Minister for Mental Health v A - [2017] NSWCA 288

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Minister for Mental Health v A [2017] NSWCA 288
Hearing dates: 27 September 2017
Decision date: 10 November 2017
Before: Beazley ACJ at [1];
White JA at [161];
Sackville AJA at [163]
Decision:
(1)   Remove the Mental Health Review Tribunal as a party to the appeal;

(2)   Dismiss the appeals against the determinations made by the Mental Health Review Tribunal on 15 December 2016, 3 February 2017 and 21 June 2017;
(3)   The appellant to pay the respondent’s costs in this Court.
Catchwords:
MENTAL HEALTH – determination by Mental Health Tribunal to grant conditional release of forensic patient – whether Tribunal misapplied ss 43(a) and (b) of the Mental Health (Forensic Provisions) Act 1990 (NSW)

PROCEDURE – whether Tribunal failed to set out reasons for determination – no express obligation to give reasons – obligation implicit in construction of s 77A – reasons adequate in this case
PROCEDURE – whether Minister entitled to adduce fresh evidence on appeal by way of rehearing
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 42, 43, 46, 47, 51, 52, 74, 75A, 76A, 77, 77A
Mental Health Act 2007 (NSW), s 140
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30
A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363
Attorney General for the State of New South Wales v XY [2014] NSWCA 466
Kostas v HIA Insurance Services Pty Limited (2010) ALR 228; [2010] HCA 32
Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Category: Principal judgment
Parties: Minister for Mental Health (Appellant)
A (Respondent)
Representation:
Counsel:
M Windsor SC; G Wright (Appellant)
P Griffin SC; N Evans (Respondent)
Solicitors:
Henry Davis York (Appellant)
NSW Legal Aid – Mental Health Advocacy Service (Respondent)

File Number(s): 2017/10970;2017/69771;2017/195003
Publication restriction: Yes
Decision under appeal

Court or tribunal:

Mental Health Review Tribunal

Date of Decision:

15 December 2016;
3 February 2017;
21 June 2017

Before:

15 December 2016: R Cogswell SC; M Giuffrida; L Houlahan; 3 February 2017: R Cogswell SC; E Parmegiani; S Woods; 21 June 2017: R Cogswell SC; S Spencer; F Cox

File Number(s):

F0783

Headnote

[This headnote is not to be read as part of the judgment]

The respondent is a forensic patient within the meaning of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Forensic Provisions Act). The Minister for Mental Health appealed against three decisions of the Mental Health Review Tribunal (the Tribunal) in respect to the respondent:

(1) A determination on 15 December 2016 granting the respondent conditional release, whereby he was discharged from the facility and transferred to 24 hour intensive residential support service accommodation.

(2) A determination on 3 February 2017 refusing to grant a stay of the Tribunal’s first determination.

(3) A determination on 21 June 2017 varying the conditions of the respondent’s conditional release, but otherwise affirming the order for conditional release.

In relation to the first appeal, the questions on appeal were:

(i) whether the Tribunal failed to set out the basis upon which it arrived at its determination;

(ii) whether the Tribunal misapplied s 43(a) of the Forensic Provisions Act;

(iii) whether the Tribunal misapplied s 43(b) of the Forensic Provisions Act.

Beazley ACJ (White JA and Sackville AJA agreeing) dismissed the appeal against all three determinations.

In the first appeal, Beazley ACJ (White JA and Sackville AJA agreeing) held:

In relation to (i)

(1) (by Beazley ACJ) There is no express statutory requirement in the Mental Health Act 2007 (NSW) or Forensic Provisions Act that the Tribunal give reasons for its determination. However, having regard to the proper construction of s 77A, on balance the Tribunal is required to give reasons: [52]-[56].

(2) (by Sackville AJA) The better view is that the legislation requires the Tribunal to give reasons: [168].

(3) The Tribunal needed to be satisfied of the matters specified in s 43(a) and (b) of the Forensic Provisions Act, and specify reasons why it was so satisfied. The Tribunal met this requirement by identifying the relevant risks associated with A’s conditional release and discussing proposals for ensuring that those risks were effectively controlled. [67]

In relation to (ii)

(4) On appeal, the Minister was entitled to rely on additional evidence that was not before the Tribunal when it made the order for conditional release. [109]

(5) The Minister did not demonstrate that the Tribunal misapplied s 43(a) either by reference to the evidence before it at the hearing in November, or when additional evidence that was before it in January is taken into account. The fact that there may be differences in opinion amongst experts does not justify a finding that conditional release should not be granted. [116]

In relation to (iii)

(6) The Tribunal did not err in finding that care of a less restrictive kind was reasonably available to the respondent. There is nothing in this challenge having regard to the strict conditions imposed by the Tribunal. [126]

In the second appeal, Beazley ACJ (White JA and Sackville AJA agreeing) held:

(7) It is not necessary to determine the appeal against orders refusing the stay application in circumstances where there was no error in the Tribunal’s first determination.

In the third appeal, Beazley ACJ (White JA and Sackville AJA agreeing) held:

(8) The question for the Tribunal on this review was whether the respondent was being adequately managed in the accommodation, in a context where the Tribunal had previously been satisfied of the requirements in s 43. The Tribunal did not err in being satisfied that there were reasonable grounds for believing that the core, treatment and control of the respondent were sufficient for the protection of the respondent and others from serious harm: [156]-[157].

Judgment

BEAZLEY ACJ:

General Introduction

The respondent (to whom I refer as A) is a forensic patient within the meaning of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Forensic Provisions Act). That Act makes provision in respect to criminal proceedings involving persons affected by mental illness and other mental conditions and the care, treatment and control of such persons.
The Mental Health Review Tribunal (the Tribunal) is constituted by the Mental Health Act 2007 (NSW), s 140 and has the powers conferred by it under the Mental Health Act or any other law. The provisions of the Forensic Provisions Act are discussed in detail below. However, by way of overview, the legislation provides for decisions to be made by the Tribunal for the continuing care and treatment of a person who is a forensic patient. Section 46(1) of the Forensic Provisions Act requires that the Tribunal review a forensic patient at six monthly intervals. Provision is made for other reviews, which are not presently relevant.
Section 77A of the Forensic Provisions Act provides for appeals from any determination of the Tribunal. There are presently three appeals before the Court from determinations made by the Tribunal in respect of the respondent on 15 December 2016, 3 February 2017 and 21 June 2017. The appeals have been brought by the Minister for Mental Health (the Minister) as delegate of the Minister for Health in respect of the functions, powers, duties and authorities of the Minister for Health in relation to ss 46(2), 77A(2) and 77A(5).
In the notices of appeal in respect of the 15 December 2016 and 3 February 2017 determinations, the Tribunal has been joined as the first respondent. In my opinion, the joinder of the Tribunal was erroneous, as was pointed out to the Minister’s legal representatives both during an earlier hearing of the appeal and during the hearing of the appeals subject of this determination. The Tribunal was the body that made the determinations that are subject of the appeals. On an appeal from a determination of the Tribunal, the orders that may be made are specified in s 77A(9). In brief, the Court of Appeal may affirm the decision, make the determination the Tribunal should have made, or remit the matter to the Tribunal. Any order made by the Court is not made against the Tribunal. It is made in respect of the Tribunal’s determination.
In circumstances where the Court is not exercising its supervisory jurisdiction, there is no basis or warrant for the Tribunal to be a party to the appeal and should be removed as a party. I propose an order to that effect. For that reason, I refer to A as the respondent on the appeal.

Legislative provisions

As the jurisdiction and the powers of the Tribunal are statutorily based, it is convenient at the outset to refer to the relevant statutory provisions of the Forensic Provisions Act. The Forensic Provisions Act provides, relevantly, as follows:

“39   Effect of finding and declaration of mental illness
(1)   If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.
…
(3)   As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.
…
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.
43   Criteria for release and matters to be considered by Tribunal
The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that:
(a)   the safety of the patient or any member of the public will not be seriously endangered by the patient’s release, and
(b)   other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care.
…
46   Further reviews by Tribunal of forensic patients
(1)   The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time.
(2)   The Tribunal must review the case of a forensic patient if requested to do so by the Minister for Health, the Attorney General, the Minister for Justice, the Minister for Juvenile Justice, the Secretary or the medical superintendent of the mental health facility in which the patient is detained.
…
47   Orders and recommendations on further Tribunal reviews
(1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to:
(a)   the patient’s continued detention, care or treatment in a mental health facility, correctional centre or other place, or
(b)   the patient’s release (either unconditionally or subject to conditions).

…
74   Matters for consideration
Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part:
(a)   whether the person is suffering from a mental illness or other mental condition,
(b)   whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm or the protection of others from serious harm,
(c)   the continuing condition of the person, including any likely deterioration in the person’s condition, and the likely effects of any such deterioration,
(d)   in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person’s release,
(e)   in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody.
…
76A   Other matters relating to Tribunal functions
…
(2) The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to any of the following:
(a)   the possible release or grant of leave of absence to a forensic patient,
(b)   the recommendation to revoke an extension order in respect of a forensic patient,
(c)   the review of a patient under section 68 (2).

…
(4)   An order by the Tribunal under this Act must be in writing.
…
77   Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
77A   Appeals against Tribunal decisions
(1)   A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court:
(a)   on a question of law, or
(b)   on any other question,
other than a determination referred to in subsection (4).

(2) The Minister for Health may appeal to the Supreme Court from any determination of the Tribunal in a proceeding before the Tribunal under this Act, as of right:
(a) on a question of law, or
(b) on any other question,
other than a determination referred to in subsection (5).

…
(4)   A person may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of the person, by leave of the Court of Appeal:
(a)   on a question of law, or
(b)   on any other question.
(5) The Minister for Health may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right:
(a)   on a question of law, or
(b)   on any other question.

…
(7) An appeal under this section must be made not later than 28 days:
…
(b) in the case of an appeal by the Minister for Health … of written notification to the Minister … by the Tribunal of the reasons for an order determining proceedings,
unless the Court extends the period within which the appeal may be made.

(8)   An appeal under this section is to be made subject to and in accordance with the rules of the Court.
(9)   After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question:
(a)   make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or
(b)   remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

…
(11) If a party has appealed under this section to the Court against a determination of the Tribunal, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings.
….”

