Haines v Attorney General (NSW) [2026] HCA 34.

The decision in summary.

Haines v Attorney General (NSW) [2026] HCA 34 was decided on 9 September 2026. Edelman, Jagot and Beech-Jones JJ sat. The underlying matter concerned offences said to include an armed robbery in 2017. The person was found unfit to be tried, so there was no conviction. Instead he was dealt with as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and its predecessor. This note leaves the detail of the underlying matter to the court's published reasons.

Near the end of the limiting term, the Attorney General asked the Supreme Court to extend the person's forensic-patient status for two years. The primary judge refused. The Court of Appeal allowed the Attorney's appeal. The High Court then allowed a further appeal, set aside the Court of Appeal's orders, and left the refusal in place. The result was that the person was no longer a forensic patient.

The reasons are available on JADE at jade.io. The published reasons of the court are the authoritative record of what was decided.

What is a forensic patient in NSW?

A forensic patient is a person the courts supervise under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The status is not a sentence and it is not a conviction. It applies to people whose contact with the criminal law is shaped by a mental health impairment or a cognitive impairment.

The person may be detained in a mental health facility, in a correctional facility, or in another place, or may be released to the community on conditions. The point of the regime is care and public safety, not punishment. Because it can involve detention without a conviction, the Act sets out careful limits on when and for how long the status can continue.

How does someone become a forensic patient?

There are two main paths. The first is a special verdict. If a court finds that the person committed the act but had a mental health impairment or a cognitive impairment at the time and was not criminally responsible, the verdict is act proven but not criminally responsible. The person is not convicted.

The second path is unfitness to be tried. If a person is found unfit to be tried, the ordinary trial does not proceed. Instead the court holds a special hearing and decides, on the limited evidence available, whether the person committed the acts charged. A finding at a special hearing is not a conviction either. This was the path in Haines. The person was found unfit to be tried and then dealt with as a forensic patient.

The front end of this process, the fitness inquiry and the special verdict, is set out in a separate note on fitness to be tried and the special verdict in NSW. This note deals with what happens afterwards, once a person is already a forensic patient.

How long can a forensic patient be detained, and when are they released?

Where a person is found unfit and dealt with at a special hearing, the court sets a limiting term. A limiting term is the court's best estimate of the sentence it would have imposed had the person been convicted at an ordinary trial. It marks the outer edge of how long the person can be held as a forensic patient on that matter.

During the limiting term the Mental Health Review Tribunal supervises the person. The Tribunal must review each forensic patient at least once every six months. It can order continued detention, care and treatment, or release. The Tribunal must not order release, including conditional release, unless it is satisfied that the safety of the patient or any member of the public will not be seriously endangered. Before granting release it usually requires a report from an independent expert who is not involved in the person's care and who addresses public safety.

A person released to the community stays subject to conditions and to ongoing review. If they breach a condition or their mental state declines, the Tribunal can order that they be detained again. When the limiting term ends, forensic-patient status normally ends with it. That is the point at which an extension order comes into play.

What is an extension order under section 122?

An extension order keeps a person a forensic patient after the limiting term would otherwise end. It is a form of preventive control that continues supervision beyond the term the court once fixed. Because of that, the Act sets a high bar.

Under section 122 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Supreme Court can make an extension order only if it is satisfied, to a high degree of probability, of two separate things. The first is that the person poses an unacceptable risk of causing serious harm to others. The second is that the risk cannot be adequately managed by other, less restrictive means. Both limbs must be met. A finding on one is not enough.

Only the Minister administering the Act can bring the application, and only in the last six months of the limiting term or an existing extension order. The court can also make an interim extension order to hold the position while a final application is heard. The onus sits on the applicant throughout. The person is not required to prove that they are safe; the State must prove that they are not, and that nothing short of continued forensic status will manage the risk. The Act itself is available on the NSW legislation register.

What did the High Court decide in Haines v Attorney General (NSW)?

The primary judge in the Supreme Court refused the extension order. The judge was not satisfied to the required standard of either limb of section 122. On the expert evidence, the judge was not satisfied that the person posed an unacceptable risk of causing serious harm. The judge was also not satisfied that any such risk could not be managed by less restrictive means. The Attorney General had failed on both.

