Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson

Background to the Application

1. The material tendered by the plaintiff in support of the application contains various accounts gleaned from reports made by psychologists, psychiatrists and counsellors over the years as to the defendant's background. The picture that emerges, briefly stated, is as follows.
2. The defendant was born in Afghanistan in 1991, the third youngest of nine children. He and his family were Shi'a members of the Hazara ethnic group and were exposed to armed conflict in Afghanistan. His father and eldest brother were captured by a militia and the rest of his family fled to Pakistan as refugees. His father escaped and re-joined the family in Pakistan. In 1997 they travelled to Australia as refugees, eventually being joined by his eldest brother.
3. Family recollections of his birth suggest that the defendant suffered neonatal asphyxia. He may have suffered other bouts of oxygen deprivation when he and his family took refuge in bomb shelters and were covered in dirt. He experienced seizures between the ages of six months and seven years. His family also reports that the defendant suffered a head injury when aged seven.
4. The defendant's intellectual functioning was first assessed when he was ten years old. His overall cognitive abilities fell in the "borderline mildly intellectually disabled range" and his adaptive behaviour functioning was in the "mildly intellectually disabled range". Significant behavioural issues emerged in his high school years and brought him to the attention of Juvenile Justice. When aged 14, the diagnosis of a mild intellectual disability was confirmed, together with a possible conduct disorder. The following year, he was diagnosed with "frontal lobe syndrome", causing executive dysfunction. Other diagnoses at around that time included an underlying anxiety disorder, likely due to his exposure to trauma in the Afghani armed conflict, attention-deficit/hyperactivity disorder ("ADHD") and depression. By age 16, an additional concern was polysubstance abuse. In 2012, when he was aged 21, he was diagnosed as having a mild to moderate intellectual disability.
5. The defendant was first charged with a criminal offence in 2005, aged 14, and was first detained in a Juvenile Justice facility when he was aged 15. Until his imprisonment in 2012, many of his offences were dismissed in the Local Court by orders made pursuant to s 32 of the Act consequent to his intellectual disability. Prior to 2012, his offences were numerous and cover a diverse range, from the relatively minor to dangerous driving, aggravated robbery and aggravated break and enter in company. Whilst in juvenile detention, he was dealt with for 29 breaches of discipline, including fighting, assaults, stealing and failing drug tests.
6. In 2012, when aged 20, he was driving a car in which the victim, who he had known for seven or eight years, was a passenger. They became involved in a police pursuit which the defendant was able to evade, but the victim was arrested and corroborated the defendant's identity to police. The defendant was arrested two days later and became aware of the information provided by the victim. He was granted bail and on 10 April 2012, in the company of three other men, confronted the victim and shot him as he tried to run away. This resulted in serious wounding; the victim's spleen had to be removed. Police arrested the defendant and charged him with causing grievous bodily harm with intent to cause grievous bodily harm, pursuant to s 33(1)(b) of the Crimes Act 1900 (NSW) ("the index offence"). It was an alternative charge to one of attempted murder. When interviewed, the defendant denied that he had shot the victim.
7. On 17 April 2013 the defendant was found to be unfit to be tried, which had a consequence of rendering him a forensic patient (ss 14 and 42 of the Act), thereby bringing him under the jurisdiction of the Mental Health Review Tribunal ("the Tribunal"). The Tribunal determined he was unlikely to become fit within twelve months. Following a special hearing, Judge Bennett SC acquitted the defendant on the first count and returned a qualified finding of guilt on the alternative count. On 28 March 2014, his Honour fixed a limiting term of seven years, back-dated to when the defendant was arrested and detained. The finding continued his status as a forensic patient until the expiration of the limiting term: ss 24 and 42 of the Act. In his reasons for the verdict, his Honour said it was reasonably possible that the defendant "simply responded to the urgings of these other young men to engage upon such a serious crime."
8. The defendant has been periodically reviewed by the Tribunal and continues to be unfit to be tried. His progress in detention has been concerning. Between November 2012 and February 2017, he was accommodated in a section of Long Bay prison that provides specialist services for detainees with an intellectual disability, known as the Additional Support Unit. In late 2016, the Tribunal approved him for escorted day leave as a part of a period of transition to an intensive residential service facility at Rossmore. However, his security classification at the time did not permit escorted day leave.
9. In February 2017 he was transferred to Junee Correctional Centre and his security classification upgraded, following misconduct charges involving his participation in a group assault on a prisoner after discovering that the victim was a sex offender. As well, his proposed placement at the Rossmore facility was no longer available. A recurring feature in the histories taken by various health care professionals over the years is that the defendant may be heavily influenced, if not led, by others, in his criminal conduct, which would be consistent with the diagnosis of a mild degree of intellectual disability. By November 2017, he was detained at the South Coast Correctional Centre, following him being implicated in introducing contraband into a correctional centre. His security classification was further upgraded. He requested a further transfer following threats made by another inmate, and was transferred to Goulburn Correctional Centre.
10. Over his almost seven years of detention in the prison system, the defendant has been dealt with for 32 breaches, the most recent being possession of two syringes on 1 August 2018; his explanation is that he was told by others to store them, and was afraid to resist. His last positive urinalysis was in December 2017.

