Attorney General of NSW v Mailes

[2023] NSWSC 584

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of NSW v Mailes [2023] NSWSC 584

Hearing dates:

29 May 2023

Date of orders:

29 May 2023

Decision date:

29 May 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [25]-[26]

Catchwords:

MENTAL HEALTH — forensic patient — pre-hearing procedural orders — interim extension orders — where defendant does not oppose nor consent to the orders sought — whether Court is satisfied of the statutory requirements — orders made

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Attorney General for NSW v Rohan (Preliminary) [2020] NSWSC 1610

Attorney General of NSW v Mailes [2021] NSWSC 823

State of NSW v McGee (Preliminary) [2019] NSWSC 53

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Attorney General of NSW (P)
Graham Edward Mailes (D)

Representation:

Counsel:
K Ng (P)
C Goodhand (D)

Solicitors:
Crown Solicitors Office (P)
Legal Aid NSW (D)

File Number(s):

2023/1127307

Publication restriction:

Suppression and non-publication order in respect of Defendant’s present and future addresses.

EX TEMPORE JUDGMENT

1. This is an application brought by Summons filed on 12 April 2023, in which the Attorney General for NSW as plaintiff seeks orders against Mr Graham Mailes as defendant pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”).

Orders Sought

2. The plaintiff seeks orders pursuant to s 126(5) of the Act, appointing two qualified experts to conduct separate examinations of the defendant and to furnish reports to the Court, and directing the defendant to attend those examinations.

3. The plaintiff also seeks an order pursuant to s 130 of the Act that the defendant be subject to an interim order for the extension of his status as a forensic patient, commencing on 6 June 2023 (when the current order expires) for a period of three months.

4. Finally, the plaintiff seeks an order that access to this Court’s file in respect of any documents shall not be granted to a non-party without the leave of a judge of the Court.

Position of the Defendant

5. The position of the defendant, by his counsel, is that he neither opposes nor consents to the making of the orders pursuant to ss 126(5) and 130 of the Act. He consents to the non‑disclosure order.

6. The defendant, by a Notice of Motion filed in Court today, seeks relief from the Court pursuant to ss 7(a) and (b) of the Court Suppression and Non-publication Orders Act 2010 with respect to any information which tends to reveal or otherwise identify any current or future address where he lives, including the Local Government Area in which any such address is located and the adjacent Local Government Areas of those addresses. I do not understand the plaintiff to oppose that order.

7. These proceedings – which are known more commonly as proceedings for a preliminary order, or else preliminary proceedings – are, as are the final proceedings, civil in nature. The Court is entitled, in being persuaded as to the proof of the necessary facts, to take account of the fact that, in this case, the defendant, by his counsel, offers no opposition to the orders which are being sought. Of course, any attitude taken by the defendant at the preliminary hearing does not bind the plaintiff to take the same attitude at a final hearing.

Legal Principles

8. At a preliminary hearing, to make the order sought for an interim extension of a person’s status as a forensic patient, the Court must be satisfied that, firstly, the existing extension order to which the defendant is subject will expire before the proceedings are determined: s 130(a) of the Act. I am so satisfied. It is simply not possible for there to be a final hearing before the existing order expires in June 2023.

9. The second matter of which this Court needs to be satisfied is that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order on a final basis: s 130(b) of the Act. For the reasons which follow, I am so satisfied.

10. In considering the application of s 130(b), I endorse the approach taken by Fullerton J in State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 where, at [10] it was observed that:

“… the more accurate formulation … is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. …”

11. I note that the test, at this preliminary stage, is to be applied without considering any evidence that might be available to, or called by, a defendant: see Attorney General for NSW v Rohan (Preliminary) [2020] NSWSC 1610 at [49].

12. As well, I note that, ultimately, the Court is invested with a discretion when considering the gravity of either a final extension order or one on a preliminary basis. It is necessary for the Court to be satisfied of certain threshold criteria, and then, on the assumption that those criteria are satisfied, the Court is entitled to exercise its discretion make an extension order on a final basis.

13. A forensic patient can be made the subject of an extension order if this Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if the defendant ceases to be a forensic patient and, further, that the risk cannot be adequately managed by other less restrictive means: see s 122(1)(a) and s 122(1)(b) of the Act. I will proceed in these reasons to apply the relevant statutory requirements and principles.

14. There are a number of statutory criteria of which the Court is required to be satisfied in order to make, even on an interim basis, an extension order. The first is that an application is made by the Attorney General with respect to a forensic patient: s 123. This is so satisfied, because the plaintiff is the Attorney General, and the defendant is currently a forensic patient.

