a number of arguments in seeking to escape the plain, unambiguous, ordinary meaning of these provisions. First, he submitted that the definition in s 42 of the Forensic Provisions Act was not engaged because, as provided in s 6 of the Interpretation Act 1987 (NSW), “the context or subject matter otherwise indicates or requires.” There were two difficulties with this submission. First, it is by no means clear what in the context or subject matter provides any basis for not applying the definition. As appeared from the submissions, this argument had no other basis than the contention, discussed below, that the making of an interim order where available, was not mandatory. Secondly, the term “forensic patient” has no meaning other than that provided by the definition.

40. Secondly, both in relation to this usage and its usage in other provisions, the respondent submitted that the term was, in effect, just a label; its purpose was to identify a person who had, at least when the application was made, been a forensic patient. Although it is true that the courts from time to time decry the use of labels, that is usually where a term is used as if it identifies a standard against which conduct is to be judged, when in fact it describes a conclusion. In this context forensic patient was indeed a label, but it was a label with a purpose – it was used to identify the status of a person who could be the subject of an order.

41. Thirdly, the respondent called in aid the language of cl 2(2) which referred, not to a forensic patient, but to a “person”, in applying the test identified in cl 2(1)(a). However, that departure from the earlier language is explicable on the basis, not that forensic patient was not being used in its true sense, but because the hypothetical assessment to be made by the court related to that person if no longer a forensic patient.

42. Fourthly, the respondent had one linguistic peg on which to support an inference that a person could be the subject of an “extension order”, even if not made until after he or she had ceased to be a forensic patient. The sole factor in favour of the respondent’s case is an implication derived from cl 10, empowering the court to make an interim extension order:

10   Interim extension order

The Supreme 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.

43. Counsel for the respondent submitted that the use of the term “may” in cl 10 should be understood as conferring a “true discretion”, in the sense that the Court could refuse to make an interim extension order even though it appeared that the person would no longer be a forensic patient at the time the proceedings were determined. That may well be so, but it would not by itself lead to the conclusion that an extension order could be made in respect of a person who was no longer a forensic patient. There was, however, a further step in counsel’s argument. That turned on the pre-hearing procedures, followed in this case, and provided for in mandatory terms in cl 6(5). That provision states:

6   Pre-hearing procedures

…

(5)   If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders:

(a)   appointing:

(i)   2 qualified psychiatrists, or

(ii)   2 registered psychologists, or

(iii)   2 registered medical practitioners, or

(iv)   any combination of 2 persons referred to in subparagraphs (i)–(iii),

to conduct separate examinations of the forensic patient and to furnish reports to the Supreme Court on the results of those examinations, and

(b)   directing the forensic patient to attend those examinations.

44. If an extension order could only be made in respect of a forensic patient, there was a mismatch, counsel submitted, between the mandatory terms of cl 6(5) and the discretionary terms of cl 10. It would, indeed, appear anomalous that the judge should be required to make an order when relevantly satisfied for the purposes of cl 6(5), appointing psychiatrists or psychologists, and yet not be required to extend the period during which the person remained a forensic patient, pursuant to cl 10. It followed, the submission continued, that because Ierace J was required, on his satisfaction as to the matter stated in the chapeau to sub-cl (5) to order the appointments, that order would be futile unless the Court could still act on the reports (if it thought fit) and make an extension order, after the limiting term had expired. That could only be so in one of two circumstances, (i) either an interim extension order was in force, or (ii) the respondent need no longer be a forensic patient. Because (i) turned the discretionary “may” into “must”, a term the drafter had used in cl 6(5), but eschewed in cl 10, (ii) was the preferred construction.

45. The respondent sought to bolster his case in this respect by reliance on the “principle of legality”. Putting to one side the use of the unhelpful label, the respondent contended that an interim extension order imposed a constraint or burden on his liberty in circumstances where the legislature had not demonstrated in clear terms an intention to confer a power which required such an outcome. However, the use of such a principle of statutory interpretation in this context is untenable because (i) it ignores the fact that the legislature expressly identified a time limit within which such an interim order can operate and thus limited the brief period within which an extension order (which may operate for up to five years) can be imposed; (ii) by removing the immunity from an extension order once the three month period has expired, the respondent’s only protection is the increasing likelihood, depending upon the evidence, that the court may decline to make such an order as the hiatus lengthens, and (iii) to say that the legislature failed to makes its intention clear can only be accepted if one ignores all the factors set out above which would require rejection of the proposition that a person can be subject to an extension order even though he or she is no longer a forensic patient.