The legislative provisions

1. Clause 2 of the Schedule is in the following terms: "(1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme 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 he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others."
2. The purpose of a preliminary hearing is to determine whether the documentation supporting the application would, if proved, justify the making of an extension order. If so, the Court must make orders appointing two psychiatrists, psychologists or medical practitioners or any combination thereof, to separately examine the forensic patient and furnish reports to the Court: cl 6(5). If not, the Court must dismiss the application: cl 6(6).
3. The Court may make an interim extension order if it appears to the Court (a) that the limiting term or existing extension order to which the forensic patient is subject 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 extension order: cl 10. An interim extension order may be made for a period up to three months: cl 11(1).
4. Accordingly, although the preliminary hearing is partly concerned with the need or otherwise for interim orders, cl 10(b) obliges the Court to apply the test for the making of final orders in order to assess the sufficiency of the supporting documentation, if proved, to base an extension order. In determining whether to make an extension order, the Court is obliged to have regard to a list of non-exhaustive factors set out at cl 7(2).
5. The key provisions of the Schedule are sufficiently similar to provisions in the Crimes (High Risk Offenders) Act 2006 (NSW) for judicial consideration of some aspects of that legislation to be applicable. The meaning of the term "to a high degree of probability that the offender poses an unacceptable risk" was considered in Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. Beazley P considered that the proper approach is that the words have "their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act" (at [58]). Section 54A of the Act is within Part 5. Section 40 sets out six objects of Part 5. Two are directed to the safety of others and the other four concern the facilitation of care, treatment and control of "persons subject to criminal proceedings who are suffering from a mental illness or mental condition" whilst in correctional centres and in the community.
6. "A high degree of probability" indicates a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21]. The Court's function at a preliminary hearing is to consider whether the supporting documentation, if proved, would justify the making of an extension order. It is not to weigh the material or predict the ultimate result: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98].
7. A significant departure from the legislative scheme in the Crimes (High Risk Offenders) Act is the degree of seriousness of the behaviour that is sought to be prevented, in order to warrant the Court's supervisory or custodial intervention. In the Crimes (High Risk Offenders) Act, it must be "another serious offence" (ss 5B(d) and 5C(d)). The term "serious offence" is defined to mean specific serious sexual offences and crimes of violence: ss 4, 5(1) and 5A(1). In the Mental Health (Forensic Provisions) Act, however, it is "serious harm to others", which is undefined. The meaning of "serious harm" in the context of cl 2(1)(a) has been considered in earlier applications for an extension order, by Davies J in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 and R A Hulme J in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928. Davies J considered that, having regard to the use of "serious harm" in the definition of "mentally ill person" at s 14 of the Mental Health Act 2007 (NSW), "there is no reason in principle why "serious harm" in the [Mental Health (Forensic Provisions) Act] would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that" (at [19]). In Attorney General of New South Wales v Kereopa (No 2), RA Hulme J said (at [16]): "The 'risk of causing serious harm to others' was considered by Davies J in his judgment on the preliminary hearing of the present matter. I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of 'grievous bodily harm' (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not 'serious harm'."