The background

The respondent became a forensic patient on 30 October 2002, when he was found not guilty by reason of mental illness of four counts of aggravated sexual assault of a child between the age of 10 and 16. Pursuant to that finding, the respondent was detained in a mental health facility (the facility) pursuant to s 39(1) of the Forensic Provisions Act.
The Forensic Provisions Act, Pt 5, Div 2, Subdiv 3 provides for the termination of a person’s status as a forensic patient. Section 51 provides that a person ceases to be a forensic patient if the Tribunal orders the person’s unconditional release, or if released conditionally, upon the expiry of the time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with. Section 52 provides a number of additional circumstances in which a person’s classification as a forensic patient may be terminated, none of which apply to the respondent, and accordingly are not presently relevant.
It was not in dispute that the respondent was a forensic patient at the time that each of the determinations subject of the appeals was made. The respondent thus fell to be dealt with in accordance with the provisions of Pt 5, Div 2, Subdiv 1, “Review of forensic patients by Tribunal”, ss 43-48 and as required by s 46(1) became subject to a review by the Tribunal at least every six months. Pursuant to those reviews, the respondent has been either detained in a mental health facility or has been the subject of conditional release.
Since becoming a forensic patient, the respondent has been convicted of a number of other offences. He has also exhibited a range of behaviours. On occasions he has demonstrated improved conduct but on other occasions he has engaged in inappropriate behaviour, including the apparent grooming of young girls on the internet and aggressive behaviour towards staff of the facility in which he has been detained. In this regard, the respondent’s criminal and other behaviour, both positive and negative, has been determinative of the nature and extent of the restraint on his liberty that has been imposed from time to time by the determinations made by the Tribunal.
The respondent is presently on conditional release. The determination for his conditional release was made by the Tribunal on 15 December 2016 (the first determination), following a hearing on 9 November 2016 whereby the respondent was discharged from the facility and transferred to a 24 hour a day intensive residential support service accommodation (the accommodation), subject to various conditions.
The Minister sought a stay of the order made on 15 December 2016. That application was declined by the Tribunal on 3 February 2017 (the second determination). The last review determination in respect of the respondent was made on 21 June 2017 (the third determination), following a hearing on 30 May 2017. In its determination made on 21 June 2017, the Tribunal, pursuant to s 47(1) of the Forensic Provisions Act, discharged those conditions imposed on 15 December 2016 that were no longer relevant to the respondent’s conditional release. The respondent’s conditional release otherwise continued.
The Minister appealed against each of the determinations made on 15 December 2016, 3 February 2017 and 21 June 2017. The appeal was brought pursuant to s 77A(5) in respect of the determinations made on 15 December 2016 and 3 February 2017. The appeal against the determination made on 21 June 2017 was brought pursuant to s 77A(2) and 77A(5). It should be noted that appeals brought pursuant to s 77A(5) are to the Court of Appeal and that appeals brought pursuant to s 77A(2) are assigned to the Court of Appeal in accordance with the Supreme Court Act 1970 (NSW), s 48 as the presiding member of the Tribunal was a District Court judge.
There is a question whether the determination made on 21 June 2017 was “a determination … as to the release of a person” within the terms of s 77A(5). However, as the appeal can be properly brought under s 77A(2), nothing turns on this.

Tribunal’s review process and reasons: introduction

In order to understand the Tribunal’s reasons and the Minister’s challenge to the Tribunal’s determination, it is helpful to consider the manner in which a review proceeds and the Tribunal’s approach to its reasons.
A forensic patient may be legally represented at a review, as may the Minister, if the Minister appears. The Minister has a right of appearance or may make submissions on any application for release: s 76A(2). There is also a right of appearance on a review of a patient under s 68(2) where a person has been apprehended for breach of a condition. That provision is not presently relevant. There is no other provision in the Forensic Provisions Act granting to the Minister a right to appear or make submissions.
The Tribunal conducts a hearing at which it receives written reports, usually by way of updates of the forensic patient’s current position, including of the forensic patient’s conduct since the last review and the patient’s current mental health. Oral evidence is also given and those providing reports or giving oral evidence may be, and it would appear usually are, questioned by the Tribunal members and the legal representatives for the forensic patient and for the Minister, if present.
It is apparent from the reasons in respect of each determination that the Tribunal has developed a practice whereby a forensic patient’s history, including a notation of the index event whereby the person became a forensic patient, the person’s prior history, and the person’s history as a forensic patient, including the position on each review, a summary of the evidence and the determinations made, is documented and annexed to each determination as Annexure A. Of necessity that means that Annexure A is constantly updated. In the respondent’s case, Annexure A recorded his history including that prior to 16 December 2016, the respondent had been granted supervised day leave, which had been extended for up to a month at a time, at the accommodation which was being proposed for him for the purposes of conditional release, should that be ordered.
As is apparent from the reasons in respect of the three determinations that are the subject of the appeal, the Tribunal’s practice is to summarise the evidence in significant detail, make observations as to the evidence in its reasons, refer to Annexure A as may be appropriate and then to state the Tribunal’s conclusion and its determination.

The first appeal: determination made 15 December 2016

On 9 November 2016, the Tribunal conducted a six month review of the respondent pursuant to the Forensic Provisions Act, s 46(1). The Tribunal observed at the outset of its reasons that this was the thirty-fourth review of the respondent and that his treating psychiatrist, Dr Burns, had signed a notice of intent seeking his conditional release.
The Minister, who appeared at this hearing and was represented by counsel at the hearing pursuant to s 76A(2), opposed the respondent’s conditional release on the basis that the Tribunal should not be satisfied under either s 43(a) that the safety of any member of the public would not be seriously endangered by the respondent’s release, or of the matters specified in s 43(b). The Minister’s opposition was based on four matters: the respondent’s previous breaches of conditions when he had been on conditional release; his risk of recidivism; his attitude towards and lack of insight into his offending behaviour; and the lack of psychoeducation available to him.
The evidence before the Tribunal as it summarised in its reasons given on 15 December 2016 was as follows.
In his report to the Tribunal, Dr Burns, the respondent’s treating psychiatrist, diagnosed the respondent with paedophilia, possible bipolar 1 disorder and alcohol abuse/dependence and noted the respondent’s intellectual disability and antisocial personality traits. Dr Burns considered that his mental state had become much more settled with regular depot antipsychotic medications. He stated that continued management with “regular antipsychotic medication” was necessary. Dr Burns expressed the opinion that the medication should be administered “parenterally to avoid the risk of non-compliance”.
Dr Burns considered that there were two key factors relevant to the degree of risk that the respondent posed to the community, first, his strong psychopathic personality traits and secondly, his intellectual disability. Dr Burns considered that there was also evidence that the respondent might suffer from a significant mood disorder with episodes of mania and depression. Nonetheless, Dr Burns was of the opinion that the respondent could be safely managed in the community, observing that the respondent’s extensive trials of community leave over the previous 10 months had been successful. In Dr Burns’ opinion, key factors in ensuring community safety were supervision and monitoring, with conditions being imposed on any conditional release.
Dr Burns, in his oral evidence before the Tribunal, stated that the “critical factor” in the respondent’s case was the antipsychotic medication, which served to dampen his behaviour, as well as his demonstrated positive response to a structured environment, both in the facility and in the accommodation. Dr Burns expressed concern about a lack of “psychoeducation” for the respondent, which he said could assist “if done repeatedly”. Dr Burns did, however, express the view that if such a program were available he was not convinced that it would be useful to the respondent, because of his lack of motivation and his intellectual disability, which would affect his ability to engage with the program. In Dr Burns’ opinion, the most important factor was for the respondent’s offensive behaviour to be reduced by “close monitoring and supervision”.
The Tribunal commented upon Dr Burns’ evidence, observing that it was clear from his report that there were reasonable grounds for believing that the respondent’s control and treatment were necessary for the protection of others from serious harm.
A Clinical Nurse Consultant with the facility, also supported the respondent’s conditional release into the accommodation. She was of the opinion that the respondent’s clinical risk of reoffending was low in the facility, which was a controlled all-male medium secure rehabilitation unit. She also linked the respondent’s low risk of re-offending to the fact that he was kept in line of sight of staff when being escorted and supervised.
The team leader of the Community Justice Program (CJP) informed the Tribunal that a sexualised behaviour program suitable for a person with a history of serious offending behaviour and an intellectual disability was not presently available, but that it was hoped that such a program would be available the next year. A CJP manageability assessment had been undertaken which indicated that the respondent presented risks, but considered that they could be managed by the level of behavioural support and consistent supervision provided at the proposed accommodation.
Evidence was also given by the leader of the team in the accommodation. He said that the respondent’s comments about women were “quite isolated” and that he had “managed to moderate his behaviour and act appropriately”. He said that there were fewer occasions when it was necessary to speak to the respondent about respect and that he had been responsive when spoken to.
Dr Sunny Wade, psychiatrist, and Dr Reshin Maharaj, Clinical Nurse Consultant from the NSW Community Forensic Mental Health Service (CFMHS), acknowledged that the respondent fell into “a group of people who cause moderate concern for sexual recidivism in the short to medium term in his current environment” and that that risk would increase in the absence of high-level supervision and monitoring. However, they were of the opinion that the respondent’s own safety and that of the public was unlikely to be seriously endangered by his conditional release, provided a risk management plan was adhered to. Two of the risk management recommendations made by Dr Wade and Dr Maharaj were to supervise the respondent one-on-one when he entered the community and for the respondent to have at least monthly face-to-face contact with his psychiatrist.
The Tribunal expressed the view that the proposal made by Dr Wade and Dr Maharaj “may represent … the limits of what is possible” to address the concerns that had been expressed by Mr Tranter, social worker with the Newcastle Mental Health Service Rehabilitation team. Mr Tranter did not support the respondent’s conditional release. In his report to the Tribunal, he expressed concerns about a series of behavioural issues. In particular, Mr Tranter had observed that the respondent had been unwilling “to engage in any change around [his paedophilia] or display remorse for his actions”. Mr Tranter found it “difficult to gauge accurately” the likelihood of the respondent reoffending. He considered that this was compounded by the respondent’s refusal to discuss it. In Mr Tranter’s assessment, there remained “a medium risk” that the respondent may reoffend. He was also concerned about inconsistencies in reports about the respondent’s “deceitful behaviour” and reluctance to change.
An incident of concern which featured in the hearing related to the second respondent’s possession of a pair of “bunny ears”. Dr Burns, in oral evidence on 9 November 2016, said that staff at the facility had found “toy bunny ears in [the respondent’s] room”. Dr Burns indicated that the respondent explained “he had found them on the grounds, that a staff member was with him at the time [and] the staff member consented to him keeping them”. However, Dr Burns noted that the staff member in question had not been identified.
Dr Wade and Dr Maharaj also referred to the “bunny ears” in their report, noting that:

“… [the respondent] was noted to give conflicting stories about the bunny ears leading staff to question whether [the respondent] had perhaps given gifts to children in the past, as part of his grooming behaviour.”

