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[2026] NSWSC 1256
General information, not legal advice.
Supreme Court of NSW
2026-10-13
Hamill J
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General for New South Wales v Perry (bht Limbury) (Preliminary) [2026] NSWSC 1256
Hearing dates: 21 September 2026
Date of orders: 13 October 2026
Decision date: 13 October 2026
Jurisdiction: Common Law
Before: Hamill J
Decision: (1) The summons is dismissed pursuant to s 126(6) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
(2) Order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
(3) The parties are to notify my Associate within seven days as to whether there is to be any application for, or agreed order as to, costs.
Catchwords: CIVIL LAW – forensic patient – application for extension order – hard case – test to be applied at the preliminary stage – interim order – prohibition on Judge “weighing” material – application of statutory language – inutility of comparison to committal proceedings – need to evaluate supporting documentation on the assumption it will be proved – “a lot of material” – delightful understatement – “diminishing returns” – pointlessness of crying “uncle”
CIVIL LAW – interim extension order – repeated extensions of status as forensic patient – continued confinement – treatment resistant schizophrenia –intensive treatment including electroconvulsive therapy making condition worse – cognitive impairment – management issues – analysis of history of violence and aggression – inconsistencies between past reports and police criminal records – meaning of expression “if proved” where material inconsistent – where last serious offence of violence committed 14 years earlier – where last act of physical violence more than one year ago – instances of lashing out – where behaviour improved with lifting of restrictions – where defendant remains mentally unwell – quick to anger – resentment towards restrictions on freedom – risk factors – drug use – improvement in self-reporting lapses – where expert psychiatrist urges continuation of status – Court charged with task of applying statutory test – where older expert reports prepared in vacuum in terms of evidence of less restrictive means – consideration of the whole of the material – consideration of “less restrictive means” to protect against risk – need for such means to be realistic not hypothetical
CIVIL LAW – application of precedent – where otherwise binding appellate authority overturned by High Court – where High Court appeal decided on specific point – status of authority
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5B(d), 5D, 9(1)(a), 10A(b)
Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 9, 16(1), 17
Mental Health Act 2007 (NSW), ss 12, 13, 14, 50, 51, 52, 53, 54, 55, 56, 58, 59
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 19(c), 59(1)(c), 121, 121(2), 122, 122(1), 122(2), 124(1)(b), 124(2)(b), 125, 125(b), 126(1), 126(5), 126(6), 127(1), 127(1)(a), 127(2), 127(2)(b), 128, 130, 130(a), 130(b), 131
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 24(1), 33(1)(c)
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 20(d), 21, 27(b)
Cases Cited: Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) (2025) 118 NSWLR 450; [2025] NSWCA 248
Attorney General for New South Wales v Mailes (Preliminary) [2021] NSWSC 298
Attorney General for New South Wales v MM (a pseudonym) (bht Ramjan) (Preliminary) [2026] NSWSC 1245
Attorney General for New South Wales v Perry (bht Johnson) (Final) [2024] NSWSC 1374
Attorney General for New South Wales v Perry (bht Johnson) (Preliminary) [2024] NSWSC 1002
Attorney General for New South Wales v Perry (No 2) [2019] NSWSC 1141
Attorney General for New South Wales v Tillman [2007] NSWCA 119
Attorney General (NSW) v Hayter [2007] NSWSC 983
Attorney General of New South Wales v AB (a pseudonym) [2026] NSWSC 79
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Dale Haines by his litigation guardian Barbara Ramjan v Attorney General of NSW [2026] HCA 34
State of New South Wales v Lidster (Final) [2020] NSWSC 788
State of New South Wales v Loveridge [2026] NSWSC 533
State of New South Wales v Mustapha (Final) [2025] NSWSC 1339
State of New South Wales v Schmidt [2019] NSWSC 764
State of New South Wales v Sleeman (Preliminary) [2025] NSWSC 957
State of New South Wales v Steven Single [2019] NSWSC 176
State of New South Wales v Stevenson (Final) [2019] NSWSC 778
State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883
The State of New South Wales v Reginald Collingwood (a pseudonym) [2021] NSWSC 1365
Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: Attorney General for New South Wales (Plaintiff)
Barbara Perry (by her tutor Mr Ashley Limbury) (Defendant)
Representation: Counsel:
S Palaniappan (Plaintiff)
J Brock (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)
File Number(s): 2026/00300154
Publication restriction: N/A
By summons filed on 17 July 2026 the State of New South Wales seeks orders pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) against Barbara Anne Perry, a 46-year-old, mentally unwell Wiradjuri woman.
By prayer 3, the summons seeks a final order under ss 121, 127(1)(a) and 128 of the Act by which Ms Perry’s status as a forensic patient would be extended by a period of 18 months (an “extension order”). [1] At this stage, the State seeks an interim extension order under ss 130-131 for a period of three months, the maximum period allowed by s 131 (prayer 2) and interlocutory relief under s 126(5) appointing experts to provide reports and an order directing Ms Perry to attend for examinations by those experts (prayer 1). The defendant opposes the making of the interim order and submits the summons should be dismissed pursuant to s 126(6).
Section 121 provides this Court with the power to make an extension order. There are various formal requirements, relating to the timing of the application and certain notice requirements, and there is no dispute that each of these is satisfied. However, the defendant disputes that the requirements of s 122 are established even for the purposes of the preliminary hearing. That section provides that a forensic patient can be subjected to an extension order “if and only if” the Court is “satisfied to a high degree of probability that (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means”: s 122(1). In reaching that degree of satisfaction, the Court is “not required to determine that the risk of a person causing serious harm to others is more likely than not”: s 122(2).
In addressing those questions and before an extension order “can be made”, the Court “must have regard to” the list of matters identified in s 127(2)(a)-(i) “in addition to any other matter it considers relevant”: s 127(2).
To make the interim order and grant the interlocutory relief it must “appear to the Court … that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”: ss 126(5) and 130(b). The supporting documentation on the preliminary hearing comprised of something like 1,500 pages of material.
The parties urged different approaches to the test to be applied at this preliminary or interim stage and, in some respects, the difference between them is stark. While I was referred to several decisions of single Judges of this Court, neither party was able to take me to a decision of the Court of Appeal which dealt with this legislation or its predecessor. Two appellate decisions discussed in argument are of assistance.
The first is Attorney General [2007] NSWCA 119 (), a decision which dealt with interim orders under the (NSW), a statute since subsumed by and re-styled as the (NSW) (“HRO Act”). That statute and the (NSW) provide analogous schemes of interim and final orders and employ the same, or relevantly indistinguishable, statutory language to the Act. In particular, the test for the making of a final order requires satisfaction “to a high degree of probability” that the offender poses “an unacceptable risk”: HRO Act, s 5B(d); THRO Act, s 20(d). The question at the preliminary stage is also the same; that is whether “it appears to the Court that … the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”: HRO Act, s 10A(b), THRO Act, s 27(b).
