Key legal decision

Attorney General's appeal allowed

The NSW Court of Appeal has allowed an appeal by the Attorney General for NSW against a decision dismissing an application seeking the extension of the respondent’s status as a forensic patient under Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act).

The Crown Solicitor’s Office acted on behalf of the Attorney General in Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) [2025] NSWCA 248. The proceedings may have broader implications for practice and procedure in high risk offender matters.

The appeal concerned the proper test under s 122(1)(b) of the MHCIFP Act. The Court found that the word 'adequately' in s 122(1)(b) implies that the way in which the respondent’s risk is to be managed is concerned with reality rather than hypothetical possibilities.

Key points for NSW agencies

• The Court held that in assessing the adequacy of a proposed measure to manage an unacceptable risk posed by the respondent, the efficacy and reliability of the measure cannot be ignored. What is to be assessed and adjudged is the risk of the respondent causing serious harm to others and whether the appellant has proved that it cannot (not could not) be 'adequately managed by other less restrictive means'.
• The Court affirmed the earlier decision of Kirk JA that the three-month time limit applicable to interim extension orders (IEO) under s 131(2) of the MHCIFP Act applies on a per proceeding basis, giving the Court of Appeal a fresh power to make an IEO for up to three months on appeal.