46. Furthermore, the structure of subcl 6(5) differs in various respects from the structure of cl 10. The matter as to which the court must be “satisfied” under the former provision is a factual one as to the likelihood of final orders being made if the matters relied upon were demonstrated on the evidence. If so satisfied, the court is required to take the step of obtaining expert evidence; if not so satisfied, it is required to dismiss the application. The same assessment is a precondition to the making of an interim extension order: cl 10(b). However, the court is also required to assess a matter peculiarly within the knowledge and expertise of the court, namely when a final hearing would likely be determined. That is an additional precondition to the making of an interim extension order and is of a different kind to the appointment of psychiatrists or psychologists. It may be for that reason that cl 10 is formulated as the conferral of a power. Clause 6(5) requires a formulaic direction (as to the appointment of experts); cl 10 provides a power for a purpose, which will involve a discretionary exercise as to the terms of the order, and particularly the period for which it is required.

47. Each party drew the Court’s attention to authority dealing with this or similar legislation. The Attorney noted that in Director of Public Prosecutions (NSW) v Khoury [5] the Court had considered the section of the Forensic Provisions Act under which the Court was empowered to make orders with respect to a limiting term, following a determination of the Tribunal. Section 27 provides that the Court “may” take one of two steps, depending upon the determination of the Tribunal. Similar issues arose as to whether the use of the term “may” in conferring a power in fact conferred a power coupled with a duty to exercise the power when the precondition was satisfied. [6] That issue bore some similarity in that s 27 clearly envisages that the Court would make a detention order, but there was an element of discretion as to the place in which the forensic patient would be detained. [7] As the Attorney recognised, the case provided an illustration of the construction for which he contended: it did not dictate an answer in the present case, although it did demonstrate that the statute used “may” with respect to the powers of the Court, whilst imposing a duty to act in some way with limited discretion.

    5. [2014] NSWCA 15; 238 A Crim R 251.

    6. Khoury at [37].

    7. Khoury at [47].

48. The respondent relied upon the reasoning of this Court in Turner v State of New South Wales [8] for the proposition that under the Crimes (High Risk Offenders) Act 2006 (NSW) a continuing detention order could be made after the person’s current custody had expired, in circumstances where the application was required to be made during the period of custody. [9] However, (i) the language of that legislation differed significantly from that adopted in the Forensic Provisions Act, (ii) there was earlier authority of this Court supporting the conclusion reached, (iii) the Court was conscious of the desirability of avoiding an hiatus in detention if possible,[10] and (iv) the circumstances in Turner did not concern a bifurcation of power between the Court and the Tribunal, which arises under the Forensic Provisions Act.

    8. [2019] NSWCA 164.

    9.    Turner at [28]-[39].

    10. Turner at [29].

49. Contrary to the respondent’s submissions, if his reading were correct, and an extension order could be made after the status of forensic patient had expired, there would be no clear purpose in providing for an interim extension order and limiting the period for which it may operate. Its only purpose then would be to prevent a brief hiatus, but leave open the possibility of a longer hiatus. The preferable view is that the purpose of cl 10 is to provide for a brief extension of the status of forensic patient so as to permit an extension order to be made, but to maintain a tight limit on the latitude so provided.

50. While the respondent’s submissions identify a possible construction of the inter-relationship between cll 6(5) and 10, there is an available alternative construction, namely that the drafter has used “may” to confer a power, but it is a power which carries with it an obligation that the power should, generally, be exercised in the circumstances in which it is engaged. The respondent’s approach rides rough-shod over the intention lucidly expressed in all other provisions in Schedule 1, with arguably deleterious results for affected individuals.

51. One consequence of this conclusion is that, while a degree of protection is given to the respondent by the need for the speedy determination of an extension application, one can readily envisage circumstances in which the public protection of an extension order may be lost because the timetable cannot be complied with. However, this consequence is one which the Court may assume Parliament weighed in considering the length of the period to be provided for determining an extension order application. Because it involves the balancing of the public interest against the interests of the individual liable to such an order, it is pre-eminently a question for Parliament to determine, as it did. Statutes are replete with provisions imposing time limitations on the bringing of prosecutions and otherwise taking steps for the protection of the public. Yet, offences may go undiscovered for a longer period than the limitation period, witnesses may not be identified in time, the public authority may not have the resources to investigate in a timely fashion. None of these considerations would generally be considered relevant in deciding whether a limitation period should be read as non-mandatory: they are universal contingencies.