“If a decision of a court is reversed on appeal, the reasoning which led to the court’s conclusion ceases to be binding both as to points on which the court was reversed and also points on which the appeal was not taken. The reasons can be of no greater authority than those of a dissenting judge on appeal, whose reasons do not form part of the ratio and are not binding. Of course, reasons not disapproved on appeal may still be persuasive.” [2] (footnotes omitted)
On 2 April 2014, Ms Perry was arrested and charged with the ‘index’ offences, being one count of aggravated assault with intent to rob with wounding or grievous bodily harm, and two counts of assault occasioning actual bodily harm. The charges arose from three unprovoked and temporally connected attacks on “elderly” women the previous day. The facts of the offending are set out in further detail at [19].
On 2 November 2015, Judge Henson found that Ms Perry was unfit to stand trial and she was referred to the Mental Health Review Tribunal (“MHRT”) pursuant to s 14 of the Act’s predecessor, the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the former Act”).
On 14 July 2017, following a special hearing under Part 4 Division 3 of the Act, Judge Girdham SC reached verdicts that each of the offences was proved on the limited evidence available: s 59(1)(c).
On 18 August 2017, her Honour imposed an overall limiting term of 5 years and 2 months, commencing on 2 April 2014 and expiring on 31 May 2019, and ordered that Ms Perry be detained in an appropriate institution until further assessed by the Tribunal pursuant to s 24(1) of the former Act.
On 16 August 2019, Wright J made an order extending Ms Perry’s status as a forensic patient for a period of 5 years: Attorney General for New South Wales v Perry (No 2) [2019] NSWSC 1141.
On 17 October 2024, Dhanji J extended Ms Perry’s status as a forensic patient for a further 2 years: *Attorney General for New South Wales v Perry (*bht Johnson) (Final) [2024] NSWSC 1374. That order will expire on 17 October 2026.
From this chronology and the material upon which it is based, I am satisfied that the following statutory prerequisites for a further extension order, including the proposed interim order, are satisfied. That is:
Ms Perry is a forensic patient subject to an existing extension order: s 124(1)(b).
The application was made within 6 months before the expiry of the existing extension order: s 124(2)(b).
The existing extension order will expire before the proceedings are determined: s 130(a).
The application also complied with the requirements of s 125 and an affidavit of the Attorney General’s solicitor establishes that the appropriate notice under s 126(1) was provided.
“In relation to count 1 Mrs V1 left her flat in the M18 Building at approximately 12.30pm on 1 April 2014 and was approached or confronted by Ms Perry who struck her in the face with sufficient force so as to cause Mrs V1 to impact against the wall. Ms Perry took her handbag and continued to strike Mrs V1 to the head and body. Mrs V1’s neighbour heard the screams, opened the door and saw Mrs V1 on the ground screaming with Ms Perry standing beside her kicking her legs and she had a hold of Mrs V1’s handbag. Mr W2, the neighbour’s husband, also witnessed the incident and recovered the handbag from Ms Perry. There was no issue at the special hearing that the injuries sustained as a result of the offence amount to grievous bodily harm.
…
The victim in count 2, Mrs V2 was aged 90 at the time of the offence and sustained a fracture to her right shoulder blade which was extensively bruised. She had been confronted by Ms Perry after Ms Perry had committed the attack on Mrs V1 and after Mrs V2 had made her way up the concrete steps which led to the doors of her apartment block. Ms Perry blocked her entrance and then shoulder barged her with the result that Mrs V2 tumbled back down the concrete stairs.
…
The third offence of assault occasioning actual bodily harm on Mrs V3 comprised of a single punch to her mouth resulting in a cut. Mrs V3 had left the main door of her unit building, she turned around to close the door which is normally kept closed, and she was approached by Ms Perry who said ‘leave that door open’. Ms V3 stated ‘I’m a tenant and the door should be closed’. Then and without warning she punched to the right side of [Ms V3’s] mouth and then head-butted [her]. [Ms V3] said she felt immediate pain, she screamed and her mouth began to bleed. She attended her GP surgery the next day and the fact that she had abrasions over the right side of her upper and lower lips was noted.
It is apparent that each attack was random and unprovoked.”
Despite undergoing two surgeries and the insertion of a plate, V1 suffered a permanent injury to her left eye causing impaired vision. She also required sutures for a cut on her lip and sustained facial bruising and swelling as well as an injured knee. V2, who was 90 years old at the time of the incident, spent about two weeks in hospital following the attack and was treated for a fracture to her shoulder blade, and pain in her right arm and right rib. V3 suffered a cut to her mouth after being punched in the face by Ms Perry.
Judge Girdham described the respective offences against V1, V2 and V3 as “brutal”, “bullish” and “vicious”.
Ms Perry has twice been charged with criminal offences since the expiration of the limiting term imposed by Judge Girdham. Both incidents were diverted from the criminal justice system under the provisions of the Act or the former Act.
On 8 November 2020 Ms Perry was charged with an offence of assault occasioning actual bodily harm. The short facts of that offence were that Ms Perry punched another inmate at the Forensic Hospital within the Long Bay gaol. The punch was to the left eye and caused bruising and swelling. When the victim tried to push her away, the defendant punched her repeatedly to the head and stomach. The Waverley Local Court ordered her unconditional discharge into the care of the Forensic Hospital at Malabar pursuant to s 33(1)(c) of the former Act.
On 12 May 2021 Ms Perry committed a common assault which involved hitting another patient at the Long Bay Forensic Hospital in the back of the head. The victim suffered no injury and said she was shocked but that the blow did not hurt her. On 13 July 2021 the Waverley Local Court made an order under s 19(c) of the Act whereby the defendant was discharged unconditionally into the care of Dr Ellis (the Superintendent of the Forensic Hospital).
The assaults in 2020 and 2021 are the only criminal offences with which the defendant has been charged since 2014. However, the State relies on a series of incidents of violence and aggressive behaviour which are recorded in various reports, progress notes and the like. While there was some controversy at the hearing over whether the words “if proved” involved me accepting that the facts of these incidents were proved, or merely that it was proved that somebody had recorded that such incidents occurred, I propose – at least on these factual issues – to adopt the course suggested by counsel for the State. That is, I will accept that the incidents as described in the reports actually occurred.
The incidents for which there is at least some kind of record were set out in an annexure to the State’s submissions in reply. There were no incidents of violence or aggression from the time the common assault offence was dealt with in the Local Court in July 2021 until November 2022. Thereafter, and (more or less) adopting counsel’s brief description, there is evidence of the following incidents:
22 Nov****ember 2022: Threw a telephone at a nurse out of frustration.
11 Feb****ruary 2023: Punched a television.
28 Feb****ruary 2023**:** Punched a co-patient in the face four times.
8 March 2023: Threw an iPad at a co-patient and punched her.
There is a literal abundance of documents establishing Ms Perry’s chronic and acute mental health issues. These include psychiatric and psychological reports going back to 2014 and beyond, discharge summaries from hospitals where she has been admitted over the years, along with more recent clinical notes from her time in the Forensic Hospital. Ms Palaniappan acknowledged, with delightful understatement, that I had “a lot of material in front of [me]” and that there was “a question of diminishing returns” given that “the same history is just repeated by each of the practitioners”. [3]
Despite the repetition, the material was tendered by the State on the application and there seems to be little point in crying “uncle” at this stage or to again “scream into the void”: see, for example, A**ttorney General for New South Wales v Mailes (Preliminary) [2021] NSWSC 298 at [4] citing State of New South Wales v Lidster (Final) [2020] NSWSC 788 at [21], State of New South Wales v Stevenson (Final) [2019] NSWSC 778 at [19], State of New South Wales v Schmidt [2019] NSWSC 764 at [13]-[14], State of New South Wales v Steven Single [2019] NSWSC 176 at [6], State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 at [31]; and more recently see Dhanji J’s reference to six folders of material leading to a “regrettably” long judgment in State of New South Wales v Mustapha (Final) [2025] NSWSC 1339 at [52].
