Attorney General of New South Wales v WB

[2019] NSWCA 301

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

29 November 2019

Date of orders:

29 November 2019

Decision date:

29 November 2019

Before:

Basten JA

Decision:

1. Make an interim extension order pursuant to cl 10, Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) with respect to the respondent, such order to operate until further order of the Court or until 5pm 13 December 2019, whichever date is earlier.

 

2.   Continue the order made by Ierace J in the Common Law Division that there be no publication of any information which may identify either the respondent or the victims of the sexual assaults in respect of which he was charged.

I make that order to reflect the terms of s 18(1) of the Chid Protection (Offenders Prohibition Orders) Act 2004 (NSW) and pursuant to s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW); in the latter case for the reasons given by Ierace J which apply in respect of that provision.

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

  PROCEDURE – civil – appeal pending – interim orders – order required to preserve subject-matter of appeal

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990 (NSW), s 42, Sch 1 cll 2, 6, 10, 11

Cases Cited:

Turner v State of New South Wales [2019] NSWCA 164

Category:

Procedural and other rulings

Parties:

Attorney General of New South Wales (Applicant)
WB (Respondent)

Representation:

Counsel:
J Emmett / J Brezniak (Applicant)
P Coady (Respondent)

  Solicitors:
Crown Solicitor’s Office (Applicant)
Legal Aid (NSW) (Respondent)

File Number(s):

2019/379476

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: The Attorney General seeks to appeal from part of a judgment delivered by Justice Ierace on 28 November 2019. The respondent is presently a forensic patient within the meaning of s 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Forensic Provisions Act). He is the subject of a limiting term which was imposed upon him by Judge Payne in the District Court as a result of him being found unfit to be tried for sexual offences against a young child. The limiting term expires at midnight tonight. Ierace J made orders for the forensic examination of the respondent, but refused to make an interim extension order. The Attorney challenges so much of the judgment as refused an interim extension order. The question is whether this Court should make an interim extension order, itself on an interim basis pending determination of the appeal.

2. The circumstances of the case may be briefly stated for present purposes. The application by the Attorney seeking extension orders, both interim and final, was filed on 3 September 2019. For reasons which are not presently apparent, and which are no doubt good reasons given the relatively short time involved, the matter did not come on for hearing in the Common Law Division until 19 November 2019; the decision was made yesterday.

3. The Attorney has filed both a summons seeking leave to appeal and a notice of appeal challenging the refusal of Ierace J to make the order sought on a number of grounds. The grounds raise questions, both of law and fact. I will deal shortly with the factual issues. The legal issue is whether an extension order can be made if the respondent’s status as a forensic patient ceases. There is undoubtedly an argument available to the Attorney that an extension order can be made, even though the person involved ceases to be a forensic patient; but the answer is by no means clear.

4. A similar consideration under the Crimes (High Risk Offenders) Act 2006 (NSW) was addressed in Turner v State of New South Wales [2019] NSWCA 164 earlier this year. However, as Mr Emmett submits on behalf of the Attorney, there may be questions as to whether, given the terms of the relevant provisions in Sch 1 of the Forensic Provisions Act, an extension order can be made under cl 2(1) in circumstances where the person is no longer a forensic patient. Those provisions are expressed differently from the language used in the High Risk Offenders Act.

5. The issue arose in the proceedings before Ierace J in the following way. Pursuant to Sch 1, cl 6(5) the judge was required to consider whether he was satisfied as to certain of the matters alleged in the supporting documentation before him, and that those matters would, if proved, justify the making of an extension order. If so satisfied, cl 6(5) required the Court to take certain steps, including the appointment of psychiatrists or psychologists to conduct an examination of the forensic patient and provide reports to the Supreme Court. In fact, the judge was so satisfied and made orders in those terms.

6. If it be true that no extension order can be made once the person ceases to be a forensic patient, then the making of those orders will have been a futility because, absent an interim extension order, the respondent will cease to be a forensic patient at midnight tonight, that is, 24 hours after the making of the orders by Ierace J. The question, therefore, is whether cl 10 of the Schedule, which confers on the Supreme Court a power to make an interim extension order, involves a real discretion in circumstances where the two preconditions to the making of such an order identified in cl 10 are satisfied.

7. There was no doubt that the first condition, namely that the limiting term to which the respondent was subject will expire before the proceedings are determined, was satisfied. The proceedings must include the application for the making of a final extension order. The second requirement was that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. It seems to be accepted that the second requirement, namely that in cl 10(b) is, in substance, identical to that in cl 6(5). On that basis it may be accepted that Ierace J was satisfied as to both the preconditions to the making of an interim extension order under cl 10. He said so much in his judgment but then, at [76], concluded that, in the exercise of his discretion, he would decline to make the interim extension order.