The Tribunal, having referred to the evidence stated its conclusion as follows:

“Despite the presence of some risk in providing conditional release for [the respondent], the statute (section 43) provides as a threshold that the Tribunal must be satisfied that ‘the safety of the patient or any member of the public will not be seriously endangered by the patient’s release’. There are obvious risks associated with [the respondent] and the Minister’s concerns are appropriately articulated and well based. However the conditions of [the respondent’s] conditional release effectively put him under house arrest. As Dr Burns emphasised the key factors for [the respondent] are close monitoring and supervision of him. A majority of the Tribunal thought that both these are present to the extent that the safety of members of the public ‘will not be seriously endangered’ by his conditional release. A majority of the Tribunal was also satisfied that other care of a less restrictive kind consistent with safe and effective care was appropriate and reasonably available to [the respondent].” (emphasis in original)

The Tribunal determination was a majority decision. Dr Giuffrida, psychiatrist, did not agree that he could be satisfied that conditional release was appropriate to the extent required by the provisions of the statute.

Grounds of challenge to the first determination

The Tribunal’s decision was said to be made as the review of a forensic patient pursuant to s 46(1) of the Forensic Provisions Act. The decision recorded numerous orders and conditions, including the following:

“1. [A] is to be discharged from [the facility] as soon as practicable following the issuing of this order, on a date to be determined by the Medical Superintendent having regard to [A]’s care and treatment needs including, but not limited to:
a. his mental state;
b. the availability of accommodation;
c. the availability of services in the community upon release.
2. If [A] is not discharged within 3 months of the issuing of the order, the Tribunal will hold a further review to consider the reasons for the delay.”

On the same day as it published its decision, the Tribunal made what it described as an Order for Conditional Release pursuant to s 47(1)(c) of the Forensic Provisions Act. The Order for Conditional Release incorporated the same orders and conditions as the decision, except that it commenced with the following words:

“Having reviewed [A] on 9 November 2016, pursuant to s. 46 and 47 of the Mental Health (Forensic Provisions) Act 1990, the Tribunal orders that [A] remain released, but that conditions of release be varied as followed: …”

At an earlier hearing, the Court as then constituted pointed out to the parties that there appeared to be a disparity between the terms of the Tribunal’s discussion and the terms of the Order for Conditional Release. This prompted the Minister’s solicitors to write to the Tribunal asking “which of the documents correctly reflects the decision of the Tribunal”.
The Registrar of the Tribunal advised that the first paragraph of the Order for Conditional Release contained an error. The Registrar further advised that the opening words of the Order for Conditional Release should have read as follows:

“Having reviewed [A] on 9 November 2016, pursuant to s.46 and 47 of the Mental Health (Forensic Provisions) Act 1990, the Tribunal orders that [A] be released with the conditions of release as follows: …”

The Registrar said that the corrected order is consistent with the determination recorded by the Tribunal in its reasons.

There may be a question as to the precise status of the Registrar’s correction. However, the parties were content to proceed on the basis that the Registrar’s correction to the Order for Conditional Release accurately reflects the Tribunal’s reasons and decision.
The Minister challenged the Tribunal’s Order for Conditional Release on the following bases:

The Tribunal misapplied s 43(a) of the Forensic Provisions Act: grounds 1, 2, 3 and 6;

The Tribunal misapplied s 43(b) of the Forensic Provisions Act in that it erred in finding that a care of a less restrictive kind, consistent with safe and effective care, was reasonably available to the respondent: ground 4;

The Tribunal did not set out the basis upon which it arrived at its determination: ground 7.

Whether the Tribunal failed to set out the basis upon which it arrived at its determination

It is convenient to deal with the third issue first, as on the approach taken by the Minister, it was the absence of any or adequate reasons in relation to the matters of which the Tribunal was required to be satisfied for the purposes of s 43(a) that demonstrated that the Tribunal had misapplied the section.

Minister’s submission on the adequacy of reasons

The Minister submitted that in in order to satisfy the test in s 43(a), the Tribunal was required to be satisfied of a negative, namely, that the safety of the public will not be seriously endangered by the patient’s release: Attorney General for the State of New South Wales v XY [2014] NSWCA 466. The Minister submitted that to apply that test, the Tribunal needed to identify the nature of the harm which might flow from the respondent’s release and the chance of that harm eventuating. The Minister contended that apart from the short statement in its conclusion, the Tribunal did not do that.
The Minister submitted that although in its reasons the Tribunal set out in some detail the evidence relating to the respondent, when it came to make its determination, it failed to deal with whether there was a risk of safety to the respondent or to any member of the public, failed to assess the gravity of the harm to any member of the public and failed to give reasons for adopting the course it did.
The Minister further submitted that the Tribunal’s determination was not merely a six monthly review, but rather was an application for conditional release, such that a more thoroughgoing analysis was required by the Tribunal of the risk that the respondent presented to any member of the public. The Minister submitted that the Tribunal failed to address the respondent’s risk of sexual recidivism, aggressive behaviour and violence and his “other disorders or conditions”. In the latter respect, the Minister pointed out that the respondent “has a very low IQ which affects his ability to understand and/or appreciate the risks that he causes to members of the community”. In this regard, the Minister referred to the respondent’s risk to children and his ability to groom others.
The Minister submitted that it was not sufficient for the Tribunal to merely refer to “obvious risks associated with [the respondent]”, as it did in its conclusion, without expressly addressing the specific risks that had been identified. Put another way, the complaint was that it was not apparent from the Tribunal’s conclusion what the “obvious risks” were to which reference was being made. The Minister also submitted that the Tribunal’s failure to explain why it did not accept the recommendation of Mr Tranter, who opposed the order for conditional release, rather than the opinion of Dr Burns, meant that the Tribunal failed to have “proper regard for” or “proper consideration for” any member of the public.
The Minister also complained that there was no indication in the Tribunal’s reasons as to the progress, if any, that the respondent had made in rehabilitation, and contended that there was no mitigation in his risk of offending against children. The Minister submitted that the effect of the evidence was that the only means of managing his risk was “sequestration and rigorous supervision”. In support of this submission, the Minister relied upon a passage in the transcript of the hearing before the Tribunal in which the respondent’s solicitor had referred to the need for “rigorously enforced” external controls.

Respondent’s submissions on the adequacy of reasons

The respondent submitted that if there was an obligation on the Tribunal to give reasons for determination, that it had done so. In this regard, the respondent pointed out that the Tribunal was required pursuant to s 46 to conduct a six-monthly review of a forensic patient. He submitted that the Tribunal had a heavy workload and a review was conducted on the basis of the history of the individual forensic patient accumulated by way of a continuing record and recorded in Annexure A annexed to the reasons. The Tribunal had also set out in a sufficiently comprehensive manner the evidence that had been adduced at the hearing.
The respondent accepted that the Tribunal’s conclusion did not fully expose its reasons for its determination but submitted that, when its conclusion was read, together with the conditions imposed, and its characterisation of those conditions as being akin to house arrest, in circumstances where it had laid out the respondent’s history and the evidence relevant to this particular application, it was apparent why the Tribunal had come to its determination and ordered the respondent’s conditional release.

Consideration: adequacy of reasons

The Minister’s submission that the Tribunal failed or failed sufficiently to articulate reasons as to why it had determined that it was appropriate to make a conditional release order raised a preliminary question as to whether there was an obligation to give reasons. The Minister’s submission assumed that there was such an obligation.
There is no express statutory requirement in either the Mental Health Act, under which the Tribunal is constituted, or the Forensic Provisions Act that the Tribunal give reasons for its determinations. The Mental Health Act, s 160(2)(h) authorises regulations to be made “for making written reasons for decisions or determinations of the Tribunal available”. However, no regulations have been made.

There is no common law duty on a statutory Tribunal to give reasons: Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43. Accordingly, if there is an obligation on the Tribunal to give reasons, it must be found having regard to the proper construction of the Forensic Provisions Act.
Section 77A(7) prescribes a time limit for making an appeal which, in the case of the Minister, must be 28 days of written notification of the reasons for an order determining proceedings. Section 76A(4) provides that an order by the Tribunal under the Forensic Provisions Act must be in writing but makes no reference to the giving of written reasons. Thus, although there is no express statutory provision that requires that the Tribunal give reasons for its determination, in writing or otherwise, such an obligation is arguably implicit, given that an order of the Tribunal under the Forensic Provisions Act may be subject of an appeal and further given that the time limit in which the Minister may bring an appeal is based upon the time at which written notification of the reasons for the order determining the proceedings.
Another possible view is that there is no such obligation unless the Minister requests that written reasons be given. Support for this view is arguably found in the fact that there is an express requirement for the Tribunal’s order to be in writing and no express requirement for reasons to be in writing. However, there is no provision which authorises a request for reasons or imposes an obligation to give reasons should a request be made.
On balance, therefore, I am of the opinion that the Tribunal has an obligation to give reasons. In any event, reasons were given in this case and even on the alternative view to which I have referred, it is likely that reasons were required in this case.
That then raises the question of the content of the reasons for the obligation to be satisfied. In Wingfoot, the High Court was concerned with the obligation of a Medical Panel to give reasons for the purposes of the Accident Compensation Act 1985 (Vic), s 68(2). After pointing out that it was inutile to draw on general observations as to the purpose to be served by reasons and on the standard of reasons required in other statutory contexts, the High Court observed, at [44], that the standard required was to be determined as a matter of statutory construction and that where there was no statutory prescription, “that standard can be determined only by a process of implication”.
The Court, at [46], considered that in that case there were two considerations of particular significance. The first was the nature of the function performed by a Medical Panel in forming and giving an opinion on a medical question referred to it. The second was the objective, within the scheme of the Act, requiring the Medical Panel to give a written statement of reasons for that opinion.
Having regard to the function of the Medical Panel, which was to form and give its own opinion on the medical question referred to it, the Court stated, at [48], that:

“What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”

In this case, in the determination of 15 December 2016, the Tribunal was dealing with an application for conditional release and was thus required to be satisfied of the matters specified in s 43(a) and (b). Accordingly, the Tribunal needed to specify the reason or reasons why it was so satisfied.
In dealing with the reports that were before the Tribunal and under the heading “present circumstances”, the Tribunal referred to Dr Burns’ opinion that:

“… there were two key factors ‘that influence the degree of risk that [the respondent] poses to the community, these being strong psychopathic personality traits, and his intellectual disability’”,

as well as the “emerging evidence” of a “significant mood disorder, with episodes of mania and depression”.