Despite the generous volume of material tendered, the State places most reliance on a recent report of Dr Dayalan and refers back to the older material to suggest there is a consistent body of expert opinion – including reports prepared for the 2019 and 2024 applications to this Court – which establish that the defendant poses (or did pose, or has posed for a long time) a “high risk of engaging in violent conduct” especially if she takes drugs. [4] The evidence shows there are two recent incidents of Ms Perry obtaining and using drugs.
The State tenders this material not so much to prove Ms Perry’s mental health issues, which are not disputed, but to support its case that Ms Perry represents an unacceptable risk of causing serious harm to others if she does not remain a forensic patient.
I interpolate that it has been held that “serious harm” means “something more than would satisfy the minimum threshold for ‘actual bodily harm’” but does not need to amount to “grievous bodily harm”: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16]-[17] (RA Hulme J). His Honour went on to say that any psychological harm “must be something more than emotions such as fear or panic”.
Much of what follows is taken from Dr Dayalan’s report dated 27 March 2026 which was prepared pursuant s 125(b) of the Act. However, I have also reviewed the volumes of source material and the (many) earlier reports and records.
“On 17 July 2023 staff discovered Ms Perry punching an elderly peer who was on the ground. The staff had to intervene to pull Ms Perry off the peer. Later analysis of the CCTV showed Ms Perry appearing to walk away from the peer with her back turned to the peer, and the peer then assaulting Ms Perry first by striking Ms Perry. During the assault, Ms Perry held the peer’s arm against the peer in order to prevent the peer from defending herself from the blows. The peer sustained no serious physical injuries. It was noted that the peer had accused Ms Perry of killing her children (delusional).”
Ms Perry remained “acutely psychotic” through 2023, 2024 and early 2025 with reports of auditory hallucinations, punching a wall and verbal aggression, but there had been no physical aggression towards other people. “She had been distressed by ongoing detention at the Forensic Hospital” [7] and there were attempts to establish SIL in the community, but NDIS providers and “stakeholders” were faced with many challenges in facilitating the transition. She was also physically unwell throughout this period, having contracted Hepatitis C, experienced recurrent urinary tract infections, and has diabetes and a cardiac condition.
In his judgments making the extension orders (interim and final) in 2024, Dhanji J noted that Ms Perry had made some progress “particularly and critically as regards a reduction in incidents of violence” and observed that his decisions to make the extension orders “should not be seen as a further step in an endless cycle of extensions”: [2024] NSWSC 1374 at [33] and [2024] NSWSC 1002 at [46].
Perhaps as a result of those comments, and perhaps as a consequence of her improved behaviour, steps commenced in 2025 for Ms Perry to live under a less restrictive regime. A “HCR-20” test was administered which noted a “high loading” of historical risk factors (including her history of trauma, exposure to violence and drug use) and clinical risk factors (including a lack of insight and “possible violent ideation”) but “[h]er risk of future violence, serious physical harm and imminent violence were all considered to be moderate”. However:
“High risk scenarios were taking illicit substances, feeling stuck in the Forensic Hospital, increase in aggression/violent behaviours from other patients, increase in stress, cultural dislocation, negative ward dynamics, withdrawal from family contact, deterioration in physical and mental state.” [8]
There is a controversy between the parties arising out of conflicting evidence relating to Ms Perry’s early criminal history. The document styled “Criminal History – Bail Report” provided by the New South Wales Police Force (“criminal history”) [9] does not include several entries which are referred to elsewhere in the material provided by the State.
By way of example, the criminal history does not record any convictions for physical violence offences until 2012 when there was a conviction with no further penalty for an offence of common assault. However, Annexure A to the State’s submissions in reply (referred to earlier at [26]) asserts that, in 1997, Ms Perry was:
“Charged with assault of mother following argument. Defendant grabbed mother and forced her to the ground, hitting her head repeatedly on the tiled floor”.
The third entry in Annexure A refers to an unknown date in 1998 when the defendant was “[i]nvolved in a brawl with a number of other young people whilst all intoxicated”. Again, there is no entry for any such offence in the criminal history and no evidence of any official police record of such an incident.
The sources of the information for both entries are said to be an “HRC-20” report dated 7 April 2025 and a risk assessment report by Dr Kerri Eagle dated 20 March 2019. Dr Eagle’s report is Tab 12 of Ex HG-1 [10] and says at [43]:
“A Justice Health MHRT psychology report dated 4 February 2019 made reference to a ‘history of (documented) violence’ that commenced ‘in 1997 when aged 17’ and ‘she was charged with an assault on her mother involving forcing her mother to the ground and repeatedly hitting her head on the tiled floor. This occurred in the context of ongoing aggressive behaviour between, and perpetrated by, both Ms Perry and her mother. Later that year Ms Perry was involved in a violent brawl with a number of other people whilst intoxicated.’ This information was not contained in previous Justice Health reports and it is unclear of the source of the information. It is possibly from a complete police report obtained by Justice Health from NSW Police containing unsubstantiated allegations and facts. The charges are not referred to in Ms Perry’s criminal record.” (Italics in original.)
“Limited documented violence in adolescence. What is documented is two accounts at the age of 17 years.
1997 – Charged with assault of mother following argument. Patient grabbed mother and forced her to the ground, hitting her head repeatedly on the tiled floor.
1998 – Involved in a brawl with a number of other young people whilst all intoxicated.”
The conflict in this material provides an example of the different approaches taken by counsel as to the operation of ss 126(5) and 130(b) and the import of the phrase “if proved” in those sections.
Mr Brock submitted (with my emphasis): [11]
“BROCK: So this entry that is undated [in] 1997 appears to be derived from a health record that references some [counts], two [counts] when Ms Perry was aged 17. The difficulty is that we don't know actually what the documents were that were referenced. Again, what is being proved here is that the progress note writer had regard to some documents. We don't know, for example, what those documents were. We don't know the circumstances in which this interaction with her mother transpired. We don't know what her involvement in the alleged brawl was.
HIS HONOUR: Doesn't that fit into a very strong example of something which, if proved, might have certain consequences?
BROCK: It just can't be the case that ‘if proved’ would extend so far that a second-hand account would prove the facts of its description. What is proved here is that this particular report writer or progress note writer had access to that information.”