52. Viewed in their entirety, the provisions of Sch 1 are consistent with the Attorney’s submission that an extension order cannot be made once a person has ceased to be a forensic patient.

Conclusions

53. In these circumstances the Attorney’s appeal should be upheld and the order of the primary judge refusing to make an interim extension order should be set aside.

54. As noted above, the interim extension order made by this Court on an interim basis on 29 November 2019 was extended until 6 February 2020. The Court was advised at the hearing that examinations had been organised and should have taken place prior to delivery of this judgment. To allow the serious matters raised by counsel to be considered, a further extension of the interim order was made on 6 February for a week, so that the order will terminate, unless further extended, on 13 February 2020. The parties were satisfied that once the reports were obtained following the examinations, the matter could be set down and determined by 29 February 2020, being the last date to which it is possible to extend an interim extension order, in accordance with cl 11(2).

55. Whether that timetable can be complied with is not known. If it cannot, it will largely be due to the apparent failure of counsel for the Attorney on the first return date to draw the attention of the list judge to the 28 day period within which the preliminary hearing should have been held, pursuant to cl 6(4). However, in circumstances where the respondent contended that there was no limitation on when an extension order could be made, there can be no undue prejudice in granting an interim extension order to expire on 29 February 2020. That order should be made.

56. The respondent is, as a forensic patient, protected against a costs order by cl 15 of Sch 1. (If his submission had been accepted and he had been the subject of an extension order made after he ceased to be a forensic patient, that protection would have been lost, although it might be unlikely that a costs order would have been made against him.)

57. It follows that the Court should make the following orders:

1. In the summons matter, subject to (3) below, grant the Attorney General leave to appeal from the order made in the Common Law Division on 28 November 2019 refusing to make an interim extension order.

1. Treat the amended notice of appeal filed 4 February 2020 in matter 2019/379498 as filed pursuant to the grant of leave to appeal.

2. Limit the grant of leave to ground 1 in the amended notice of appeal.

3. Allow the appeal and set aside order (3) made in the Common Law Division on 28 November 2019.

4. Pursuant to cl 10 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), make an interim extension order in respect of the respondent, such order to expire on 29 February 2020.

58. MACFARLAN JA: I agree with the orders that Basten JA proposes and with the reasons that his Honour gives. I add the following observations.

59. A consequence of the construction for which the respondent contends, and which I do not favour, is that a person who has completed a “limiting term” which the Court has specified in respect of an offence which it has found (on limited evidence) that the person has committed may be subjected at any time in the future to a further constraint on his or her liberty as a result of the same offence. Such an outcome should not be accepted in the absence of the statute making it abundantly clear that that was what the legislature intended. For the reasons given by Basten JA the statute does not do this.

60. Certainly, the statute’s provision for the extension of a limiting order enables an additional constraint to be imposed after the making of a limiting order but, on the appellant’s construction, the time when such an extension can be made is tightly confined, in contrast to the unlimited time within which an extension can be sought and made on the respondent’s construction.

61. LEEMING JA: I have had the advantage of reading Basten JA’s judgment in draft. I agree with Basten JA, for the reasons he gives, that there is no appeal as of right from the failure to make an interim extension order, but that there should be a grant of leave confined to the first ground. However, I would dismiss the appeal.

62. The background and relevant legislative provisions are reproduced in Basten JA’s judgment. In what follows, I have adopted the approach of the Attorney and distinguished an interim extension order made under cl 10 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) from what, for clarity, may be called a “final extension order” made under cl 1 of the same Schedule.

63. A final extension order is to be made only in the circumstances specified in cl 2 and may be for a term not exceeding 5 years. An interim extension order may not be made for a period longer than 3 months. Although more than one interim extension order may be made, the period during which the status as a forensic patient is thereby extended may not exceed 3 months.