8. He gave three reasons for not making the order, or at least he identified three matters which he took into account in reaching that conclusion. First, the respondent is, and would remain, the subject of a child protection order, “which provides the community with a significant degree of protection” against the commission of further offences. The Attorney submitted that there was no evidence of an order having been made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). It is true, as counsel conceded, that what might have been intended was a reference to the presence of the respondent on the register of child sexual offenders, which was apparently an issue adverted to in the course of the proceedings.

9. Secondly, there was no reason to think that the respondent would cease to avail himself of the relevant services, engage in the therapy and social support and maintain his presence in the accommodation which had already been arranged for him in the community upon his conditional release from detention by the Mental Health Review Tribunal. In short, the point was that if the legal obligation to maintain the status quo were removed, it was highly likely that the status quo would remain in place with the cooperation of the respondent. The evidence to support that inference was circumstantial. The respondent is a person who appears in these proceedings by a tutor and no doubt there is limited evidence upon which to assess the likelihood of particular circumstances continuing. Nevertheless, counsel concedes that this was a legitimate consideration and no doubt it is.

10. Thirdly, the judge said that, in exercising his discretion, he was conscious of the limited lapse of time before the final hearing and determination of the matter, which he identified as a period of three months. It seems to be likely that the judge had in mind that an interim extension order could be made for a maximum period of three months. There is, in fact, no limitation on the period within which a final hearing and determination must be made of the application for a final extension order. In fact, by the time the judge had delivered judgment, more than two months had elapsed since the application had been made and, as we approach the holiday period, it is by no means clear that even the interim extension order application can be determined prior to the expiration of three months from the date the application was made.

11. The circumstances which give rise to concern, however, are those which have been raised in the notice of appeal and which turn on a statement made by the judge earlier in the judgment in the following terms:

“[37] … If the Court, in its discretion, does not make an [interim extension order] even though the material would, if proved, justify an extension order, there would be little point in the Court making an order requiring a forensic examination of the defendant, since the status of the defendant as a forensic patient would cease: s 42(a1) [sic] of the Act.”

The reference to s 42(a1) probably should read s 42(a)(i); the respondent would not, on the hypothesis being considered, be subject to an extension order, being the criterion identified in par (a1).

12. That factor, having been identified as a potential inconsistency in the requirements of the legislation, if it were to be interpreted as conferring an unfettered discretion as to whether to make an interim extension order, was not referred to in the reasoning for refusing to make such an order. The grounds of appeal take issue with that aspect of the matter. As it is put in the first ground of appeal, “it was not clear, as a matter of law, that a person’s status as a forensic patient can be revived by an extension order [made] after that person has ceased to be a forensic patient.” If the power is lost when the person ceases to be a forensic patient, the failure to make an interim extension order would render futile the orders made for psychiatric examination and would be fatal to the Attorney’s application.

13. In my view, that ground is sufficient to warrant the making of an interim extension order today in order to preserve the status quo pending determination of the Attorney’s appeal from the decision of the primary judge. There is then a question as to how long the order should be made for. Pursuant to the terms of cl 11 of Sch 1, an interim extension order will expire at the end of the period for which it is made, which shall not exceed three months from the day on which it commences. The order, which can only be made on an interim basis, pending determination of the appeal, will commence today.

14. It is obviously desirable that there be no undue delay in the hearing of the appeal and the application for leave to appeal; Mr Coady, who appears for the respondent, expressly invited the Court to determine the matter as soon as practicable on the sound basis that continuing uncertainty will be detrimental to the interests of the respondent. Given the time of year, I do not know whether it is possible for the matter to be heard and determined before Christmas. It is possible that it could be heard and not determined before Christmas, but that would be unsatisfactory in itself.

15. What I propose to do, therefore, is to make an interim extension order which is to continue until 5pm on Friday 13 December 2019 with the intention that either the appeal will come before the Court within that period, in which case that Court will be able to deal with any continuation or shortening of the period and, if the appeal is not heard before that time, then it will come back before me and I will determine whether and for how long to extend the interim extension order.

16. The Court orders are:

1. Make an interim extension order pursuant to cl 10, Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) with respect to the respondent, such order to operate until further order of the Court or until 5pm 13 December 2019, whichever date is earlier.

2. Continue the order made by Ierace J in the Common Law Division that there be no publication of any information which may identify either the respondent or the victims of the sexual assaults in respect of which he was charged.

I make that order to reflect the terms of s 18(1) of the Chid Protection (Offenders Prohibition Orders) Act 2004 (NSW) and pursuant to s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW); in the latter case for the reasons given by Ierace J which apply in respect of that provision.

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Decision last updated: 06 December 2019