“What I am again trying to emphasise is that these things can't just be looked at as, ‘well, there is [an] entry for assault involving her mother and therefore that is proved’. It has to be assessed in terms of the entire context, and the entire context actually means that is of very little assistance in terms of assessing her risk at a preliminary stage, because we just don't know the circumstances of that suggestion.”
“Effectively the gist of the submission is that in fact this legislation is drafted in a way where the provision operates as a deeming provision. So you have matters alleged that would, if proved. So it is not that they are required to be proved at this stage, and in fact the legislative scheme is - the whole point of it is set up so that at the preliminary stage all your Honour has to be satisfied of is if the matters alleged were proved it would justify making the order.
In my submission, that fits with the context and purpose of the legislation, which, for example, as we discussed earlier, the interim order can only be made for a period of three months. This is not the be all and end all. It is a marker in the sand that allows reports to be obtained in order to get to the final stage of the hearing where an order will not be made unless the Court is satisfied to a high degree of probability.”
“PALANIAPPAN: I think it does, your Honour. It is slightly vexed, in the sense that Dr Eagle must have obtained that information from somewhere. It is not in that criminal history, but at this point I'm not sure that it is necessary that it be corroborated by other evidence.”
The issue of the defendant’s early criminal history was also complicated by reference to a series of offences said to be committed under the “known alias, Ms Sheynell Perry”. The criminal history refers to several aliases but makes no reference to an alias of “Sheynell”. However, an expert report of Dr Yolisha Singh dated 26 June 2019 referred to offending “under a known alias, Ms Sheynell Perry”. [14]
To further complicate precisely what the Court should assume will be proved, Dr Singh’s report does not refer to the 1997 and 1998 offences. Rather, it states that “[h]er first violent offence was a conviction of assault person with intent to resist arrest, 2001”. She then refers to convictions for common assault (2002), assault occasioning actual bodily harm (2002) and malicious wounding (2004) before noting “that this is the period during which she is reported to have developed a psychotic illness.” She goes on to refer to convictions for common assault (2008), assault occasioning actual bodily harm (2010) and common assault (2012).
Apart from, possibly, the common assault in 2012, none of those offences appear on the criminal record provided by the NSW Police and tendered as part of the supporting documentation.
It is far from satisfactory that there is no more clear and official police record of these (alleged) early acts of violence and that there is no explanation for the absence of these offences, or this alias, in the criminal history. Dr Dayalan did not refer to these early offences in his report dated 27 March 2026 although he had regard to the reports of both Dr Eagle and Dr Singh. Dr Dayalan was more focused on Ms Perry’s more recent history of violence and aggression.
While I am uncomfortable about acting on such uncertain evidence, and am far from certain that this is what the Act mandates, I propose to proceed on the basis that it will be proved that Ms Perry committed these various acts of violence from the age of 17 and that, as Dr Singh says, the offences from about 2002 coincided with the onset of her mental illness. However, these early incidents are not particularly probative of the assessment of risk 20 years later in late 2026. Of far more significance is the history of violence since 2014 and a consideration of Ms Perry’s progress since Dhanji J made the extension order in 2024.
“The defendant, as I have indicated, advocates for a term of two years. In that context, it is submitted that the defendant has demonstrated feelings of hopelessness at the prospect that she may never be released from the Forensic Hospital. The defendant's concern in this regard is identified as a risk factor for deterioration in her presentation, thus contraindicating the benefit of an order for as long as three years. In the defendant's submission, an order for two years would appropriately balance the risk that the defendant currently demonstrates if not subject to an order, against the risk that an overcautious approach will extinguish hope in the defendant for release, potentially precipitating a deterioration. Such a deterioration will both increase the risk posed by the defendant and delay any ultimate release to the community.
As I have observed, the defendant was subject to an overall limiting term of five years and two months, followed by an extension for a period of five years, with the result that she has been continuously detained since her arrest on 2 April 2014. Her current mental illness and overt symptomology are such that transition to the community within two years may appear optimistic. The reality is, though, as I understand the opinion of the experts, the defendant's condition will remain ongoing, but it is hoped that that condition can be managed so that it does not result in a risk of serious harm to others.
Given the difficulty identified by Dr Smith in determining an appropriate length of time together with the potential detrimental effect on the defendant of an order for as long as three years, I am of the view that the appropriate term is one of two years.”
Dr Dayalan’s report of 27 March 2026 summarised helpfully various reports and documents and provided a somewhat chronologically disjointed narrative of recent events. This included the reduction of restrictions through 2025 to 2026 and Ms Perry’s progress and setbacks during this time. He identified various risk factors and protective factors and analysed the less restrictive regime that is available if Ms Perry ceases to be a forensic patient. While acknowledging that Ms Perry is “institutionalised”, his opinion (at [132]) is that continuation of the “forensic patient status would be required when Ms Perry transitions into the community” and his recommendation (at [139]) is that she remains a forensic patient for at least 12 months for further evaluation of the services available to manage the risk.
From paragraphs [82]-[100] of his report, Dr Dayalan went through some of the source material and referred to the following recent incidents and developments:
On 7 April 2025 Ms Perry was transferred to Blacktown Hospital and was thought disordered and there was a record of “chronic delusions”. Urine tests were negative for substances other than benzodiazepines (which I assume were prescribed). An assessment on 19 June 2025 suggested she was significantly cognitively impaired. There was a report that she attempted to strike a nurse on 8 August 2025 “but the nurse stepped back”.
On 8 September 2025 Ms Perry wandered off after an NDIS worker went to the toilet carrying Ms Perry’s fast-food meal. The defendant called a relative and visited an aunt where police picked her up. Testing on her return did not indicate any drug use.
She was admitted to the Budyari Gumada Unit, continued to “display psychotic features” as at 19 September 2025, and her medication regime was changed. She showed “episodes of agitation but did not exhibit physical aggression towards anyone.” Based on various factors, she was assessed as falling into a group of people with a high risk of engaging in future violence.
During this period she was allowed “regular leave with NDIS workers” and SIL accommodation was identified. However, on 30 September she became “agitated and verbally abusive” and complained that other inmates/patients were allowed daily leave while she was more restricted. Staff noted her mental state had declined with poor sleep patterns and the need for “constant redirection”. Her antipsychotic medication was increased.
She continued to be psychotic in September 2025 and went missing on 6 September. An order for her detention was issued but she returned to the unit later in the day.
Ms Perry’s father died in November 2025. In November and December 2025 Ms Perry was reported to have expressed paranoid thoughts about staff taking her money, being “held hostage” and cameras in her accommodation.
The agreed position of the parties is that Ms Perry is subject to a guardianship order, has substantial NDIS funding and ongoing access to SIL accommodation and Resolve Care Services. As a mentally ill person she will be (or is almost certain to be) subject to relevant provisions of the Mental Health Act 2007 (NSW). That could involve involuntary admission to a mental health facility (subject to restrictions and provisions of ss 12-14) or being subject to a community treatment order (“CTO”) (under ss 50-56). Dr Dayalan proceeds on the assumption that the defendant will be subject to, at least, a CTO.
