Ruling accepts concession of New South Wales attorney-general
Australia’s High Court has affirmed a New South Wales primary judge’s decision refusing the state attorney-general’s request to extend an appellant’s status as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act).
The District Court of New South Wales found the appellant in Haines by his litigation guardian Ramjan v Attorney General of NSW [2026] HCA 34 unfit for trial for five counts of armed robbery and other offences that he had committed.
On 15 May 2017, the court set a limiting term of detention of seven years and seven months, backdated to 25 September 2014.
Under that order, authorities detained the appellant for care and treatment as a forensic patient under the Act’s predecessor, namely the Mental Health (Forensic Provisions) Act 1990 (NSW).
A 14 April 2022 interim order and an 8 July 2022 extension order extended the appellant’s status as a forensic patient.
Prior to the expiry of the 8 July 2022 extension order on 24 July 2025, the respondent, the NSW attorney-general, sought another extension order before the Supreme Court of New South Wales.
An interim order extended the appellant’s forensic patient status until 24 October 2025.
On 26 September 2025, Coleman J dismissed the attorney‑general’s summons seeking another extension order.
On 15 October 2025, the attorney-general appealed against Coleman J’s orders and also filed a notice of motion for an interim extension order under the Act.
On 20 October 2025, Kirk JA issued an interim order expiring on 19 December 2025. The appellant applied to review Kirk JA’s interim order for lack of power.
On 20 November 2025, the Court of Appeal of the Supreme Court of New South Wales denied the appellant’s review application and allowed the attorney-general’s appeal.
The appeal court set aside Coleman J’s orders, and instead ordered the extension of the appellant’s forensic patient status for two years from 20 November 2025.
Via a grant of special leave to appeal, the appellant appealed against the appeal court decision.
The attorney-general conceded that the High Court should issue orders removing the appellant’s forensic patient status.
According to the appellant, if the High Court accepted the attorney-general’s concession, a determination of the remaining issues would not be practically useful for the appellant and would not impact the appeal’s disposition.
In proposed consent orders dated 24 August 2026, the parties asked the High Court to allow the appeal. They agreed that the appeal court wrongly treated the satisfaction of s 122(1)(a) of the Act to the required standard as a common ground.
Accepting the attorney-general’s concession and the parties’ proposed consent orders, the High Court allowed the appellant’s appeal with costs and set aside the appeal court’s orders on 20 November 2025.
The High Court substituted the 20 November 2025 orders with orders dismissing the attorney-general’s appeal and ordering the attorney-general to pay the appellant’s appeal costs.
Contrary to what the appeal court had determined, the High Court explained that the parties had substantially disputed the issue of whether the case met the required standard for s 122(1)(a) of the Act before Coleman J.
The High Court noted that the appellant did not concede that the primary judge had erred.
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