Attorney-General of NSW v Mailes

[2021] NSWSC 823

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney-General of NSW v Mailes [2021] NSWSC 823

Hearing dates:

07 June 2021

Date of orders:

07 June 2021

Decision date:

12 July 2021

Jurisdiction:

Common Law

Before:

Garling J

Decision:

1. Order pursuant to ss 103, 121 and 127(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 2 years from 7 June 2021.

2.   Other ancillary orders made.

Catchwords:

MENTAL HEALTH – application for extension of status as a forensic patient – defendant made no submission against extending the forensic order – court satisfied that the defendant poses an unacceptable risk – extension granted for two years

Legislation Cited:

Mental Health Act 2007

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Attorney General for the State of NSW (P)
Graham Mailes (D)

Representation:

Counsel:
R Rodger (P)
C Goodhand (D)

Solicitors:
Crown Solicitors (P)
Legal Aid Commission of NSW (D)

File Number(s):

2021/33506

Publication restriction:

Order that access to the Court’s file in these proceedings be restricted such that access to a non‑party would be permitted only with the leave of a judgment of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Judgment

1. On 5 February 2021, the Attorney-General for NSW, as plaintiff, commenced proceedings by a Summons against the defendant, Mr Graham Mailes, seeking various orders pursuant to the Mental Health (Forensic Provisions) Act 1990.

2. The Mental Health (Forensic Provisions) Act 1990, has been repealed and replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This later Act is the operative legislation for these proceedings.

3. Various interim orders were made on 9 March 2021, and the proceedings were fixed for a final hearing on 7 June 2021.

Amended Summons

4. On the day of hearing, the Attorney-General sought and was granted leave without opposition from the defendant to file an Amended Summons, the effect of which was that the order for final relief which had been expressed in the initial Summons, was amended so as to read as follows:

“An order pursuant to ss 103, 121 and 127(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the Defendant be subject to an order for the extension of his status as a forensic patient for a period of two (2) years from the date of the order”.

5. Ancillary relief was also sought which was expressed to be in the following terms:

“Pursuant to s 7(a) and (b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) and on the grounds set out in ss 8(1)(c) and (e) of that Act, the defendant seeks the Court make the following orders:

‘(1)   A suppression order that prohibits or restricts the disclosure of information (by publication or otherwise) that could identify (directly or indirectly) the defendant's current address, future addresses, and the Local Government Areas relating to such addresses in the final orders, evidence in the proceedings and judgments.

(2)   A non-publication order that prohibits or restricts the publication of any evidence or information which could identify (directly or indirectly) the defendant's current address, any future addresses, and the Local Government Areas relating such addresses in the final orders, evidence in the proceedings and judgments.

(3)    These orders to apply throughout the Commonwealth.

(4)    These orders to remain in force for a period of 20 years from the date of the order.”

Hearing

6. At the hearing the plaintiff and the defendant were represented by counsel.

7. Counsel for the defendant when asked what the defendant’s attitude was to the orders being sought by the plaintiff, gave the court the benefit of her instructions. She said:

“Counsel: - On the basis that your Honour is satisfied of the statutory test that is the first limb, I'm instructed –

His Honour: What do you mean when you use the words ‘first limb’?

Counsel: The unacceptable risk of serious harm to others posed by the defendant. Then if your Honour were satisfied to the requisite standard of limb 1, the I am instructed not to oppose an order for a period up to 2 years.”

8. Counsel was asked whether she submitted that the Court should find “… that there were there is no unacceptable risk of harm…". She responded:

“No, your Honour. In my submission, whilst it's not conceded, I don't wish to be heard in respect of limb 1 except insofar as it were to become relevant to time under limb 2.”

9. A further exchange took place to clarify what counsel was saying. It was in the following form:

“His Honour: But time is now agreed, so I gather you don't propose to put any submission to the Court against a finding that the Court should be satisfied that there is an unacceptable risk of harm.

Counsel: That's right your Honour.”

10. The Court then proceeded to make the orders contained in the Amended Summons and reserved its reasons.

11. These are the reasons for the orders which were made.

Expert Opinion

12. The Attorney-General tendered reports of two experts, Dr Anthony Samuels, a consultant psychiatrist, and Professor Susan Hayes, a forensic psychologist. The defendant did not wish to cross-examine either of these experts, nor did the defendant challenge any of their opinions.

13. Dr Samuels and Professor Hayes were appointed by the Court as part of the preliminary hearing in accordance with the legislation, to provide expert reports.

Relevant Background History

14. On 23 March 1996, the defendant killed a young woman. He was 23 years old at that time. He was arrested and detained in custody a few days later. He was indicted and stood his trial in 1999, at the conclusion of which a jury found him guilty of the offence of murder. Later that year, he was sentenced to 25 years imprisonment with a non-parole period of 18 years commencing on the date of his arrest.