An NDIS approval letter indicates there is an annual budget of $822,925.08 which was approved in May 2025. That is due for review in December this year but there is no suggestion that the NDIS support will not continue. A lengthy “Comprehensive Behaviour Support Plan” is included in the material tendered by the State. [15] Over those many pages, the difficulties confronting Ms Perry are set out realistically and the high level of support that will (and has been) available to manage her behaviour is described in granular detail, encompassing everything from her bathing and hair care, communication difficulties, interventions directed to her psychiatric and cognitive disabilities, and critically for present purposes, managing her aggression. This includes the need for a “CTO when she is discharged from hospital to support medication adherence … as well as linkage to Mental Health community teams.” [16]
Documentation concerning the role of the Public Guardian [17] establishes the support available to manage her affairs financially, including assistance in obtaining her current accommodation in the community.
A “Transition/Discharge Plan into SIL” summarises in tabular form some of the supports available in the community. [18]
A letter from Dr Wilson seemingly dated 15 July 2026 notes that:
“The Budyari Gumada Unit team feel as though Barbara’s clinical risk profile has reduced such that she could be released in this period [that is, July to October/November 2026] of the least restrictive form of safe and effective care at this time. Should her hearing be delayed until January 2026, in all likelihood this could risk over securitising Barbara’s care with little further clinical gain from an inpatient admission.” [19]
“The task assigned by s16(1)(b) is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General’s supporting documentation**.”**
The “elevated standard of proof” is a reference to the requirement in (then) ss 9 and 17 that, to make a final order, the Court had to be satisfied “to a high degree of probability” that the defendant is likely to commit a further serious sex offence. Subsequent amendments have included clarification – such as that in s 122(2) of the Act that the Court is “not required to determine that the risk of a person causing serious harm to others is more likely than not”: see for example, HRO Act, s 5D, THRO Act, s 21.
As I said at [9], the more directly relevant authority in AG v Haines is no longer strictly speaking binding because it was overturned by the High Court on a different issue. However, the reasoning remains persuasive and I have approached the present application in accordance with the approach suggested by the Court of Appeal. Relevantly, the Court said (with my emphasis):
“84. The Court’s task of assessing whether the unacceptable risk posed by the respondent could be ‘adequately managed by other less restrictive means’ could not be fulfilled merely by expressing a preference for one competing expert opinion over another. That question was an (and in this case, the) ultimate question. It was the Court which was required to be satisfied under s 122, not the experts. The primary judge was required to undertake his own evaluative assessment of risk, informed by all of the evidence, including the opinions of the experts, who both opined in their written reports on the ultimate question, as they were entitled to do: s 80 of the Evidence Act 1995 (NSW).
- The primary judge posed the question in [113] whether the issue in s 122(1)(b) was to be resolved by reference to whether a less restrictive means of managing the risk posed by the respondent was available (that is, whether the risk posed could be managed) or whether the question was whether a less restrictive means would in fact be sufficient to manage the risk and decided that the former was the correct test. The appellant submitted, by ground 2, that this was incorrect.
86. In the Second Reading Speech for the Mental Health (Forensic Provisions) Amendment Bill 2013 in the New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25639, which inserted the provisions which are presently relevant into the Act, the then Attorney General, the Honourable Greg Smith said of present relevance:
Detention for the protection of the community should only ever occur in exceptional circumstances. Such detention is permissible if it can be demonstrated that less intrusive alternatives have been expressly considered and found to be unsuitable. This proposal specifically requires the Supreme Court to consider the availability of less restrictive options, such as the transfer to the civil mental health scheme, the making of a guardianship order or entry into the Community Justice Program, before making an order.
87. While the word ‘availability’ is used in this passage, it is plain that the ‘less intrusive alternatives’ must be considered and ‘found to be unsuitable’. We do not regard the Second Reading Speech as favouring the primary judge’s construction.
88. We consider that his Honour was incorrect to find that it was sufficient to defeat an application for extension if there were an alternative means available which ‘could’ manage the risk posed by the respondent. This construction is at odds with the protective purpose of the Act and is inconsistent with the word ‘adequately’, which implies that the way in which the risk is to be managed is concerned with reality rather than hypothetical possibilities. Protecting safety is a question of practical outcomes, not theoretical possibilities. It follows that, in assessing the adequacy of a proposed measure to manage an unacceptable risk, 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’.”
“When a judge makes orders following a preliminary hearing under s 126, the judge is making an interlocutory and in some respects preliminary assessment based on whether the matters alleged in the plaintiff’s documentation would, if proved, justify making an order. The Court is not generally weighing up the documentation, predicting the ultimate result, or considering what evidence a defendant might call: Attorney General (NSW) v Tillman [2007] NSWCA 119 at [98]. While the Court does assess the ‘weight’ of particular aspects of evidence as well as the ‘weight’ of the supporting documentation as a whole (State of NSW v Heness (Preliminary) [2019] NSWSC 1710 at [29]), the Court does so for the particular purpose of a preliminary hearing. The test has been described as being akin to that which formerly applied to the determination of whether a prima facie case existed sufficient to justify the committal of a defendant to stand trial, and may involve taking evidence at its highest: State of NSW v Rosenburg (Preliminary) [2025] NSWSC 191 at [21]. The Court may give particular weight to risk-avoidance: Attorney General (NSW) v Winters [2007] NSWSC 611 at [7]. A defendant will typically be slow to put on any evidence in advance of a preliminary hearing, and such evidence may have limited utility on the primary question for the Court (which is directed to the matters alleged in the plaintiff’s documentation).”
“23. Section 10A of the Act provides that this Court may make an order for an ISO if it appears to the Court:
(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (Emphasis added.)
24. Thus, the statutory test to be applied at the preliminary hearing in order to make the ISO and order the appointment of court experts is that it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983 [“Hayter”] at [6].
25. During the preliminary hearing before me, an issue arose as to the nature of this Court’s task at the preliminary hearing where aspects of the supporting material are contested by the parties.
26. The nature of the Court’s task at the preliminary stage was described as a ‘balancing exercise’ by Harrison J (as his Honour then was) in State of New South Wales v Pacey [2015] NSWSC 1983 at [44] (‘Pacey’):
‘The assessment that I am required to make on this application for orders pursuant to s 7(4) and s 10B of the Act is the equivalent of an inquiry into the existence of a prima facie case. It nevertheless follows that the difficult task that is to be undertaken necessarily involves a balancing exercise taking into account all of the positive and negative material in the supporting documentation, based upon the assumption that it can ultimately be proved.’ (Emphasis added.)
27. As for what is meant by assuming that the ‘matters alleged’ will be proved, in State of New South Wales v Mustapha (Preliminary) [2025] NSWSC 926 (‘Mustapha’), Wright J considered this phrase in the context of s 27(b) of the Terrorism (High Risk Offenders) Act 2017 (NSW), which is relevantly identical to s 10A(b) of the Act. His Honour observed the following (at [35]-[38], [41]):
‘[35] The expression “matters alleged” has been held to refer to facts rather than conclusions. In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J said that the test does not require “prima facie” proof of the matters alleged and continued:
“[7] … I should make it clear that the term ‘matters alleged’ does not refer to a conclusion. It refers to matters of fact that, if proved, would be open to lead to a particular conclusion.