64. There are many types of “forensic patients”, but cl 4 imposes two conditions which substantially restrict the subclass of forensic patients in respect of whom an application for an extension order may be made. First, by reason of cl 4(1), the forensic patient must be subject to a limiting term or an existing extension order. Secondly, by reason of cl 4(2), the application must be made in the last 6 months prior to the expiry of the limiting term or existing extension order. Reference was made during the hearing to that 6 month period as the “window” for making an application, and it is convenient to repeat that language.

65. The application will be followed by a preliminary hearing, following which orders may be made for two examinations of the person by psychiatrists, psychologists or medical practitioners as appropriate. If such orders are made, then there will be a further hearing after the reports of those experts have been received, following which the application for a final extension order will be granted or refused.

66. Ordinarily, after the expiry of a limiting term or an existing extension order, a person would cease to be a forensic patient. However, if proceedings seeking an extension order have been commenced, a further application may be made in those proceedings for an interim extension order. If made, the person will for that period continue to hold the status of “forensic patient”, notwithstanding the expiry of the 6 month window.

67. The question is whether at the time a final extension order is made the person must still be a “forensic patient”. According to the Attorney, the person must still be a forensic patient, and there must be no hiatus in status. There are two important consequences of that construction which should be noted immediately.

1. If an order is not made within the 6 month window, it may only be made within the period of time thereafter, not exceeding 3 months, during which one or more interim extension orders have been made.

2. Because there can be no prospect of making a final extension order after the 6 month window has expired unless an interim extension order has been made, the practical effect is that in every arguable case an interim extension order will be made. Otherwise, if the interim extension order is not made, there can be no prospect of a final extension order, and there would be no utility with taking any further steps with the compulsory examinations, the expert reports, or other aspects of the further hearing. That is to say, the refusal of an interim extension order is, on the Attorney’s construction, tantamount to the determination of the substantive application.

Considerations bearing upon the construction of the statute

68. A number of textual considerations point in favour of a construction that requires the person still to be a forensic patient when any final extension order is made. One is the language of “extend” in s 54A of the Act (which makes Schedule 1 applicable), “extension” and the term “extension order” itself, which does not naturally contemplate an interruption of status. Another is the references throughout the Schedule to steps being taken in relation to the “forensic patient”. Thus the examinations to occur following orders made at a preliminary hearing are “separate examinations of the forensic patient”, and the Court must direct “the forensic patient to attend those examinations”: s 6(5). Thirdly, and in my view most powerfully, cl 2(1) contains necessary and sufficient conditions for the making of an extension order, one of which is “the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient”. It will be seen that the necessary and sufficient conditions do not merely refer to the then current status of the person as a “forensic patient”. They also mandate an inquiry into the consequences “if he or she ceases being a forensic patient”.

69. However, as the Attorney candidly conceded, there were also textual matters pointing the other way.

70. The first is the striking similarity of language between cl 6(5) and cl 10, emphasised below:

“6(5). If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders [for compulsory examination].”

…

10. The Supreme 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.”

71. Ordinarily, such a difference in legislative language would reflect a different legal meaning. But the Attorney accepted, in my view properly, that as a matter of substance, if the construction he favoured were correct, then there was no discretion to make an interim extension order once it appeared that an order under cl 6 was required and the limiting term or existing extension order would expire.

72. It is trite that a statutory “may” can on its proper construction be mandatory. But the textual force of the respondent’s submission is that the distinction between “may” and “must” in cl 6 and cl 10 in the same Part appears in provisions which require exactly the same assessment of whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”.

73. There may be many reasons why an application for a final extension order is not made until towards the end of the 6 month window. It may be that there is a rapid deterioration in a forensic patient’s condition. It may be that new symptoms or behaviour materialise. It may be that there are delays in making the decision to commence proceedings. There are many cases under the high risk offender legislation, which is similar to the current regime, where such delays have been seen.

74. It is therefore to be expected as an ordinary concomitant of the scheme that there will be cases where the 6 month window expires and all that exists is a body of untested material, perhaps (as in the present case) not including any recent reports following a compulsory examination, which might in due course support the making of an order. Indeed, that is apt to be any case where an application is made in the last month or so before the window closes. It is quite clear that the statute permits an application to be made in the weeks or even days before the window expires.

75. The Attorney’s construction requires the Supreme Court to make an interim extension order when, in such cases, the 6 month window closes. Not lightly would the conclusion be reached that the legislation on its proper construction, expressed permissively, in fact obliged the Supreme Court to make an order affecting a person’s liberty on the basis of untested claims. (Although it is easy to contemplate constitutional aspects of this, the submission was advanced merely as a matter of construction, and for my purposes it is sufficient to proceed on that basis.)