In the same section of the report, the Tribunal referred to Mr Tranter’s assessment that there were risks around the respondent’s sexual recidivism and that there was a “medium risk” that the respondent may reoffend. The Tribunal also referred to the risk identified by Dr Wade and Dr Maharaj of “sexual recidivism” that would “increase significantly” in the absence of high level supervision and monitoring.
In the section of the report entitled “The hearing”, the Tribunal identified the Minister’s opposition to the respondent’s conditional release and the reasons for that opposition. The Tribunal referred to evidence given at the hearing, including evidence of continuing concerns as to the respondent’s behaviour, as well as to views as to the respondent’s positive response when made aware of inappropriate behaviour, and Dr Burns’ opinion that the respondent had responded well in a very structured environment.
The Tribunal found that there were “reasonable grounds for believing that [the respondent’s] care, control and treatment is necessary for the protection of others from serious harm”: see s 74(b). Accordingly, the commencing point for the Tribunal’s consideration was that the respondent in fact posed a risk to others. It is apparent from the Tribunal’s overview of the evidence that there was no question that the relevant risks to the safety of the community arose from the respondent’s sexual recidivism and psychopathic personality traits together with his low intellectual functioning.
Given that risk, the question for the Tribunal under s 43(a) was whether it was satisfied that the safety of any member of the public would not be seriously endangered by the patient’s release. Mr Tranter, the social worker at the Mental Health Service, opposed the respondent’s conditional release. Otherwise, the evidence was all to the same effect, namely, that the degree of risk of re-offending that the respondent posed depended on the nature and extent of the supervision and monitoring to which he was subject.
The Tribunal, in its conclusion, stated that the “threshold” requirement in s 43(a) was that it must be satisfied that “the safety of the patient or any member of the public will not be seriously endangered by the patient’s release”. The Tribunal then noted that there were “obvious risks associated with the respondent”. Those risks were the risks identified earlier in the reasons and about which there was no dispute. The real question for the Tribunal was whether those risks could be managed so that it could be satisfied of each of the s 43(a) and (b) factors. The high level of supervision and monitoring that all witnesses accepted were necessary were specified in the conditions. In my opinion, the Minister’s submission that the conditions were inadequate to enable the Tribunal to be satisfied so that any member of the public will not be “seriously endangered” should be rejected.
Once it is accepted that the Tribunal’s reasons identified the relevant risks, and that the Tribunal discussed the proposals for ensuring that those risks were controlled – to the extent that the effect of the conditions to be imposed would put the respondent under effective “house arrest” – and that, by majority, the Tribunal expressed its satisfaction that the close monitoring and supervision of the respondent were such that the safety of the public “will not be seriously endangered” by his conditional release, the Minister’s contention that the Tribunal had failed to set out the basis upon which it had arrived at its determination must be rejected. In my opinion, the reasons why the Tribunal came to its determination are clear. It was not necessary for the Tribunal to engage in the somewhat painstaking process for which the Minister contended.

Did the Tribunal misapply s 43(a) of the Forensic Provisions Act?

Once it is accepted that the Tribunal’s reasons set out in sufficient detail the evidence such that the relevant risks that the respondent posed were apparent and that provided there were stringent conditions of monitoring and management imposed as had been proposed by the various medical and other witnesses, it is apparent that the Tribunal “was satisfied that the safety of the [respondent] and any member of the public will not be seriously endangered by the [respondent’s] release” and why it was so satisfied.
However the Minister submitted that the Tribunal’s determination that s 43(a) was satisfied was against the weight of the evidence. The Minister referred to ten factors which she said supported a finding that the respondent would be willing and likely to sexually re-offend if circumstances permitted. Those factors were:

“i.   Only continuous one to one supervision will inhibit [the respondent’s] offending. His risk of sexual reoffending increases significantly in the absence of a high level of supervision and monitoring …
ii.   He dismisses the presence of any psychiatric condition and is unable to identify warning signs for the re-emergence of sexual recidivism or psychotic symptoms …
iii.   He engages in deceitful behaviour and shows a reluctance to change …
iv.   He is unwilling to engage in any treatments to address his offending, show any remorse or discuss his offences …
v.   While anti-psychotic medication has quelled day to day aggressive behaviours, there is no evidence that his interest in sexually offending against children has mitigated …
vi.   Should he be released, the burden of supervision falls almost entirely on the … staff who run the accommodation facility, who are responsible for a number of residents …
vii.   Mental health oversight falls to a case manager, with whom [the respondent] is ‘guarded’ and who opposes conditional release being granted, and a psychiatrist who he will see once a month …
viii.   Due to [the respondent’s] reluctance to engage in any psychoeducation, those mental health professionals do not have the benefit of any insight from a forensic psychologist or the outcomes of any sexual offenders’ program …
ix.   A toy (‘bunny ears’) and female underwear were found in his bedroom and the accommodation supervisors were unable to explain how he got them …
x.   Should he be released, the available supervision would not be adequate to contain risky behaviours …”

The respondent submitted that the Tribunal addressed the “obvious risks” associated with A’s release, and considered the nature of the harm which might flow from the release and the chance of the harm eventuating. In specific response to each of these factors the respondent made the following submissions.
First, the fact that the respondent’s risk of sexual offending increases significantly in the absence of a high level of supervision and monitoring is not inconsistent with a finding that s 43(a) is satisfied. Under the conditions proposed, and which were imposed, the respondent would remain under constant line of sight supervision at the accommodation, except when in his bedroom at night, when he would be observed hourly and an alarm would sound if a door was opened. In this regard, there was evidence before the Tribunal that there had been no previous difficulties in retaining line of sight supervision of the respondent.
Secondly, in response to the Minister’s submissions that the respondent was reluctant to acknowledge his psychiatric condition, reluctant to change and reluctant to engage in psychoeducation, the respondent submitted that evidence demonstrated that the respondent was compliant in taking his medication and that there had been a reduction in his romantic or sexual interest in women and a marked reduction in his flirtation with female staff members.
Thirdly, the respondent submitted that the evidence demonstrated that the respondent was exhibiting a decreased sexual interest in children.
Fourthly, the accommodation has a maximum capacity of five residents, who are managed by two staff during the day and one staff member overnight.
Next, the suggestion that A was “guarded” with his case manager could be attributable to rapport not being established. The respondent also submitted that the case manager reported on other occasions the respondent had been more “reactive”. Finally, the oral evidence by staff members at the accommodation demonstrated that the respondent’s explanation with respect to the “bunny ears” was possible.
The respondent also submitted that the respondent’s strengths and protective factors attenuated his risk of future problem sexual behaviour. The respondent referred to the support and supervision available at the accommodation, and the respondent’s therapeutic relationship with his support workers.

Consideration

The respondent’s submissions should be accepted. The Tribunal was satisfied that with stringent monitoring and management, problems relating to the respondent’s conduct and level of functioning could be appropriately controlled by the conditions to be imposed.
The first and tenth factors upon which the Minister relied were dealt with by the conditions imposed for supervision when in the community. The relevant condition was condition 22, which provided:

“[The respondent] may only leave [the accommodation] if he is escorted continuously by his case manager, a staff member of [the accommodation] or another person nominated by his case manager. He must remain under constant ‘line of sight’ supervision during any absences from [the accommodation].”

The evidence given at the second hearing on 27 January 2017 was that pursuant to that condition the respondent, when he had access to the community, was in the company of one staff member from the accommodation and one or two other residents (a ratio of 1:2 or 1:3 staff to residents) or two staff members from the accommodation and three other residents (a ratio of 2:4 staff to residents). A support worker from the accommodation gave evidence that the ratio was decided on the basis of a “community activity risk assessment”, which was conducted before each community outing. The respondent’s behaviour was well controlled when he was in the community and he had not engaged in any behaviour that put himself or anyone else at risk when accessing the community. In this regard, the Team Leader at the accommodation gave evidence that the respondent “accesses the community several times a week under supervision and line of sight and goes to the bank and … gets … take away”. The House Manager at the accommodation also gave evidence that the respondent “enjoys getting access to the community and he understands that … supervision is part and parcel of the community access”.
The Minister complained however that the degree of supervision was less rigorous than that proposed by Dr Wade and Dr Maharaj, namely, that:

“When entering the community [the respondent] should be under one to one supervision. This should be of a greater intensity than merely ‘a line of sight’ and should be proximal. He should not be allowed to interact with children under any circumstances.”