[8] To use an example may better illustrate the distinction. If an application for an ISO and/or ESO were to allege that a person was ‘a terrorist’, that would not, in my view, of itself, satisfy the condition prescribed by s 27(b) of the THRO Act. Whether or not the defendant in any such hypothetical proceeding was ‘a terrorist’ is a conclusion that must be based upon facts that are adduced.
[9] In such a circumstance, it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO…
[10] As a consequence, the ‘matters alleged’ must be facts or based on facts that are, firstly, capable of being proved; and, secondly, such that, if proved, they would satisfy the Court that an ESO should or would be made.”
[36] In my view, Rothman J’s comment that the phrase “matters alleged” refers to facts not conclusions should be understood as distinguishing between facts, including inferences and expert opinions based on other facts, on the one hand, and, on the other hand, necessary or ultimate conclusions as to the issues which the Court has to decide, for example whether a defendant poses an unacceptable risk of committing a serious terrorism offence.
[37] Thus, if the supporting documentation included an expert psychiatrist’s or psychologist’s opinion as to the likelihood of the offender committing a serious terrorism offence, as referred to in s 23(3)(b) and (c), that opinion would be a “matter alleged” in the supporting documentation. If other matters alleged in the supporting documentation provided a substantial reason to doubt the validity or correctness of such an opinion, that would be a matter that should be taken into account in determining whether to refuse to exercise the discretion to make an ISO if the power to do so under s 27 is enlivened.
[38] Further, Campbell J held in State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 at [48] that in applying the test in ss 24(5) and 27(b):
“… it is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff’s case and to take them at their highest when deciding whether the test articulated in s 27(b) has been made good in all the circumstances of the case.”
…
[41] N Adams J accepted that the test on a preliminary application under the THRO Act is a “low one” in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]. Garling J took the same approach in State of New South Wales v Sturgeon [2019] NSWSC 559, when considering substantially the same wording in the Crimes (High Risk Offenders) Act 2006 (NSW). His Honour said at [5] - [6]:
“The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court’s function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or [an] ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by [the defendant] at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [98].”’
Subject to the following caveats, I approach the present case in a similar manner to that outlined by the Chief Judge in Loveridge*.* The caveats are really matters of the language and analogies used in some of the cases to which her Honour referred. First, the comparison made (in Hayter and in other cases) to “committal proceedings” is of limited utility. The power that used to be entrusted to the Local Court to discharge an accused person at the committal stage was based on two considerations. The first was when the evidence failed to establish a prima facie case (in the true sense of that expression). The second was based on an evaluation of whether a jury was unlikely to convict. The second was a truly predictive exercise which is contrary to the authorities concerning the high risk offender legislation. The statutory language concerning the committal and discharge powers in the Local Court – which developed over time and involved two distinct stages – was very different. Secondly, as her Honour’s decision in Loveridge itself demonstrates, describing the test as a “low one” is obviously no substitute for the proper application of the statutory language and could prove to be a distraction. Nor can that description diminish this Court’s responsibility to determine whether to make an interim order “bearing in mind the elevated standard of proof” that applies to the making of a final order: Tillman at [98]. The power of the Court to dismiss the application at a preliminary hearing is not restricted to cases that the Court labels or considers to be “hopeless”; rather, it is a matter of applying the statutory language while assuming the facts contained in the documents tendered in support of the application will be proved. [21]
I accept the State’s submission that a judge deciding whether to make an interim extension order is not undertaking the same task as a judge presiding over the final hearing. However, the authorities establish that there must be some engagement with the evidence and the “elevated standard of proof” that applies at the final hearing. In a “difficult case” like the present – where the defendant has been subject to the strictures of being a forensic patient for such a long time, where their behaviour and risk factors have improved, and where strong and legitimate arguments are made in opposition to the making of an interim order – there must be substantial engagement both with the evidence and with the statutory test. There are many cases that demonstrate this, but by way of example, see the recent judgment of Boulten J in *Attorney General for New South Wales v MM (a pseudonym) (*bht Ramjan) (Preliminary) [2026] NSWSC 1245: see also, for further examples, NSW v Loveridge (N Adams CJ at CL), State of New South Wales v Sleeman (Preliminary) [2025] NSWSC 957 (Sweeney J) and The State of New South Wales v Reginald Collingwood (a pseudonym) [2021] NSWSC 1365.
I proceed on the basis that Dr Dayalan’s opinion will be proved on the final hearing but also accept Mr Brock’s submission that it is one of many parts of the evidence that must be evaluated as a whole before reaching the conclusion under ss 126(5) and 130(b). This accords with what the Court of Appeal said in AG v Haines at [84].
I have had regard to Dr Dayalan’s opinion at [130]-[131] of his report:
“As a forensic patient, Ms Perry will have ongoing input from clinicians with expertise in managing individuals posing risk of harm to others. Forensic patient status allows for more rigorous monitoring of her risk and prompt management of any escalation in the risk of causing serious harm to others. In my opinion she poses a risk of causing serious harm to others if she is not a forensic patient especially in the initial phase of transitioning into the community.
Ms Perry has had extensive input from forensic mental health clinicians over the years and it is unlikely the clinical risk factors will reduce to a substantial extent in the near future. Risk management variables are influenced by the level of external support and competence of professionals involved in supporting Ms Perry in the future.”
The longer-term history of violence and aggressive behaviour, and the defendant’s aggressive conduct more recently, support Dr Dayalan’s conclusion that she remains at risk of being aggressive and violent. Similarly, she has had some slip ups in her attempts to remain drug free.
However, there is risk of aggressive and violent conduct whether Ms Perry is subject to ongoing status as a forensic patient or not. A lot of material suggests Ms Perry’s conduct is directed towards those administering the strictures of her current status. Her conduct also suggests that she is demoralised (my word based on many of the records tendered at preliminary hearing) by her continued status as a forensic patient and has lashed out at people around her as a result.
Further, she has self-reported her failures to remain drug free. The incidents of violence and aggression have been far less frequent, and less serious, in recent times particularly as she has been given the opportunity to live more independently and outside the confines of a secure mental health facility. Her conduct has not been perfect, but it has been extremely encouraging.
Dr Dayalan’s opinions as to the benefit of the overarching supervision of the Tribunal are similar to those reached by Dr Farrar and Dr Smith when the matter was before Dhanji J. [22] Each of those doctors provided an opinion to the effect that the risk factors, and Ms Perry’s violence and aggression, were better managed if she remained a forensic patient and that less restrictive means of management would be less effective. However, I accept Mr Brock’s submission that those reports must be considered against the fact that they were prepared at a time when the defendant remained confined involuntarily at the Forensic Hospital. Any opinion at that time was offered in something of a vacuum in terms of the kinds of supports now available and the realistic, not hypothetical, availability of “less restrictive means” to manage Ms Perry’s behaviour and the risk that she poses.