76. Secondly, cl 6(4) provides:

“A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.”

77. It will be noted that that clause expressly imposes a qualified requirement for one aspect of the application to be determined within a 28 day period. On the construction favoured by the Attorney General, there is a second, unqualified, implied requirement upon the Supreme Court, namely, that any final extension order be made no later than 3 months after the expiry of the 6 month window. The presence of an express and qualified requirement as to an element of the regime might be thought to tell against the implication of an implied and unqualified requirement as to another element of the regime.

78. It will also be noted that cl 6(4) confers power to extend the time for a preliminary hearing to occur. That power is expressed in general language “within such further time as the Supreme Court may allow”. On the construction favoured by the Attorney General, that express conferral of power is qualified, as if it were to read “but not so as to preclude the possibility that a final extension order may be made within a period expiring 3 months after the expiry of the 6 month window.” That said, one must always be cautious in relying upon what in substance is an expressio unius argument.

79. Thirdly, cl 14 confers a right of appeal from the making, or refusal to make, a final extension order. Plainly the right of appeal extends to the Attorney who submits that a final extension order should have been made but was not made. Plainly the necessary and sufficient conditions in cl 2 apply to the Court of Appeal’s hearing and determining an appeal by the Attorney. It seems unlikely that the outcome of such an appeal would be pre-determined in the event that it was not heard and determined within 3 months after the 6 month window.

80. Three aspects of this third point should be drawn out.

1. The likelihood is that very few appeals, if any, would ever be heard and determined within the 6 month window. At best they would be determined in the three month period after the expiry of that window.

2. If the Attorney’s construction be correct, it would be necessary in every case where the appeal is not determined within the 6 month window to make an interim extension order.

3. If a judge at first instance declines to make a final extension order and the 6 month window has already expired, it will be necessary to make an interim extension order then and there, before orders dismissing the Attorney’s application are made, in order to preserve the subject matter of the Attorney’s right of appeal. Realistically, that will appropriately be done by the judge who has heard all of the evidence, and concluded that no such order should be made. The alternative is that it is to be done by a judge who has not hitherto been aware of any of the material, urgently, before the order made at first instance comes into effect.

81. Fourthly, cl 15 confers a protection reflective of the nature of the regime. It provides:

15 Costs not to be awarded against forensic patient

An order for costs may not be made against a forensic patient in relation to any proceedings under this Schedule (including proceedings on an appeal under this Schedule).

82. One way of reading that provision is that it applies generally, in favour of any person in respect of whom an extension order is sought, irrespective of whether or not he or she is a forensic patient at the time a question of costs arises.

83. The respondent relied upon the “principle of legality” in opposition to the Attorney’s construction which reduced the discretion in cl 10 to an obligation, on the basis that the making of an interim extension order directly impacted the liberty of the individual. Undoubtedly it does just that. However, the alternative construction also impacts the liberty of an individual. On the Attorney’s construction, the time within which a person is at risk of being made subject to a final extension order is no longer than 3 months after the end of the 6 month window. On the respondent’s construction, the person may be at risk of being made subject to a final extension order for a longer period of time.

84. Every order made under the Act impacts upon the liberty of individuals. I see no sound way in which one can assess which of the constructions more severely impacts upon liberty. In some cases it will be clear that one construction does so, in others it will be clear that the other does so, and in many it may be quite contestable which, from the perspective of the liberty of the person at risk of being made subject to an interim or final extension order, is worse. The answer to this appeal will not be found in some generally worded principle of construction based upon interference with individuals’ liberty.

85. Similarly, the issue which arises here was not something to which the Law Reform Commission’s report, or the other extrinsic materials on which the respondent relied, were directed.

Consideration

86. On the one hand, there is a very powerful textual argument based on the references to “forensic patient”, “ceases being a forensic patient” and “extension” to the effect that that person’s status must be unchanged at the time any final extension order is made.

87. On the other hand, the textual contrast between “must” and “may” in cl 6 and cl 10 is stark, and not lightly would the statute be construed to convert what is drafted as a power conferred on a Court to make an interim extension order into an obligation imposed on a Court to do so.