The Court of Appeal allowed the Attorney's appeal. It proceeded on the basis that the first limb, the unacceptable-risk finding, had been common ground at first instance. That mattered, because if the risk limb was accepted, the case turned only on the less-restrictive-means question.

In the High Court the Attorney General, as respondent, conceded that satisfaction of the unacceptable-risk limb had not been common ground below. That concession pulled the footing out from under the Court of Appeal's decision. Once the premise was corrected, working through the remaining questions would have had no practical utility. The High Court accepted the concession, allowed the appeal, and set aside the Court of Appeal's orders. The Court published its reasons on 9 September 2026. The refusal of the extension stood, and the person was no longer a forensic patient.

Why did the point about "common ground" matter so much?

Appeals are decided on the case that was actually run. If an appellate court treats a contested issue as agreed, it can end up deciding the matter on a false basis. Here the Court of Appeal took the unacceptable-risk limb as settled. The primary judge had not found it settled. The judge had found against the Attorney on that very point.

When the parties agreed in the High Court that the limb had not been common ground, the reasoning that supported the Court of Appeal's order fell away. The High Court did not need to resolve the deeper questions about how section 122 applies on the facts. It was enough that the appellate decision rested on a mistaken premise, and that both sides accepted as much. The appeal was resolved on that footing.

The practical lesson is about the record. What was conceded, what was contested, and what a judge actually found are questions of fact about the proceedings. Getting them right is part of running an appeal properly. A concession that was never made cannot carry an appellate result.

What the decision means for forensic patients and their families.

The case is a reminder that section 122 sets a real threshold, and that the threshold has two parts. Continuing to hold a person as a forensic patient past the limiting term is not automatic. The State has to prove both an unacceptable risk of serious harm and that the risk cannot be managed by less restrictive means, each to a high degree of probability. If the evidence does not reach that standard on either part, the extension does not follow.

For a person who is a forensic patient, or for their family, the message is that the expert evidence and the management options both count. A risk that can be handled through conditional release, supervision or community treatment is not a basis for an extension order on its own. These are matters where careful evidence and early advice make a difference, both before the Tribunal and in any Supreme Court application.

Frequently asked.

What is a forensic patient in NSW?

A person the courts deal with under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), usually after a special verdict of act proven but not criminally responsible, or after being found unfit to be tried and dealt with at a special hearing. It is not a conviction. The person may be detained or released on conditions, and is supervised by the Mental Health Review Tribunal.

How long can a forensic patient be detained in NSW?

Where the person was found unfit and dealt with at a special hearing, the court sets a limiting term, its best estimate of the sentence it would have imposed on a conviction. The Tribunal reviews the person at least every six months and orders continued detention, care, or release. Release is only ordered where the safety of the patient or the public will not be seriously endangered.

What is an extension order under section 122?

An order that keeps a person a forensic patient after the limiting term would end. The Supreme Court can make one only if satisfied, to a high degree of probability, that the person poses an unacceptable risk of causing serious harm to others and that the risk cannot be adequately managed by less restrictive means. Both limbs must be met.

Does an unacceptable risk always justify keeping someone a forensic patient?

No. The risk finding is only one limb. The court must also be satisfied that the risk cannot be adequately managed by less restrictive means. If conditional release, supervision or community treatment can manage the risk, an extension order will not be made even where a risk is found.

Who can apply for an extension order and when?

Only the Minister administering the Act. The application can be made in the last six months of the limiting term or an existing extension order, and not more than six months before it ends. The court can also make an interim extension order to hold the position while a final application is decided.

What happened in Haines v Attorney General (NSW)?

The primary judge refused an extension order because neither limb of section 122 was made out. The Court of Appeal allowed the Attorney's appeal on the view that the risk limb was common ground. In the High Court the Attorney conceded it was not common ground, which removed the basis for the appellate decision. The High Court allowed the appeal and set aside the Court of Appeal's orders.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 14 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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