Whilst the Tribunal did not accept this condition, that does not mean that the Tribunal could not be satisfied of the requirements of s 43(a) by the imposition of a less strict but still stringent provisions in relation to supervision when the respondent was in the community. As Mr Tranter acknowledged, if the respondent were to be granted conditional release, the conditions proposed were “quite fair and … quite suitable”.
As to the matters referred to in the second, third, fourth, fifth and eighth factors, the evidence was that although there continued to be concerns around these matters, indeed, they were some of the issues in respect of which the Tribunal said there were “obvious risks”, the evidence was and the conditions imposed were such that these matters could be appropriately controlled by medication, supervision and management.
As to the matters referred to in the sixth and seventh factors, the Tribunal was satisfied on the evidence that those in charge of the accommodation into which the respondent was to be released had the requisite skills and staff to supervise the respondent in accordance with the conditions that were proposed. The Tribunal was also satisfied that the extent of medical treatment was adequate and the Minister did not proffer any evidence to the contrary at the November hearing. The matters referred to in the ninth factor, namely the “bunny ears” and the female clothing are dealt with above, but as the respondent pointed out, it had been accepted by staff that his explanation of the “bunny ears” was possible.
It is to be borne in mind that the requirement in s 43(a) is that the Tribunal must be satisfied that the safety of the patient and members of the public will not be seriously endangered by the release of the patient. It does not require that the patient not engage in any inappropriate behaviour. Nor does it require insight or remorse on the part of the patient. Indeed, it is unlikely on the evidence that the respondent would have the mental or intellectual capacity for either insight or remorse.
Relevant to this is that the Tribunal’s determination, as to whether it is satisfied, in accordance with s 43(a), is not made in a vacuum. The application before the Tribunal was for conditional release. The tribunal’s determination that it was satisfied that there would be no serious endangerment of the safety of the respondent or members of the public was based on the conditions that were proposed if the respondent were to be released. The Minister’s identification of the factors listed above failed to grapple with that context and also failed to deal with the totality of the evidence before the Tribunal.
The Minister also submitted, by reference to the respondent’s behaviour prior to the determination made on 15 December 2016, being matters to which, she contended, the Tribunal apparently gave no or little weight, that the test in s 43(a) was not satisfied. That behaviour was:

“i.   when A was subject to a release order in 2014 of which the conditions were as strict as the current order, he assaulted a member of staff at his 24 hour supervised accommodation, hid a girlfriend in his bedroom (with police being required for force open a door to which he had ‘self-fitted’ a lock), demanded that she (a vulnerable and intellectually disabled female) bring him cigarettes and directed her to hide from staff in extreme cold and rain …
ii.   on 21 September 2016 A told CFMHS that he would ‘do it again’ and that staff left him unsupervised for most of the time …
iii.   he brought dolls (potential grooming items) to his accommodation facility to the knowledge of staff, who did not report it …
iv.   he concealed a mobile phone in a speaker in his bedroom. 10 screws had to be removed to access the phone …
v.   he made Facebook posts to a 12 year and another girl under the age of 18. At the time, this was considered grooming behaviour and a ‘serious warning sign’ …
vi. he was charged with ‘Convicted Child Sex Offender loitering near public place’ and contravening a Child Protection Prohibition Order and discharged under s.32 [of the Forensic Provisions Act] …
vii.   he blamed others for his detention and denigrated the agencies involved in his care. He consumed alcohol and got into an altercation at an Ex-Services Club …” (citation omitted; emphasis in original)

The Minister further submitted that the conditions that had been imposed on the respondent’s conditional release did not adequately protect the safety of any member of the public. The Minister’s submission focussed on conditions 18, 22 and 24, which were as follows:

“18. [The respondent] may only enter a licensed premises when supervised.
…
22. [The respondent] may only leave [the accommodation] if he is escorted continuously by his case manager, a staff member … or another person nominated by his case manager. He must remain under constant ‘line of sight’ supervision during any absences from [the accommodation].

…
24. [The respondent] is to remain in line of sight of staff at all times, except when he is in his bedroom at night. His bedroom will be located next to the staff station. At night, staff will observe him at least hourly until morning.”

The Minister submitted that these conditions were inadequate having regard to the evidence of Dr Burns, Dr Wade and Dr Maharaj, such that the Tribunal could not have had the requisite satisfaction for the purposes of s 43(a). The evidence of Dr Burns to which the Minister referred was that the management of the respondent needed to involve “close and rigorous monitoring and supervision”. The implication in this submission was that the accommodation to which it was proposed that the respondent be released would not be able to provide that standard of monitoring and supervision and that the incidents it cited demonstrated that.
The incidents upon which the Minister relied were nearly all historical events that had resulted in his conditional release being revoked, or had required specific management strategies to be implemented, or had involved focussed treatment either by way of counselling or changes in medication. It is also necessary to keep in mind that none of the witnesses suggested that the behaviour raised by the Minister at [86] above will or is likely to re-occur. Rather, the thrust of the evidence of all witnesses was that the respondent had demonstrated improved conduct and functioning, having regard to his current medication, treatment and conditions of release.
The evidence was also directed to whether the respondent could be effectively managed so that his safety and the safety of any member of the public was not seriously endangered. This was apparent from the fact that all witnesses accepted that a high level of supervision was required when the respondent had access to the community, albeit that there were differences of opinion as to the precise extent of supervision required, to which reference is made above. The need for regular psychiatric consultations was also accepted by all relevant witnesses. For example, Dr Wade and Dr Maharaj also suggested that the respondent have “at least monthly face-to-face contact with the responsible Psychiatrist or delegate”.
The Minister also submitted that it was apparent that by the hearing on 27 January 2017 in which the Minister sought a stay of the order for conditional release made on 15 December 2016, that there was evidence that underscored the seriousness of the risk that the respondent presented.
Three matters were particularised in support of this submission. The first was an incident that had occurred on 2 December 2016, when a search history of another resident’s phone revealed that adult porn sites and a site showing young girls wearing gymnastic outfits had been viewed. This had come to the attention of staff when the respondent had been in a van with another resident and was seen “whispering about [the other resident’s] phone”.
The second was an incident that had occurred between 17 and 24 November 2016, in which it was said that the respondent had used deceit to obtain cigarettes and “had made physical threats and intended plan (sic) to hurt a staff member”.
The third matter related to a letter dated 24 January 2017 from the operators of the accommodation to the Tribunal for the purposes of the hearing on 27 January 2017. In the letter, the operators reported that “all occurrences of behaviour have been reported and shared with relevant stakeholders” and that the respondent “has been made repeatedly aware of [the commitment to report any observed behaviour], and the fact that staff will not hesitate to report issues and incidents as they arise”.
The point the Minister sought to make by reference to this letter was that the two earlier incidents had occurred prior to the Tribunal’s determination given on 15 December 2016, but it appeared, had not been brought to the Tribunal’s attention, as there was no reference to them in the Tribunal’s reasons. It was suggested that this indicated a failure in the system of reporting in circumstances where the team leader at the accommodation had given evidence that it had been made clear to all residents that the moment that any breach of the conditions of their residence would immediately be reported.
In response to the Minister’s submission that information before the Tribunal on 27 January 2017 underscored the seriousness of the risk posed by the respondent, the respondent submitted that it was not known how old some of the internet searches were and if the respondent was involved, and that the respondent had explained he was smoking more frequently due to his delay in visiting the accommodation. The respondent further submitted that both of these incidents had occurred after the hearing for conditional release on 9 November 2016.
The Minister also submitted that there were more recent incidents that added to the concerns as to the risk to other members of the public. It was said that the respondent had been engaging in “grooming behaviour” with respect to another resident; had accumulated $1000 in cash through “betting”; and that the administration of the respondent’s antipsychotic medication “was missed as it was ‘forgotten’”. The Minister stated that the accumulation of the large amount of cash and the lapse in the administration of the medication underscored the inadequacy of the Tribunal’s reasoning in being satisfied of the test under s 43(a) in circumstances where the Tribunal had considered that the conditions it was imposing on the respondent’s release amounted to a form of “house arrest”.
In oral argument, counsel for the respondent submitted that these incident reports should not be read as “gospel”, as “there’s no real investigation of many of these incidents”. The respondent submitted that his interaction with the other residents could be “monitored at all relevant times” by line of sight supervision. In his submissions in respect of the third appeal, the respondent submitted that: (1) while the monthly depot injection had been missed, the respondent alerted staff, and measures had since been put in place to prevent the oversight occurring again; and (2) there is no conclusive evidence as to how the respondent came to possess the $1,000, but that he had said he saved it because “he is careful with his money”.
The Minister also referred to a number of the factors identified by the CFMHS as to early warning signs for relapse, and additional early warning signs for sexual recidivism, namely, medication non-adherence; the forming of inappropriate relationships; requests for unsupervised use of the internet; and engagement in or interest in child-related activities, for example, “acquiring toys”. This latter reference was to the bunny ears found in the respondent’s possession. The Minister also relied upon the CFMHS’ opinion that the respondent presented “a moderate risk of sexual [reoffending]”.
In summary, the Minister submitted that the combination of these various factors demonstrated that it was “not open to the Tribunal to find that close supervision and monitoring were present or feasible to the extent of satisfying the test in s 43(a)”.
The Minister also relied upon the evidence of Professor Large to the Tribunal at the hearing on 27 January 2017 in support of the Minister’s application for a stay of the first determination. In Professor Large’s opinion, the respondent should continue to reside at the facility, as there had insufficient time for his antipsychotic medication to have taken effect and because the proposed conditional release was premature and precipitous. In Professor Large’s opinion, it would be another year or two before one could be satisfied as to the long-term success of the treatment.
The respondent submitted that Professor Large’s report was not in evidence before the Tribunal on 9 November 2016 when it considered the application for conditional release, and is therefore relevant only to the refusal to suspend the stay application.

Consideration

The Minister’s reliance upon the additional evidence that had not been before the Tribunal at the hearing on 9 November 2016, including the evidence at the hearing of the stay application, raises the question of the nature of an appeal under s 77A and the powers of this Court on such an appeal.
Pursuant to s 77A(8) of the Forensic Provisions Act, appeals brought under s 77A are “made subject to and in accordance with the rules of the Court”. There is no definition of the expression “rules of the Court”. Proceedings in this Court are conducted in accordance with the Uniform Civil Procedure Rules 2005 (NSW), Pt 51, which specifies the procedural requirements for bringing and conducting an appeal. Rule 51.51 specifies the procedural requirements for adducing additional evidence.
The power of the Court to receive additional evidence on an appeal is contained in the Supreme Court Act, s 75A, which also prescribes the nature of an appeal brought. Relevantly, s 75A provides:

“75A   Appeal
…
(5)   Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.
…
(7)   The Court may receive further evidence.
(8)   Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
(9)   Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.” (emphasis added)

The orders the Court may make on the appeal are specified in s 77A(9) of the Forensic Provisions Act which, in summary, are that the Court may affirm the determination, make the orders as in its opinion, should have been made by the Tribunal or remit the matter to the Tribunal for re-hearing.
The view has been taken in the authorities that an appeal to this Court under s 77A is by way of rehearing pursuant to s 75A. See A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30 per Lindsay J at [18]. Lindsay J considered, however, that although the appeal was by way of rehearing:

“… it is incumbent upon the Court, as a precondition to appellate intervention, to be satisfied that the determination of the Tribunal is materially affected by appellable error.”