15. Prior to that sentence, several applications, raising the question of whether the defendant was fit to be tried, were heard and determined by the trial Judge. He was found to be fit to be tried.

16. In April 2002, the Court of Criminal Appeal upheld an appeal based on the defendant's fitness to be tried. It quashed the defendant's conviction and referred him to the Mental Health Review Tribunal (“the MHRT”).

17. On 31 July 2002, the MHRT determined that the defendant was unfit to be tried and was unlikely to become fit within 12 months.

18. The following year, a special hearing took place and a jury found that on the limited evidence available, the defendant had committed the offence for which he had been previously tried by the jury. Wood CJ at CL imposed a limiting term of 25 years commencing on the defendant's date of arrest and expiring on 27 March 2021. The defendant was ordered to be detained in a Correctional Centre.

19. On 27 May 2014, the defendant was granted conditional release. That order for conditional release was rescinded in November 2015 when the defendant absconded from his supervised accommodation and remained away from it for a period of five days. He was again conditionally released in August 2016, and presently lives in independent accommodation, being supported for 10 hours on each day.

Relevant Statutory Provision

20. The parties agreed that the Court was bound to apply the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Forensic Provisions Act”).

21. Section 122 of the Forensic Provisions Act is in the following form:

“122   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 Part 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 the patient ceases to be 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.”

22. Before an extension order under the Forensic Provisions Act can be made, this Court must be satisfied to a high degree of probability that Mr Mailes, who is a forensic patient, poses an unacceptable risk of causing serious harm to others if the order is not made.

Report of Dr Samuel

23. Dr Samuel concluded that the defendant had an underlying intellectual disability, as well as an associated hearing loss and speech impediment. He found that the defendant had features of Antisocial Personality Disorder with a tendency to impulsivity and aggression. Of the defendant he said:

“His Antisocial Personality Disorder and intellectual disability are chronic enduring conditions. His aggressive outbursts seem to be responding well to environmental and behavioural interventions. In addition, the medication that he is on which includes an atypical antipsychotic and an SSRI-type antidepressant, also have appeared to have reduced his propensity to mood disturbance, anger and aggression.”

24. Dr Samuel reviewed the defendant's historical and current risk factors: he reviewed his clinical risk factors and reviewed the extensive risk assessments which had taken place over many years whilst the defendant was in custody. Having undertaken that review he expressed this conclusion:

“My opinion is that he remains at a moderate risk of future violence or aggression but the current risk management strategies are appropriate and seemed to be effective.”

25. Dr Samuels was of the opinion that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient. He expressed these reasons for that conclusion:

“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.

The protective risk factors include living accommodation, regular contact with his relatives, the support of his case manager and other professionals up to 10 hours per day. In addition, if he remains abstinent from alcohol this is likely to reduce his risk of aggression.”

26. Dr Samuel supported the continuation of the forensic patient status of the defendant saying:

“I would strongly support the continuation of his forensic patient status as if his mental health were to deteriorate, he could then be returned to a specialised forensic unit. If [the defendant] became psychiatrically unwell he would be more difficult to manage in a general hospital psychiatric setting. Given the fact that he does not have a discrete DSM-5 mental disorder and even when displaying aggression and violent behaviours he may not be detainable within the terms of the Mental Health Act 2007. In addition, he may not receive the treatment he requires in a general hospital psychiatric unit.”

27. Dr Samuel could not see any other less restrictive means for managing the defendant. He was of the opinion that the current arrangements for management of the defendant were the least restrictive option available.

Report of Professor Hayes

28. Professor Hayes concluded that the defendant suffered from the mental conditions of Substance Use Disorder, which was in remission and Antisocial Personality Traits. She did not conclude that he was mentally ill person as defined under s 14 of the Mental Health Act 2007. She thought that the two mental conditions which she identified had been present for decades and could be considered chronic. She concluded that the defendant was mildly to moderately intellectually disabled, a condition which has been present since birth.

29. Professor Hayes was asked to express an opinion about the risk of the defendant causing serious harm to others if he ceased being a forensic patient. She referred to previous expert reports identifying various risk factors and indicated that she concurred with the views expressed by a psychiatrist, Dr Nicholas Burns, that the defendant had made positive gains over recent times. She went on to say this:

“However, his placement in a more independent living situation is recent; although he is very pleased that suitable, stable independent accommodation has been identified for him, in my opinion it is advisable for a period of time to elapse in order to allow support workers to assess how he is functioning in this independent living situation, and adhering to the other condition releases currently are outlined by the MHRT. His mental state is currently stable, but the past history indicates that he can be volatile when under stress.”

30. Professor Hayes went on to express this conclusion:

“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.”