15. The second threshold matter is that the forensic patient must be subject to an existing extension order: s 124(1). The defendant is subject to an existing extension order and, accordingly, s 124(1) of the Act is satisfied.

16. The third threshold matter is that the application is being made less than six months before the expiry of the existing extension order. Here, the existing extension order applies for a period of two years from 7 June 2021 and, accordingly, it expires on 6 June 2023. As I have previously said, the application was filed in April. It was clearly filed within six months before the expiry of the order, and that criteria under s 124(2) of the Act is satisfied.

Discernment

17. In 2021, for the reasons set out in Attorney General of NSW v Mailes [2021] NSWSC 823, I granted an application by the plaintiff to extend the defendant’s status as a forensic patient for a period of 2 years.

18. It is not suggested that I should not hear and deal with the application before me today, because of that judgment.

19. Two experts gave evidence at that hearing. Dr Samuel concluded that the defendant had an underlying intellectual disability with associated hearing loss and a speech impediment, and he was satisfied that the defendant had features of an anti-social personality disorder with a tendency to impulsivity and aggression. Dr Samuel concluded that the defendant remained at a moderate risk of future violence or aggression, but that the then current risk management strategies were appropriate and seemed to be effective. He expressed his reasons for that conclusion in the following way:

“The level of the risk of future violence and aggression towards others is in my view moderate. He has significant antisocial personal traits, he has mild intellectual disability, he has a risk of using substances if not supervised, he has a low frustration tolerance, is somewhat impulsive and if his needs are not met he can get angry quite quickly. If [the defendant] is using substances his risk of violence and aggression would substantially increase. If [the defendant] is in a structured, well civilised environment and is not misusing substances and there is oversight of his day-to-day activities, that level of risk would be substantially reduced.”

20. Professor Hayes, who also gave evidence during that hearing, said this of the risk of the defendant:

“I consider his risk of causing serious harm to others to be low, if he ceases to be a forensic patient, but I consider that a further period of supervision and stability as a forensic patient may be advisable.”

21. Professor Hayes went on to say:

“The risk factors which contribute to the possibility of him causing serious harm to others include unexpected stress, unanticipated relapse into alcohol or cannabis use, interpersonal stressors in relationships with service providers and others in the community, and other unanticipated difficulty/frustrations which may arise, possibly in the context of outside factors such as his NDIS funding, especially in relation to accommodation.”

22. As well, I have the benefit of a risk assessment report from Dr White. It notes that the defendant has a long-standing diagnosis of anti-social personality disorder, a substance and alcohol abuse disorder and that he suffers from a mild intellectual impairment. I note that Dr White concludes that the defendant has a chronic, long-standing risk of violent behaviour and a high loading of historical risk factors which are said to significantly elevate his risk of violent offending. I accept this unchallenged evidence.

23. I also note that Dr White concluded, although the defendant has a risk of serious harm to others if he does not remain as a forensic patient, that the risk may be low. However, she observed that the potential impact could be quite catastrophic, as evidenced by the defendant’s history of impulsive and aggressive tendencies. Dr White also noted – and the defendant has made no suggestions to the contrary – that there are no other less restrictive means of managing the risk.

24. In all of those circumstances, I am satisfied on the material before me that if those facts and those opinions are accepted by a Court, they would establish that the defendant poses an unacceptable risk of causing serious harm to others and that his risk cannot be adequately managed by less restrictive means than making an extension order on an interim basis until the final hearing in the matter.

Orders

25. Accordingly, I am satisfied, for those reasons, that I should make the following orders:

1. Order, pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court of New South Wales on the results of those examinations within 60 days of today.

2. Order, pursuant to s 126(5)(b), that the defendant is to attend those examinations.

3. Order, pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing on and from 6 June 2023 when the current extension order expires for a period of three months.

4. Order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the court and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the registrar so as to allow them an opportunity to be heard in relation to the application for access.

26. With respect to the orders sought by the Notice of Motion filed in Court 29 May 2023, I make the following orders:

1. Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, upon the basis that the order is necessary to protect the safety of the defendant and that it is otherwise necessary in the public interest for the order to be made, that any evidence or other information which tends to reveal or otherwise identify, whether directly or indirectly, any current or future address of the defendant, including the local government area or adjacent local government areas of those addresses be suppressed and otherwise not published.

2. Order that that order is to apply throughout the Commonwealth of Australia.

3. Order that these orders are to remain in force for a period of 20 years from today.

4. Grant the parties liberty to apply.

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Decision last updated: 15 June 2023