In A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363, Johnson J held that an appeal from a Tribunal decision under s 77A is to be conducted by way of rehearing pursuant to s 75A. In this regard, his Honour observed, at [39], that in Kostas v HIA Insurance Services Pty Limited (2010) ALR 228; [2010] HCA 32, French CJ held, at [37], that s 75A applies to statutory appeals from administrative bodies. However, Johnson J emphasised that an appeal under this section is not to be conducted as a hearing de novo. As his Honour observed, at [40]:

“An appeal under s.77A(1) is not an appeal by way of hearing de novo. It is noteworthy that s.77A does not provide for the court to be assisted by assessors in hearing and deciding an appeal. That part of Recommendation 15 of the 2007 Report (see [32] above) was not taken up by the legislature. Section 77A may be contrasted with s.164(5) and (6) Mental Health Act 2007, where the Court is exercising an appeal function from Tribunal decisions on the civil (and not forensic) side of its jurisdiction. An appeal under ss.163 and 164 Mental Health Act 2007 is by way of hearing de novo: S v South Eastern Sydney and Illawarra Areal Health Service [2010] NSWSC 178 at [22].” (emphasis added)

The respondent did not contend that the Supreme Court Act, s 75A did not apply to the appeals before the Court. Accordingly it was available to the Minister to rely on the additional evidence. It would have been preferable had notice of its intention to do so been given. Nonetheless, the respondent dealt with the additional evidence and no prejudice has been occasioned in the circumstances.
In seeking to rely on the evidence adduced at the hearing on the stay application, the Minister did not refer the Court to the whole of the evidence before the Tribunal but relied on the additional incidents to which I have referred and on Professor Large’s evidence. However, the evidence upon which the Minister relied cannot be considered in isolation. There was other relevant evidence, including evidence from D Burns and from other persons engaged in the respondent’s care.
Dr Burns and Professor Large gave evidence concurrently at the hearing of the stay application.
Dr Burns said that the respondent’s behaviour had settled significantly over the 18 month period in which he had been receiving antipsychotic medication. He was confident that the conditional release order could be implemented safely.
Professor Large pointed to the monitoring and treatment that the respondent received at the facility, and observed that the psychiatrists there were highly skilled, whereas the accommodation was some distance from mental health community services. However, Dr Burns noted that the antipsychotic medication was administered by injection such that monitoring the respondent’s compliance was ensured, and that under the conditional release, the respondent would receive the same support from a case worker and psychiatrist as he had at the facility. As has already been mentioned, Professor Large’s view was that the sufficient time had not passed to assess whether the medication was effective.
Professor Large stated that, if the respondent were granted conditional release, the facility would lose its negotiating power with the respondent. However, Dr Burns was of the view that the close relationships with the team at the accommodation would be beneficial for the respondent and that he could be demoralised by the delay caused by a possible suspension of the conditional release order. Dr Burns also gave evidence that it would be favourable to the respondent to be in the accommodation where there would be a smaller number of people and he would likely receive greater attention.
Mr Dunn, a support worker with the organisation that conducted the accommodation and was familiar with that accommodation and with the respondent, gave evidence in relation to the incident involving a mobile phone to which reference is made above. The Tribunal observed that the evidence in relation to this incident was not conclusive but that there were some suggestions that the respondent and another patient may have accessed inappropriate material on the phone. Mr Dunn also gave evidence that he thought that the respondent would be more comfortable discussing sexual re-offending rehabilitation in the accommodation.

Conclusion

In my opinion, the Minister has not demonstrated that the Tribunal misapplied s 43(a) either by reference to the evidence before it at the hearing in November in respect of the respondent’s conditional release, or when the additional evidence that was before the Tribunal on 27 January 2017 is taken into account. The fact that there may be differences of opinion amongst experts does not justify a finding that conditional release should not be granted.
It is also apparent from the Tribunal’s reasons that it applied s 43(a). It is not necessary to restate what has already gone before. It is sufficient to reiterate that the Tribunal recognised that the respondent posed serious risks, especially to female children, but also to other vulnerable persons, should he be released other than in circumstances where his behaviour and functioning would be supervised and monitored at an extremely high level, and where he would receive appropriate treatment, as was discussed by the professionals whose care he was under, or who have provided expert and observational reports of his conduct and functioning.
The fact that there may be differences of opinion amongst these persons, particularly Mr Tranter and Professor Large, as to whether conditional release was appropriate or as to the precise terms of the conditions to be imposed does not mean that the Tribunal misapplied s 43(a) as the Minister asserted. There was no need for the Tribunal to deal specifically with Mr Tranter’s concerns. The Tribunal referred to those differences but nonetheless determined that conditional release should be ordered. In coming to that determination, the Tribunal expressly referred to the test prescribed by s 43(a). The Minister, in my opinion, has failed to demonstrate that the Tribunal misapplied s 43(a). To the contrary, I am of the opinion that the Tribunal correctly applied the requirements of the section having regard to the evidence before it.
Before leaving these grounds of appeal, it should be noted that a further issue that arose in the course of argument was the meaning of “member of the public” in s 43(a). At one level, this submission became academic, as the focus of the Minister’s concern was the protection of the public outside the facility. The Minister said there nonetheless remained a concern as to conduct that had occurred within the facility and that those persons were “members of the public” for the purposes of s 43(a). The Minister contended that as the respondent had and would have interaction with staff and clients at the accommodation and staff and patients at the facility should he remain there, there was an additional issue relating to the safety of the patients or members of the public that could not, and was not appropriately addressed, by the restrictions of the proposed conditional release.
The Minister relied on Attorney General for the State of New South Wales v XY. In that case, the respondent was charged with assault occasioning actual bodily harm. The Queensland Mental Health Court determined that XY was of unsound mind at the time of committing the alleged offence and made a forensic order pursuant to the Mental Health Act 2000 (Qld). In contravention of the forensic order, XY travelled to Sydney and killed his uncle. In 2009, XY was found not guilty of murder on the grounds of mental illness, and became a forensic patient pursuant to s 42(a)(i). In 2013, during a review under s 46(1) of the Forensic Provisions Act, XY’s treating team indicated that it was desirable that XY return to Queensland to be near his family as part of his ongoing treatment.
The Tribunal determined that XY should be unconditionally released upon notification of his admission to a facility in Queensland. XY was escorted to the facility in Queensland, at which time the Tribunal made an order for XY’s unconditional release pursuant to s 47(1) of the Act. In doing so, the Tribunal accepted the Attorney General’s submission that reference to a “member of the public” in s 43(a) should be construed to apply to “any member of the public in Queensland and New South Wales”. The Tribunal accepted this submission on the basis that, at the time of his arrival in Queensland, XY would still be the subject of the forensic order made in New South Wales. This finding was not disputed on appeal. In my judgment at [52], I indicated that the definition might also be capable of further extension:

“It should be said, however, that any member of ‘the public’ in s 43(a) may extend to any member of the public with whom the patient comes or may come into contact with. For example, if the Tribunal was considering conditional release to enable a patient to travel overseas, any member of "the public" would presumably encompass persons encountered in the course of travelling and whilst overseas.”

Basten JA added, at [164], that:

“[The Tribunal’s finding] should not, however, be treated as a restrictive finding. The phrase is apt to cover members of the public anywhere in Australia and, indeed, may well extend to other countries. It is by no means clear that the Tribunal could properly disregard the consequences of the unconditional release of a forensic patient due to depart for a foreign country.”

It is sufficient in the present case to observe, without needing to finally determine, that, if “member of the public” extends to other patients and to staff, the evidence in this case did not indicate that if the respondent was released subject to the conditions imposed, the safety of those persons would be seriously endangered.

Did the Tribunal misapply s 43(b) of the Forensic Provisions Act?

The Minister submitted that the Tribunal erred in finding that care of a less restrictive kind, consistent with safe and effective care, was reasonably available to the respondent. In support of this ground, the Minister relied upon her written submission which was in the following terms:

“The basis for the conditional release order appears to have been that the level of security to which [the respondent] would be subject would not significantly vary, as he would be under ‘house arrest’ at [the accommodation]. Except to the extent that he would no longer be attending [the facility], the Tribunal did not expressly consider whether the proposed regime was ‘less restrictive’, having also noted that the conditions of release were substantially the same as the conditions of leave to which [the respondent] had been subject while residing at [the accommodation] for periods of time in 2016.”

There was evidence that the difference in the level of security at the facility and the accommodation was slight. There was also evidence that, if the Tribunal were to suspend the conditional release order pending the hearing of the appeal from the determination of 15 December 2016, the respondent would retain the same access to the accommodation, as he had under the arrangements that existed before the conditional release, namely, four week leave periods, after which the respondent would return to the facility for one or two weeks. This was to be contrasted with the position under the terms of the conditional release order, whereby the respondent would no longer return to the facility and he would be under the care of the community mental health services.
This submission can be dealt with in brief terms. Notwithstanding the various risk factors that had been identified, Dr Maharaj and Dr Wade supported the respondent’s conditional release to the accommodation on a permanent basis, being in their opinion the “least restrictive environment available to him at this current stage”. Their support of that proposal was on the basis of the strict conditions to which reference has been made. In my opinion, there is nothing in this challenge having regard to the strict conditions imposed. Accordingly, this ground of appeal should be dismissed.