Those reports were prepared in September and October of 2024. Since that time there has been one reported incident of actual violence (the attempt to strike a nurse on 8 August 2025 when the nurse stood back to avoid the blow) and a relatively confined number of threats of violence and aggressive behaviour detailed above at [26].
This is not to engage in the kind of “weighing” exercise prohibited by the authorities: see, for example, T**illman at [98]. Nor is it to attempt to predict what the Court would or might do with such material at the final hearing. Rather, it is to make a reasoned evaluation of the material for the purpose of discharging the Court’s function at the preliminary hearing and to decide whether the lower threshold for an interim order (and orders for reports) pursuant to ss 126(5) and 130(b) is satisfied. If the Court was required to act based on opinions stated in one or more of the risk assessment and experts’ reports, there would be no utility in tendering the other volumes of material received at the preliminary hearing.
“A combination of Community Treatment Order, guardianship order and NDIS funded support services utilising restrictive practices could assist with managing Ms Perry’s risk of causing serious harm to others but this is only likely to succeed if there is effective communication between various agencies and there is an oversight of their coordinated approach. Given Ms Perry’s complex presentation, there is a high risk that this multiagency approach would get easily fractured unless the MHRT maintains oversight in the early stages of transition into the community.”
The State properly and fairly accepted that this opinion was predicated on an assumption that the NDIS providers, Public Guardian and those administering the CTO would not provide a co-ordinated approach and that this was “somewhat speculative”. [23] Even so, I accept Ms Palaniappan’s submission that it is an opinion that must have some basis in Dr Dayalan’s expertise in the field and his experience in dealing both with forensic patients and with those who are subject to a CTO, guardianship order and a different regime of mental health treatment and support.
There are risks associated with allowing Ms Perry’s status as a forensic patient to lapse, which would be the practical and almost immediate effect of dismissing the summons. However, that conclusion does not relieve me of the responsibility to address the question posed by s 126(6):
If, following the preliminary hearing, the Supreme Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must dismiss the application.
Even at the preliminary or interim stage, the onus is on the State. The Court must consider the “less restrictive means” by which it is proposed the defendant will be managed if she is not a forensic patient, albeit it must do so within the confines of the lower threshold for the making of an interim order. That is, the question is not whether the order should be made or that some hypothetical future judge would make the order on a final hearing. The question is whether the Court would be justified in making the order, assuming the matters alleged in the supporting material are established.
In this case, by contrast to the situation that presented in AG v Haines, the less restrictive means are not “hypothetical possibilities”. Rather the “reality” is that there is a management plan in place with oversight by the Public Guardian and co-ordinated support for independent accommodation and treatment backed by a substantial amount of NDIS funding. There is nothing hypothetical about the application to Ms Perry of the provisions of Part 3 of the Mental Health Act (“Involuntary Treatment in the Community”). Dr Dayalan proceeded on the assumption that she will be subject to a CTO and the breach provisions in s 58 can be enforced by police who are given the power of arrest under s 59. It was submitted on behalf of the State that “practically speaking, there is not a lot of difference” because Ms Perry is currently permitted seven nights leave in SIL. [24]
Ms Perry has not committed any serious offence of violence since 1 April 2014, a period of twelve and a half years. However, there is little doubt that there is a risk that she will act violently and aggressively particularly if she relapses into drug use, fails to take her antipsychotic medication or does not comply with the conditions placed on her either under a CTO or by virtue of her status as a forensic patient. She continues to suffer from a serious psychiatric condition and her symptoms remain significant if less frequent. She has a cognitive impairment and is quick to anger.
Ms Perry clearly needs intensive support, something that is ensured given the amount of NDIS funding available, the involvement of the Public Guardian and the inevitably strict conditions of any CTO when (or if) her status as a forensic patient ceases.
Ms Perry’s most serious act of violence in recent times was an unsuccessful attempt to strike a nurse and that incident happened more than a year ago. The defendant has generally responded well to living independently and outside of the environment of the Forensic Hospital. She remains a difficult patient to manage and resents the length of time during which she has been the subject of extension orders under the Act. Even so, more recently her response to treatment and supervision has been much better. Her self-reporting and candour when she tried to obtain drugs, or has used drugs, is a promising sign that she has some insight into her difficulties, risk factors and responsibilities.
I make the following orders:
The summons is dismissed pursuant to s 126(6) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
Order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
The parties are to notify my Associate within seven days as to whether there is to be any application for, or agreed order as to, costs.
**********
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 121(2).
Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters).
Tcpt (21.9.26), p 48.
Tcpt (21.9.26), pp 48-49.
Report of Dr Dayalan dated 27 March 2026 at [37].
Ibid at [40].
Ibid at [58].
Ibid at [67]
Ex A, Tab 1, p 1.
Ex HG-1 was exhibited to the affidavit of a solicitor employed by the Crown Solicitor’s Office and was marked Ex A at the preliminary hearing.
Tcpt (21.9.26), p 30.
Tcpt (21.9.26), p 32.
Tcpt (21.9.26), p 44.
Ex A, Tab 11, pp 201-202.
Ex B (HG-2), Tab 15, pp 62-217.
Ibid, for example at pp 110, 120, 128.
Ex B, Tabs 16-17, pp 278-232.
Ex B, Tab 14, pp 58-61.
Ex B, Tab 12, p 54.
Tcpt (21.9.26), pp 6 and 46.
Contra, Tcpt (21.9.26), p 46(35-45).
Ex A, Tabs 4-5 (pp 68-98) and 6-7 (pp 99-134).
Tcpt (21.9.26), pp 5-6.
Tcpt (21.9.26), p 9.
Attorney General for New South Wales
Perry (bht Limbury) (Preliminary)
The similar language in these three statutes, along with their comparable protective purposes and the capacity of the orders to infringe on the liberty of individuals subject to the orders, means that the authorities concerning the construction of the HRO Act and THRO Act are important in considering the approach to be taken to similarly worded provisions in the Act.
The second appellate decision discussed in argument has its own difficulties because the decision, which is otherwise on point and binding, was overturned in the High Court: see Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) (2025) 118 NSWLR 450; [2025] NSWCA 248 (AG v Haines) and Dale Haines by his litigation guardian Barbara Ramjan v Attorney General of NSW [2026] HCA 34. The High Court decided Haines on the papers and on a specific point which was conceded by the Attorney General. The Court was not critical of (and did not consider) aspects of the decision relevant to this case. Its status as a binding precedent is complicated. In their textbook Interpretation, Herzfeld and Prince say at [33.620]:
22 March 2023**:** Attempted to assault an elderly patient.
8 June 2023**:** Left a voice message that she intended to kill somebody.
17 July 2023 : Punched an elderly co-patient in response to being assaulted by that patient.
Since July 2023**:** Involved in incidents of verbal aggression and aggression towards objects.
August 2023-January 2024: There are records of four instances of aggression.
August, September and November 2024: Seven recorded incidents of aggression.
Since January 2024: Six incidents of aggression including verbal aggression, slamming doors, hitting walls and throwing objects.