The Parties' submissions

1. Counsel for the plaintiff noted that there are two limbs to the statutory test for granting an extension order, aligning with each sub-clause of clause 2, and conceded it has the onus of proof in respect of both limbs. She submitted there are three indicators of the risk that the defendant posed of causing serious harm; his past conduct, the likelihood of the risk eventuating and the gravity of his past behaviour.
2. Counsel pointed to evidence of past verbal aggression, including threats of violence as well as the defendant's history of past offending, matters dismissed pursuant to s 32 of the Act and the index offence. Additionally, Counsel referred to the defendant's multiple convictions for assaulting his former girlfriend and breaches of apprehended violence orders. Counsel further submitted that his multiple driving and property offences have caused financial harm.
3. As to the likelihood of the risk eventuating, the plaintiff relied upon a report by Ms Caroline Hare, forensic psychologist, dated 23 November 2018, which considers whether the defendant meets the diagnostic criteria of any psychiatric or psychological condition, the impact of any such condition on his risk of re-offending, whether he poses a risk to others if he ceases to be a forensic patient and, if so, recommendations for the management of that risk and his need for on-gong management. Her conclusion is that the defendant "presents high risk of engaging in reduced-seriousness violence (eg verbal aggression that involves threats of violence), and moderate risk of engaging in actual physical violence".
4. It appears from the material that both the defendant and the Tribunal are working towards the defendant being released to an intensive residential service facility. Ms Hare was in agreement with this course, if his release is subject to the supervision of the Tribunal with a two-year extension to his status as a forensic patient. Without that status, the Tribunal would have no jurisdiction over the defendant and could not require him to stay there. Ms Hare proposed a regime of intensive preparation for the transition to the residential facility and then intensive supervision.
5. Counsel for the plaintiff further submitted that the gravity of the defendant's past behaviour is demonstrated by his access to a firearm with which he shot the victim.
6. In relation to the second limb, that is, whether the risk can be adequately managed by less restrictive means, the plaintiff relies on the risk assessment of Ms Hare coupled with the fact that, if this Court does not make an extension order, his liberty after 11 April 2019 will be unconditional. He could choose to live where he wishes and with no management or constraints over his association or movements. The plaintiff submits that this scenario demonstrates the need for an extension order.
7. The defendant adopted the plaintiff's submissions as to the relevant law. In relation to the matters to be taken into account pursuant to cl 7(2), in particular the forensic patient's level of compliance with obligations while a forensic patient, the defendant noted that some of the breaches whilst in detention were minor in nature, none warranted external charges and some were open to exculpatory explanations.
8. Towards the end of the hearing, the defendant addressed me directly. He explained that since he has been detained, he has completed many courses and he has "changed my ways … I'm not the person I used to be. I'm more mature now". These comments coincide with observations by Ms Hare that the defendant's behaviour has matured and improved.

Consideration

1. In a preliminary hearing, the Court is not apprised of all the material relevant to a final determination. The material it does have, tendered by the Attorney General, is untested. For these reasons, my determination pursuant to cl 2(1) is, of necessity, qualified.
2. As noted earlier, the defendant neither consents to nor opposes prayer 2, namely, that the defendant be subject to an interim extension order. Having regard to the relevant factors in cl 7(2), I am satisfied that the material, if proved, would justify the making of an extension order, namely, that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he or she ceases to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means. The risk of the defendant causing physical harm to others, by itself, would satisfy that test to the requisite standard, if the material was proved.

Orders

1. Accordingly, I make the following orders: Appointment of experts 1. Pursuant to cl 6(5) of Schedule 1 of the Mental Health Forensic Provisions) Act 1990 (NSW) ("the Act"): 1. The Court orders the appointment of two qualified psychiatrists, as agreed between the parties, to conduct separate examinations of the defendant and to furnish to the Court the results of those examinations by 30 April 2019; and 2. the Court directs the defendant to attend those examinations. Interim order 1. Pursuant to cll 10 and 11 of the Act, an interim extension order is made for a period of three months commencing on 11 April 2019. Final hearing timetable 1. The plaintiff is to file and serve any further evidence on which he intends to rely at the final hearing by 5pm on 26 April 2019. 2. The defendant is to file and serve any further evidence on which he intends to rely at the final hearing by 5pm on 7 May 2019. 3. The plaintiff is to file and serve any written submissions on which he intends to rely at the final hearing by 5pm on 14 May 2019. 4. The defendant is to file and serve any written submissions on which he intends to rely at the final hearing by 21 May 2019. 5. The matter is listed for final hearing at 10am on 24 May 2019 with an estimate of one day. 6. The defendant is to advise the plaintiff which experts and/or witnesses are required to attend Court to give evidence at the final hearing by no later than two weeks before the final hearing. 7. The plaintiff is to deliver an agreed folder of working documents to the chambers of the judge allocated to the final hearing by no later than two working days before the final hearing.

Amendments 21 November 2019 - Minor typographical errors corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2019