The second appeal: order made 3 February 2017

Grounds of challenge

The Minister challenged the Tribunal’s orders made on 3 February 2017 on the following bases:

“1.   The Tribunal erred in not providing reasons for not accepting the expert opinions of Professor Matthew Large.
2.   The Tribunal erred in failing to find that the safety of any member of the public will not be seriously endangered by the second respondent’s conditional release.
3.   The Tribunal erred in finding that the safety of the public was more than adequately catered for by the conditions of release made on 15 December 2016.
4.   The Tribunal erred in finding that there was not such a risk to the second respondent himself as to warrant suspending the order made on 15 December 2016.
5.   His Honour erred in finding that it was somewhat unfair to the second respondent that the Minister should rely on the opinions of Professor Large on the application heard on 27 January 2017.” (Red 95)

In my opinion, it is not necessary to deal with the appeal against the orders refusing the Minister’s stay application in circumstances where I have concluded that there was no error in the Tribunal’s determination made on 15 December 2016 granting the respondent conditional release.
The Minister accepted that, while the appeal against the orders made on 3 February 2017 is of no practical significance, the reasons of the Tribunal are important because the determination made in February 2017 was informed by additional evidence over and above the determination made in 2016. The appellant submitted that this evidence, adduced in the context of the stay application, should also inform whether conditional release should have been granted.
I have already dealt with the evidence adduced at the hearing of the stay application as additional evidence on the appeal from the determination of the 15 December 2017. As there is no utility in dealing with the appeal from the determination itself I do not consider it appropriate to do so. The Tribunal determination should be affirmed and the appeal from that determination otherwise be dismissed. For completeness, I would add that I have considered the Tribunal’s reasons in the course of examining the evidence before it on that occasion and would have concluded in any event that the Minister has failed to demonstrate any error in the determination.

The third appeal: determination made 21 June 2017

Nature of the proceedings on 30 May 2017

Tribunal’s reasons

This proceedings before the Tribunal leading to the determination made on 21 June 2017 was the six monthly review required by the Forensic Provisions Act, s 46(1). The hearing occurred on 30 May 2017 and the Tribunal made orders and published its reasons on 21 June 2017. Again, there was attached to the Tribunal’s reasons an Annexure A which contained a summary of the respondent’s history, including of the reviews conducted on 9 November 2016 and 27 January 2017 leading to determinations on 15 December 2016 and 3 February 2017 respectively.
In its reasons, the Tribunal referred to three reports which were before it. The first was a report from the respondent’s new case manager. The report noted that screening for drugs and alcohol had been negative. Due to an administrative oversight, a monthly injection of the antipsychotic medication had been missed. The case manager noted, however, that the respondent alerted staff to this oversight. There had been no escape attempts. However, there had been some recent concerns: the respondent had developed a close relationship with another resident. He had also told his psychiatrist that he was carrying $1,000 in cash. The Tribunal noted that it was not clear whether this assertion had been checked.
The second report was prepared jointly by the Senior Clinical Consultant and a Team Leader of the CJP, who noted that the respondent had been compliant with his appointments and medication, although at times he said that he did not think he needed to take it. The report recorded that there had been no incidences of inappropriate behaviour around minors or any reports of aggression. The authors concluded that the respondent had an “overall risk rating within the low range”, should he continue to reside at the accommodation under conditional release. At the hearing, the Senior Clinical Consultant gave evidence that, while the respondent remained in the accommodation, the overall risk was “very low”.
The third report was prepared jointly by a Clinical Nurse Consultant with the NSW Community Forensic Mental Health Service, and a Consultant Forensic Psychiatrist within that service. It recorded the respondent’s disappointment at the departure of his previous case manager, but noted that he thought the current case manager was “good”. In their view, the respondent’s likely diagnosis was schizoaffective disorder with a differential diagnosis of bipolar disorder, and paedophilic disorder. However, the respondent was not considered to be a candidate for antilibidinal medication because of the health risk factors associated with such medication. They also noted that the respondent had an alcohol use disorder in remission, a history of a mild intellectual disability and that he presented with features consistent with an antisocial personality disorder.
The authors of this report concluded that there was moderate concern for sexual recidivism in the short to medium term in the respondent’s current environment, and that this risk would increase in the absence of adequate monitoring and supervision; that he posed a low to moderate level of concern for future episodes of threatening behaviour and reactive aggression; and that he presented a low risk of harm to himself. They concluded that the safety of the respondent or any member of the public was unlikely to be seriously endangered by his ongoing conditional release and that this was the least restrictive option consistent with safe and effective care. This was so notwithstanding that the respondent was reluctant to discuss his sexual offending, a reluctance they considered to be “significant”. They suggested that the respondent should not be allowed to enter any hotels or licensed premises, that he should be under one to one supervision when in the community, that such supervision should be “greater than merely a line of sight’ and should be proximal”, and that he should not be allowed to interact with children at all.
The Tribunal referred to the respondent’s statement at the hearing that he was “doing well” and the case manager’s evidence that the respondent was “doing quite well” and turning up at all appointments.
The House Manager at the accommodation gave evidence that he had no indication of any concerns with the respondent. He said that the respondent went about his daily duties, went into the community under supervision and interacted socially with other residents. He also said that, when there were incidents concerning staff and other residents, the respondent had been very responsive regarding their expectations, respect and inter-personal boundaries when these matters were pointed out to him. In relation to attending licensed premises, he said that the respondent attended a local club for meals, there had been no issues regarding alcohol and that the accommodation was comfortable with the terms of the current order.
In addition, a Team Leader at the accommodation confirmed that the accommodation could manage the risks posed by the respondent and was comfortable with the conditions of the release order and did not propose any changes. They had also implemented a response to the oversight which resulted in the respondent missing one of his monthly injections.
The Tribunal stated that it had regard to the Forensic Provisions Act, ss 40, 47 and 74(a)-(c) and the Mental Health Act, s 68 and the evidence before the Tribunal. It concluded that it was satisfied that there were reasonable grounds for believing that the present arrangements for the care, treatment and control of the respondent were necessary and sufficient for his protection from serious harm and/or the protection of others from serious harm. The Tribunal determined to vary the currently applicable order in relation to care and treatment by providing that “discharge conditions numbered 1-3 no longer apply” and noting a change in the respondent’s case manager. Conditions 1-3 related to the respondent’s discharge from the facility and were thus redundant.

Grounds of challenge

The Minister separately challenged the determination made on 21 June 2017 on the following bases:

“Ground 1. The Tribunal erred in being satisfied that as at 21 June 2017 there were reasonable grounds for believing that the arrangements for the care, treatment and control of the Respondent were sufficient for the protection of [the respondent] from serious harm and/or for the protection of others from serious harm.
Ground 2. The Tribunal erred in maintaining the release of the Respondent, based on the Tribunal’s misconstruction of misapplication on 15 December 2016 and/or 3 February 2017, of the criteria set out in section 43 of the Mental Health (Forensic Procedures) Act 1990 (NSW).
Ground 3. The Tribunal erred in not revoking the order for conditional release made on 15 December 2016.”

Minister’s submissions

The Minister accepted that the proceeding before the Tribunal on 30 May 2017 was the six monthly review of the respondent under s 46(1). The Minister submitted, however, that if the Court upheld his appeal in relation to the determination of 15 December 2016, the determination of 21 June 2017 would be of no force or effect, as that determination did not of itself grant the respondent a release from detention. Nor did the determination of 21 June 2017 supplant or otherwise make redundant the determination of 15 December 2016.
The Minister also complained that she had not been afforded an opportunity to be heard. In this regard, the Minister submitted that she had no right to be heard in a statutory review held under s 46(1). She contended that her only right to appear before the Tribunal was that prescribed by s 76A(2) and that the Tribunal did not usually or routinely accept submissions from her at a review held pursuant to s 46(1).
The Minister submitted, alternatively, that if the determination was a “release decision”, the Tribunal failed to consider the mandatory provisions of s 43. The Minister submitted that, having regard to the following evidence at the review hearing held on 30 May 2017, as well as the insistence of the CFMHS that “line of sight” supervision was not adequate to contain the respondent’s risks, it was apparent that the test for s 43(a) was not met. The evidence to which the Minister referred was as follows:

“- a monthly depot injection of antipsychotic medication had been missed …
- [the respondent] had developed a closer relationship with another resident …
- [the respondent] told a psychiatrist that he was carrying $1,000 cash and it was not clear whether that assertion had been checked …
- [the respondent] had made an inappropriate comment but it turned out to be a joke …
- at times [the respondent] said he did not need to take his medication …
- [the respondent] remained reluctant to discuss his sexual offending behaviour which the [CFMHS] regarded as significant …”

The Minister submitted that the respondent’s conditional release ought to have been revoked. She also relied upon her submissions in respect of other two appeals.

Respondent’s submissions

The respondent submitted that although there was no statutory right accorded to the Minister to appear at a s 46(1) review hearing, proceedings before the Tribunal were flexible. Thus, pursuant to s 76A(1), the Tribunal is entitled to “communicate with any persons, take any action and make any recommendation it thinks fit”. Further, pursuant to s 151(1) and s 160(1) of the Mental Health Act, the Tribunal “has broad powers to inform itself as it thinks fit, without regard to the rules of evidence”.
The respondent also pointed to the right of the Minister, on the Minister’s own motion, to initiate a review of a forensic patient at any time pursuant to s 46(2) and to the fact that if such a request is made, the Tribunal must conduct a review. The Minister could have sought the respondent’s detention on any such application, which was the effective outcome contended for on the appeals presently before the Court. However the Minister had not done initiated any such application.
The respondent also pointed out that a solicitor representing the Minister was in attendance at the hearing on 30 May 2017 and announced her appearance as an “observer” but made no application to be heard. He suggested that the Minister’s conduct in this regard can be contrasted with the active position that the Minister took at the hearing on 27 November 2016 in opposing the respondent’s conditional release. He contended that there was no reason why the Minister could not have sought leave to appear at the hearing on 30 May 2017.
The respondent also responded to the individual matters upon which the Minister relied.