88. I do not think the repeated references to the “forensic patient” are determinative. As a matter of ordinary language, it is necessary for the statute to use some term to describe the person in respect of whom the application is made. That person will inevitably have been a forensic patient when the application was made. I do not regard those references as mandating that he or she be a forensic patient if and when an extension order is made. The references to “forensic patient” are capable of being read as references to the person the subject of the order who was a forensic patient at the time the application was made. The same is true of the textual considerations based on the use of “extend”, “extension” and “extension order”. In many and indeed most cases, the effect will be that the person’s status as a forensic patient will continue until the time a final extension order is made. But the issue is whether those references entail that no final extension can be made in any case when the person no longer has the status of being a forensic patient.

89. The most powerful textual consideration flows from the reference in cl 2 to “ceases being a forensic patient”. But once again, those words are capable of being read as referring not to the days immediately preceding the making of the order, but as contrasting the time at which the application was made with the years in the future during which the Attorney applies for a final extension order to be in place.

90. I readily acknowledge that the meanings suggested above are not the most natural readings of those words. But that is not the test. The provisions must be read as a whole, and the most natural meaning of “may” in cl 10 is not that the statute imposes an obligation upon the Supreme Court to make an interim extension order. Further, I think it is fairly clear that “forensic patient” in cl 15 was intended to apply to any person against whom an application under the statute was made, irrespective of whether the person was a forensic patient at the time a question of costs arises. And there is a very substantial impact on the Attorney’s right of appeal if his construction is right, because on re-exercising the discretion to make a final extension order in cases where one has been refused at first instance, the Court of Appeal will be bound by the necessary and sufficient conditions in cl 2.

91. More generally, the legislative purpose reflects an appreciation of the importance of the issues involved, which bear upon the liberty of the individual and the safety of the community. The protective measures, notably the preliminary hearing and the reports from two qualified experts, recognise as much. I find it difficult to reconcile with such a purpose a construction which carries with it the inflexible time constraints which flow from the Attorney’s construction, and which mandate the making of interim extension orders in a number of recurring scenarios, including on the facts of the present case.

92. In particular, I find it difficult to reconcile such a legislative purpose with the practical reality that the filing in the last few weeks of the 6 month window of an application which makes claims, which, if proven, would justify making an extension order, will oblige the Supreme Court to make an interim extension order. I do not accept that the legal meaning of the conspicuously permissive language of cl 10 is to be understood as imposing an obligation upon the Court to make orders impinging on the liberty of individuals.

93. Finally, a construction which avoids capricious results is to be favoured. There is the possibility of quite awkward and unusual results if the Attorney’s construction be correct. It means that there is no power to make a final extension order at any time after 3 months have expired after the limiting term or the existing final extension order has elapsed. In the facts of the present litigation, where there is not, even today, a report from either of the experts, this consideration looms large. If the Attorney is right, his application must be dismissed unless there can be a final hearing and determination by 29 February 2020. Given that what is sought is an order with effect for 3 years, it seems to me to be unlikely that an implication should be drawn that the Court must, if it is to make an extension order, do so in that time period. And if there is a final hearing in the last fortnight of February and the Attorney’s application is refused, the right of appeal conferred by cl 14 upon the Attorney is, upon his construction, almost certainly useless.

86. Not lightly would I conclude, given the importance of the issues of individual liberty and community safety which underlie the legislation, that the decision to make a final extension order is impliedly circumscribed by the need for the person to have maintained his or her status as a forensic patient up to the moment the order is made, with all of the consequences for the timing of such decisions and appeals as have been mentioned above.

87. Whichever construction be adopted, there will be straining of the statutory language. Bearing in mind all of the above, I have concluded that the preferable construction is that applied by the primary judge. “May” in cl 10 confers a discretion. The references to a “forensic patient” are references to the person against whom proceedings have been brought who, at the time the application was made, was a forensic patient”. The question whether there is an unacceptable risk if that person ceases being a forensic patient requires an evaluation of the position before the litigation was commenced against what the position would be if no final extension order were made. In many and perhaps most cases, the person will continue to be a forensic patient when a decision whether to make a final extension order is made. But on the view I take, the fact that the person is no longer a forensic patient at the time the Attorney’s application is determined does not prevent the making of a final extension order.

88. For those reasons, while I would grant leave to appeal, confined to ground 1, I would dismiss the appeal.

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Endnotes

Decision last updated: 12 February 2020