31. Professor Hayes described the risk factors in this way:

“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.”

32. Professor Hayes described the current arrangements for the care of the defendant as being the least restrictive and most effective support and risk management strategies that could exist.

33. She concluded in this way:

“It is my opinion the continuation of [the defendant’s] forensic patient status for a relatively short period of time may be adequate to manage the risk of [the defendant] causing serious harm to others. When asked about continuation of his status as a forensic patient, [the defendant] said that it made very little difference one way or the other, and he expected to be a forensic patient for a while longer. Whilst the present systems are in place and working effectively, this may be the least restrictive alternative.”

Other Expert Opinion

34. The Court has had the benefit of other expert opinion, including that of Dr Nicholas Burns, the Clinical Director of the Forensic Mental Health Services in the Local Health District where the defendant presently lives. He says this in a report of 4 November 2020:

“[The defendant] has in the past intermittently resorted to drug and alcohol use in times of stress. This further diminishes his coping skills and can heighten the risk to himself as well is to others.

In addition to his personal needs, [the defendant] has displayed a recurrent pattern of aggressive and threatening behaviour in circumstance of stress or frustration. As such, if he is placed in circumstances where he has insufficient support, it is more likely that he'll respond with aggression. As such the risk to the community is likely to increase.”

35. In a report of January 2021 to the MHRT, Dr Burns wrote:

“I feel that [the defendant] can be managed safely in the community, with the current level of support and supervision. He has developed a good rapport with his mental health case manager and gets on well with most of his … support workers. There have been prolonged periods of time when he has managed well with his current level of support. If this level of support reduces, there is a high chance of the risk of future violence will increase accordingly.

With regard to the current conditions of his release, I recommend that no changes be made. I feel that he can be managed safely in the community without unduly increasing the risk to the community or [the defendant] himself under the current condition.”

Mental Health Review Tribunal

36. The last hearing of the MHRT, which took place prior to the hearing of these proceedings, occurred on 27 January 2021. In its determination, which was delivered on 16 February 2021, the Tribunal concluded that the defendant remained unfit to be tried for any offence and that it should undertake a further review in six months’ time.

37. A further review was undertaken by the MHRT on 24 March 2021, in which it determined that the defendant could move from his then supported accommodation which provided live-in support 24 hours a day 7 days a week, to an independent form of accommodation with the provision of up to 10 hours of support each day. This was the extent of his support of the time the proceedings were brought before the Court.

Discernment

38. In considering whether the Court is satisfied that it should make the order, in circumstances where this is a civil case, the Court is entitled to take into account the attitude shown by the defendant through his counsel.

39. He made no submission at all against a conclusion by the Court that his status as a forensic patient ought be extended for a period of 2 years.

40. The defendant merely submitted that the Court should satisfy itself, without opposition from him, that the requisite threshold test, namely that the Court should be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient, was satisfied.

41. I was so satisfied.

42. It seems to me that the opinions of the two principal experts, Dr Samuels and Professor Hayes, do not disagree with each other. They conclude that the defendant is at a continuing risk of causing serious harm to others. In circumstances where, albeit some decades ago, he has killed another human being, they conclude that an extension order for the defendant’s status as a forensic patient ought to be made.

43. Both experts draw attention to the fact that the current care and support, and living accommodation arrangements, are essential to the minimisation of the risks which the defendant poses. Having regard to the need for the continuation of those arrangements, which are in place because of the status of the defendant as a forensic patient, I am abundantly satisfied to a high degree of probability that in the absence of such protective measures there is a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others, if an extension order is not made.

44. I next need to consider whether the arrangements under the current order are the least restrictive available. I am satisfied that they are. Both of the experts said that they were and there is simply no reason to reject their opinions which I accept.

Balance of Statutory Matters

45. In determining whether to make the extension order, in the absence of any articulated opposition, I note that I have had regard to each of the matters set out in s 127(2) of the Forensic Provisions Act. I regard the safety of the community as a factor of significant weight in the present circumstances. Having regard to the time which has passed, and all that has happened to the defendant in that time, I regard any remarks by either the sentencing Judge, or the judge who imposed the limiting term as having only a limited value in determining whether an external order should be made.

Summary

46. Accordingly, I was satisfied that the Court should extend the Forensic Order for a period of 2 years.

47. I note that I made orders to this effect on 7 June 2021, and that these are the reasons for my orders.

48. I also made ancillary orders with respect to non-disclosure.

Orders

49. I made the following orders:

1. Order pursuant to ss 103, 121 and 127(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 2 years from 7 June 2021.

2. Grant leave to the plaintiff to amend the relief sought in Order 3 of the summons so as to delete the number ‘3’ and insert the number ‘2’.

3. Order pursuant to s7 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.

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

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

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Decision last updated: 14 July 2021