Consideration

It was not in dispute that the proceeding before the Tribunal on 30 May 2017 and determined on 21 June 2017 was the six month review of the respondent pursuant to s 46(1). It had not been suggested to the Tribunal by any of those who participated in the hearing that the release order made on 15 December 2016 should be revoked and there was no application for its revocation. The respondent’s case manager did not seek any change to the existing orders. In particular, the Minister made no application to be heard at that hearing, nor did she initiate proceedings, as she was entitled to do under s 46(2), to review the respondent’s case.
The reports that were before the Tribunal are discussed above. Importantly, the Senior Clinical Consultant with the CJP had prepared two risk assessments in which the respondent’s “dynamic risk” in the community was assessed as low. The CJP Senior Clinical Consultant also gave evidence that relationships between the respondent and staff were good and that the protective factors were very good and that that whilst the respondent stayed at the facility, “the risk is very low”. She expressed the view that the “service was doing a great job”. The respondent certainly continued to exhibit some problematic behaviour. However, that must be expected with a person with his diagnoses and level of mental functioning.
The Minister’s submission that the insistence of the CFMHS that line of sight supervision was not adequate to contain the respondent’s risks did not accurately reflect the CFMHS’ evidence. In their report, Dr Mararaj and Dr Wade stated:

“Of significance is that [the respondent] continues to refuse any discussions in relation to his sexual offences and/or any current or past psychiatric symptomology. We therefore recommend that [the respondent] receive ongoing psycho-education with its main focus being on assisting him develop insight into his behaviour, including deviant sexual behaviour and psychotic symptoms.”

The respondent’s case manager gave evidence. She said, in response to the Tribunal President’s enquiry as to how the respondent was “going so far as you’re concerned”:

“He’s going quite well, he turns up to a lot of his appointments with his staff, support staff. He attends regularly for his depot, that doesn’t – there was one incident where he was overdue for about two weeks …
… other than that, I think he’s doing fairly well.”

The team leader at the accommodation said that the respondent “has not given us any indication of any real concerns”. He participated in daily household duties, enjoyed mowing the lawn and had participated in “little projects in the house” and on the property. He had access to the community several times a week under line of sight supervision and engaged socially “with some of the other residents” of the accommodation. This view was supported by the manager of clinical services at the accommodation. He said that while there had been a few incidents relating to “interpersonal boundaries with staff and other residents”, the respondent had been:

“… quite responsive thus far to support about what our expectations are in terms of respect for each other and in terms of interpersonal boundaries and we’ve had you know, very limited issue in relation to that.”

The clinical manager at the accommodation said the respondent was “travelling quite well” and that there were safeguards in place to “manage levels of risk”.
As the evidence before the Tribunal revealed, the arrangements for the care, treatment and control of the respondent in the accommodation and the conditions of his release to that accommodation imposed by the determination of 15 December were operating effectively. The respondent’s conduct and behaviour were being adequately managed notwithstanding that there had been incidents of inappropriate behaviour.
The question for the Tribunal on this review was whether the respondent was being adequately managed in the accommodation to which he had been released. This determination fell to be made in the context where the Tribunal had previously been satisfied of the requirements of s 43 in ordering the respondent’s release and there was no application for the respondent’s detention with the intended consequence of his being returned to the facility.

In my opinion, the Minister has not demonstrated any error in the Tribunal’s determination and ground 1 of this appeal should be rejected. Grounds 2 and 3 accordingly do not arise and also should be rejected.
I would only add that whilst the Minister’s concern that persons only be released if the safety of the person and members of the community are not seriously endangered, is both proper and understandable, it was difficult to know why the appeals in relation to the determinations of 3 February and 21 June 2017 were brought or maintained having regard to the evidence before the Tribunal on each occasion.
It follows that the determinations of the Tribunal should be affirmed and the appeals in each matter should be dismissed with costs.
The orders I propose are:

(1) Remove the Mental Health Review Tribunal as a party to the appeal;

(2) Dismiss the appeals against the determinations made by the Mental Health Review Tribunal on 15 December 2016, 3 February 2017 and 21 June 2017;

(3) The appellant to pay the respondent’s costs in this Court.

WHITE JA: I have had the advantage of reading in draft the reasons of Beazley ACJ. I agree with her Honour’s reasons and with the orders her Honour proposes.
I also agree with the additional observations of Sackville AJA.
SACKVILLE AJA: I have had the advantage of reading the detailed judgment of Beazley ACJ in draft. I agree with the orders her Honour proposes and with her Honour’s reasons. I add the following observations.
As Beazley ACJ observes, there was no dispute that the respondent (A) was a “forensic patient” for the purposes of Part 5 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Forensic Provisions Act). Nevertheless it is convenient to consider why this is the case.
Beazley ACJ has reproduced the definition of “forensic patients” contained in s 42 of the Forensic Provisions Act. [1] Section 51 provides as follows:

“(1) A forensic patient ceases to be a forensic patient if any of the following events occurs:
(a) the person is released unconditionally in accordance with an order by the Tribunal under this Part or by order of a court,
(b) if the person has been released in accordance with such an order subject to conditions--the time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with expires.
(2) This section applies in addition to any other provision of this Subdivision.”[2]
1. See at [7] above.
2. Section 52 of the Forensic Provisions Act specifies additional circumstances in which a person ceases to be a forensic patient. None is presently relevant.

It is doubtful whether, at the date of the Tribunal’s Determination on 21 June 2017 (or of the hearing on 30 May 2017), A satisfied the language of the definition of “forensic patients” in s 42 of the Forensic Provisions Act. On each of the relevant dates, A was not a person detained in a mental health facility. Nor had he been released from custody subject to conditions pursuant to an order made under any of the sections identified in s 42(a)(i) of the Forensic Provisions Act. His release subject to conditions was ordered pursuant to s 47(1)(b) of the Forensic Provisions Act, a provision not referred to in s 42(a)(i).
A became a forensic patient in 2002, when he was detained in a mental facility pursuant to s 39(1) of the Forensic Provisions Act. (Section 39 is one of the provisions identified in s 42(a)(i).) A was subsequently released from custody subject to stringent conditions, but the order to that effect was not an event specified in s 51(1) of the Forensic Provisions Act. Section 51(1) should be understood as stating exhaustively the circumstances in which a forensic patient ceases to have that status. [3] If it were otherwise, a forensic patient released from custody but subject to strict conditions imposed in the interests of safety of members of the public would cease to be subject to the statutory regime. This could clearly be inconsistent with the objects of the legislation. [4] Accordingly, A’s status as a forensic patient has never been terminated.
3. Subject to the operation of s 52 of the Forensic Provisions Act.
4. See s 40(a) of the Forensic Provisions Act, which provides that the objects of Part 5 include “protect[ing] the safety of members of the public”.
Beazley ACJ has also referred to the sections of the Forensic Provisions Act relevant to whether the Tribunal is bound to give reasons for a determination that may be the subject of an appeal to the Supreme Court or the Court of Appeal pursuant to s 77A. The better view, in my opinion, is that the legislation requires the Tribunal to gives reasons for its determination.
Section 77A(5)(b) contemplates that the Tribunal will give reasons, since an appeal by the Minister or the Attorney-General must be made within 28 days of written notification to the Minister or the Attorney-General of the reasons for an order terminating proceedings. [5] The language of s 77A does not suggest that the obligation of the Tribunal to give reasons is enlivened only when a request to do so is made by the Minister or the Attorney-General (or, for that matter, by any other person entitled to appeal or to seek leave to appeal pursuant to s 77A). Unless the Tribunal gives reasons, it is difficult to see how any of the parties entitled to appeal as of right or to seek leave to appeal can determine whether they should exercise their entitlement.
5. See s 77A(7) of the Forensic Provisions Act.
There is nothing in s 160(2)(h) of the Mental Health Act 2007 (NSW) inconsistent with this construction of s 77A of the Forensic Provisions Act. Section 160(2)(h) confers a power to make provision with respect to:

“making written reasons for decisions or determinations of the Tribunal available”.

This language is not apt to condition the obligation of the Tribunal to give reasons upon making regulations to be made requiring it to do so. Section 60(2)(h) enables regulations which, among other things, prescribe procedures for making the Tribunal’s reasons available to interested parties and others. The extent of the Tribunal’s obligation in a particular case depends on the functions it has to perform and the scheme of the legislation. [6]

**********

6. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [45]-[46] per curiam.

Endnotes

Decision last updated: 10 November 2017

Medium Neutral Citation:	Minister for Mental Health v A [2017] NSWCA 288
Hearing dates:	27 September 2017
Decision date:	10 November 2017
Before:	Beazley ACJ at [1]; White JA at [161]; Sackville AJA at [163]
Decision:	(1) Remove the Mental Health Review Tribunal as a party to the appeal; (2) Dismiss the appeals against the determinations made by the Mental Health Review Tribunal on 15 December 2016, 3 February 2017 and 21 June 2017; (3) The appellant to pay the respondent’s costs in this Court.
Catchwords:	MENTAL HEALTH – determination by Mental Health Tribunal to grant conditional release of forensic patient – whether Tribunal misapplied ss 43(a) and (b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) PROCEDURE – whether Tribunal failed to set out reasons for determination – no express obligation to give reasons – obligation implicit in construction of s 77A – reasons adequate in this case PROCEDURE – whether Minister entitled to adduce fresh evidence on appeal by way of rehearing
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 42, 43, 46, 47, 51, 52, 74, 75A, 76A, 77, 77A Mental Health Act 2007 (NSW), s 140 Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30 A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363 Attorney General for the State of New South Wales v XY [2014] NSWCA 466 Kostas v HIA Insurance Services Pty Limited (2010) ALR 228; [2010] HCA 32 Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Category:	Principal judgment
Parties:	Minister for Mental Health (Appellant) A (Respondent)
Representation:	Counsel: M Windsor SC; G Wright (Appellant) P Griffin SC; N Evans (Respondent) Solicitors: Henry Davis York (Appellant) NSW Legal Aid – Mental Health Advocacy Service (Respondent)
File Number(s):	2017/10970;2017/69771;2017/195003
Publication restriction:	Yes
Decision under appeal	Court or tribunal: Mental Health Review Tribunal Date of Decision: 15 December 2016; 3 February 2017; 21 June 2017 Before: 15 December 2016: R Cogswell SC; M Giuffrida; L Houlahan; 3 February 2017: R Cogswell SC; E Parmegiani; S Woods; 21 June 2017: R Cogswell SC; S Spencer; F Cox File Number(s): F0783