October 2024: Punched a wall in her bedroom after hallucinating.
October-December 2025: Was verbally aggressive towards support staff at least 8 times over 2 weeks including threats of violence and rape.
8 August 2025: Attempted to strike a female nurse in the face.
30 September 2025: Threw her cup of coffee at the wall.
8 December 2025: Snatched money from a social worker’s hand and called her a “fat slut”.
11 December 2025: Verbally abused staff at the club.
6 January 2026: Yelled at a social worker and took her purse.
11 January 2026: Verbally abused staff believing that her money was stolen.
12 January 2026: Was threatening and aggressive due to no sleep requiring a second staff member to be put on.
Ms Perry’s mother was diagnosed with schizophrenia and Ms Perry was exposed to violence at her mother’s hands from a young age. The defendant ran away from home at the age of five “in the context of parental neglect, physical and sexual abuse” and was first diagnosed with schizophrenia in her mid-twenties. [5] She had two relatively long-term admissions to psychiatric units in 2013. Her mood was labile, she was disordered in her thought processes, and she reported auditory hallucinations. Co-existing with these symptoms was a history of polysubstance use including cannabis, cocaine, amphetamines and heroin. She had used alcohol from the age of ten.
She appeared to be treatment resistant. Her condition did not improve with various antipsychotic medications. She remained “grossly disorganised in her behaviour”, expressed multiple delusions and exhibited many behaviours which were difficult to manage such as “assaulting staff, screaming and yelling, pulling large amounts of hair out … eating soap and faecal matter and spitting”. [6] There were issues with personal hygiene, urinary incontinence and incidents of self-harm such as cutting and burning herself. She remained psychotic and aggressive throughout 2015 and was transferred between the Long Bay Hospital and Mulawa Screening Unit at Silverwater. At the Long Bay Hospital there was a trial of clozapine, a drug used for people with treatment resistant schizophrenia, but Ms Perry experienced episodes of unconsciousness due to a heart condition.
Despite “intensive treatment” between 2016 and 2021 – including “electroconvulsive therapy” which made her condition worse – there was little improvement. Ms Perry continued to experience psychotic symptoms and engage in unpredictable acts of aggression. In January 2021, she was “not deemed suitable for transfer to a less secure facility”.
Between August 2021 and February 2022 there was a period of “relative stability” with no incidents of physical aggression. Options were explored for progression to the community and supported independent living (“SIL”). However, in October 2022 she was again reviewed by the “Bunya team” which recommended “ongoing containment in a high secure environment” having noted that Ms Perry threw a telephone at a nurse and believed that staff were whispering about her. There was then an increase in assaults against peers and verbal threats throughout 2023, although these were not always unprovoked. For example, Dr Dayalan recorded at [56]:
In January 2026, WeCare noted ongoing psychotic symptoms and that Ms Perry remained agitated and distressed. Participants in a “stakeholder meeting” agreed “WeCare” could not manage the SIL placement due to concerns about their failures to report concerning behaviour. The service provider was changed to “Positive Care & Supports”. (A social worker later raised concerns about previous service providers – presumably a reference to WeCare.)
A report submitted for the MHRT on 6 March 2026 said that Ms Perry had “transitioned well to the SIL accommodation”. She had significantly improved in controlling her agitation, but the report said she “would still require supervision and support in an inpatient setting”.
An agreed statement of facts tendered at the preliminary hearing (Ex C) included further details of recent developments (I will omit reference to the source material):
Between October 2025 and December 2025 Ms Perry was living in SIL at Farley being managed by WeCare. She followed a graduated plan to transition from one to six nights per week of leave. By December she was accessing overnight leave for six to seven nights per week.
The placement with WeCare ended in January 2026 “through no fault of the defendant”. She was re-admitted to the Budyari Gumada Unit while alternative service providers and SIL accommodation were explored. Because of issues with the level of support offered by WeCare the overnight leave ceased.
In May 2026 there was a new NDIS provider (Resolve Care Services) and SIL in Cranebrook. She “receives 2:1 24 hour support”.
On 17 July 2026 the defendant disclosed that “she impulsively smoked cannabis” that was provided by family members. She became paranoid and experienced auditory hallucinations for about a day. A week or so later she disclosed that she sought methamphetamine from a family member but they refused to provide it to her.
On 2 August 2026 she was observed screaming in her room and saying that she wanted weed to smoke. The support team are exploring avenues to address this.
In late August 2026, during a period of leave, Ms Perry sourced and used “ice” (methamphetamine) and the incident was reported as a breach but the MHRT determined to take no action. An email from the Forensic Leader of the MHRT said there was no “evident deterioration in [her] mental state” but that such drug use could jeopardise her current living arrangements.
As at the time of the hearing (September 2026) Ms Perry was living at the SIL accommodation in Cranebrook seven nights per week on overnight leave.
I accept the general thrust of Mr Brock’s submissions that without this engagement the Court cannot reach the conclusion that a final order would be justified. In Tillman the Court made it clear that the analysis must be undertaken with the “elevated standard of proof” in mind. Again, in AG v Haines*,* the Court of Appeal acknowledged that the primary judge is not required to act on an expert’s opinion where there is conflicting evidence. Ultimately, the decision is left with the Supreme Court and not with a well-qualified expert. In many, perhaps most, cases, the supporting material “if proved” will readily establish that a final order would be justified. In such cases, the reasons for the Court on the preliminary hearing may not need to be extensive: see the comments of Emmett J in AG v AB at [47]-[48]. Clearly this is not such a case.
I have considered Dr Dayalan’s opinions and descriptions and the State’s submissions concerning the prompt response of the Tribunal on those few occasions when Ms Perry has slipped up since she was granted leave to reside at independent but supported accommodation. Similarly, I have considered Dr Dayalan’s opinion at [136] of the report:
I have considered both the probability that Ms Perry will act violently or aggressively and the potential that such violence or aggression will result in serious harm and have adopted the approach taken by RA Hulme J in Attorney General of New South Wales v Kereopa (No 2) as to what that expression portends. I have applied what is sometimes called the “calculus of risk” approach that arises when the ultimate question is whether risk involved is considered to be “unacceptable”. Both the probability of the risk and the magnitude of the damage that may be caused if the risk manifests are relevant to the question of whether there is an unacceptable risk. In doing this, I have acted within the confines of the statutory language that applies on a preliminary hearing.
In considering these questions I have considered the list of factors in s 127(2), some of which, like s 127(2)(b), have no application at the preliminary stage because such reports are not available. It is not necessary to set out those factors as some kind of checklist. Relevant matters are set out in my overview of the evidence tendered by the State and in my analysis of that evidence and the helpful submissions of counsel for both sides.
Based on the evidence tendered at the preliminary hearing, and for the foregoing reasons, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a further extension order.
Accordingly, pursuant to s 126(6) of the Act, the application must be dismissed.
I will make an order restricting access to the court file. If the parties reach an agreed position on costs, or if there is to be a contested application for costs, my Associate should be notified within seven days.
[2026] NSWSC 1245
(2025) 118 NSWLR 450