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

Relevant statutory provisions

1. The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHFP Act.
2. A "forensic patient" is relevantly defined in s 42 of that Act as follows: "For the purposes of this Act, the following persons are forensic patients: (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or … (a1) a person in respect of whom an extension order or interim extension order is in force, ..."
3. As a result of Bennett DCJ's orders, the defendant became a person who was detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under s 24 of the MHFP Act. Consequently, he fell within the definition of a forensic patient in s 42(a)(i) of that Act.
4. As noted above, as a result of the interim extension order granted by Ierace J, the defendant's current status as a forensic patient will expire at midnight on 10 July 2019.
5. The objects of Pt 5 are set out in s 40 in the following terms: "40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims."
6. Section 54A, which is found in Pt 5 of the MHFP Act, provides that "[a] person's status as a forensic patient may be extended in accordance with Schedule 1." This is what the Attorney General seeks in this matter.
7. The following clauses of Sch 1 of the MHFP Act are relevant for present purposes: "1 Extension orders for forensic patients (1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient. (2) An order made under this clause is an extension order. 2 Forensic patients in respect of whom extension orders may be made (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. … 7 Determination of application for extension order (1) The Supreme Court may determine an application under this Part for an extension order: (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order. 8 Term of extension order (1) An extension order: (a) commences when it is made, or when the limiting term or existing extension order to which the forensic patient is subject expires, whichever is the later, and (b) expires at the end of the period (not exceeding 5 years from the day on which it commences) that is specified in the order. (2) Nothing in this clause prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient. …"
8. Even if an extension order is made, it is not final in the sense that it can be revoked or varied at any time, under cl 12 of Sch 1 of the MHFP Act. That clause provides: "12 Extension order or interim extension order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extension order or interim extension order: (a) on the application of a Minister administering this Act or the forensic patient, or (b) on the recommendation of the Tribunal under section 47 (2A). (2) The period of an order must not be varied so that the total period as varied is greater than that otherwise permitted under this Part. (3) Without limiting the grounds for revoking an extension order or interim extension order, the Supreme Court may revoke an extension order or interim extension order if satisfied that circumstances have changed sufficiently to render the order unnecessary."

Relevant Principles

1. There was no substantial dispute between the parties as to the relevant principles that guide the application of those statutory provisions.
2. The phrase "high degree of probability", in cl 2(1), indicates that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of "more probable than not", but does not have to be proved to the criminal standard of "beyond reasonable doubt": Cornwall v. Attorney General for New South Wales [2007] NSWCA 374 at [21]; Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11].
3. The "unacceptable risk" of causing serious harm to others if the person ceases being a forensic patient, referred to in cl 2(1)(a), is to be given its ordinary or everyday meaning, and the right of the person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an "unacceptable risk": Lynn v State of New South Wales (2016) 91 NSWLR 636 at [44], [127] and [148]; [2016] NSWCA 57; Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [14]; Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [15].
4. The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures: Lynn at [126].
5. The evaluation of whether the risk is "unacceptable" is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection: Lynn at [61]; see also McGuire (No.2) at [55]-[59]. Unacceptability depends on a range of factors which must be balanced against one another. There may be circumstances where a person may be held to pose an unacceptable risk of causing serious harm to others even if the risk is low but the consequences, for example to a victim, are likely to be drastic: see the comments of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128] in relation to cognate expressions in the Crimes (High Risk Offenders) Act 2006 (NSW).
6. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (Kereopa No 2) at [16]. Whether such harm is "serious" within the meaning of cl 2(1) will depend, in my view, on whether it is such harm as should attract consideration given the objects, scope and purpose of Pt 5 of the MHFP Act. In Kereopa No 2 at [16], R A Hulme J expressed the view that "serious harm" involves "something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law … [and] psychological harm must be something more than emotions such as fear or panic".
7. Clause 2(1)(b) of Sch 1 provides in effect that, even if satisfied to the requisite standard that there is an unacceptable risk of causing serious harm, the Court cannot make an extension order unless it is satisfied, to a high degree of probability, that this unacceptable risk "cannot be adequately managed by other less restrictive means".
8. Assessing whether the risk can be adequately managed by other less restrictive means involves determining, in respect of the alternatives available: 1. whether the risk of causing serious harm to others can be adequately managed by each alternative proposed; and 2. how restrictive each alternative is in comparison with the situation if an extension order were made. This is to be judged by reference to, among other things, the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96].
9. The phrase "adequately managed" can be taken to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having forensic patients being confined in some form of institutional care rather than taking their place in the community: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63].
10. Under cl 2(2) of Sch 1 of the MHFP Act, the 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.
11. Finally, under cl 7(2) of Sch 1, the Court must have regard to the matters listed in cl 7(2)(a) to (i), which have been set out above, when determining whether or not to make an extension order, in addition to any other relevant matters.
12. Accordingly, I shall consider first the defendant's background and offending and then deal with each of the matters in cl 7(2) and other relevant evidence.

Defendant's background

1. As there was no substantial dispute as to the defendant's background, and in the interests of consistency, it is appropriate to use the concise summary provided by Ierace J in Beryalay Preliminary at [5]-[7] as follows: "5. 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. 6. 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. 7. 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.
2. Against that background, the defendant's criminal history prior to the index offence, the index offence and subsequent conduct can be considered.

Criminal history prior to the index offence

1. The defendant has a significant criminal history, commencing in 2005 when he was about 14 years of age, which can be summarised as follows: Date Summary description of offence Outcome June 2005 1. Aggravated break and enter with intent and in company. Conditionally discharged under s 32 of the MHFP Act (s 32 discharge) 2. Goods in custody being stolen. 1. Possess housebreaking implements. September 2005 2. Break, enter and steal value less than $15,000. s 32 discharge 3. Breach of bail. 1. Resist officer in execution of duty. April 2006 2. Behave in offensive manner in/near public place. s 32 discharge 3. Custody of knife in public place. April 2006 Break, enter and steal value less than $15,000. s 32 discharge 1. Drive conveyance taken without consent. 1. 12 month bond under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) (CCCP Act). July 2006 2. Drive vehicle recklessly/furiously. 2. s 32 discharge 3. Unlicensed driving. 3. s 32 discharge 1. Possess prohibited drug. July 2006 2. Goods suspected stolen. s 32 discharge 3. Unlicensed driving. January 2007 Aggravated robbery 12 month probation under s 33(1)(e) of the CCCP Act. March 2007 Goods suspected stolen. Rising of the Court under s 33(1)(g) of the CCCP Act. September 2007 Bring small quantity of drug into detention centre. 1 week control order under s 33(1)(g) of the CCCP. March 2008 1. Goods in custody. s 32 discharge 2. Deal with suspected proceeds of crime. May 2008 1. Self-administer prohibited drug. s 32 discharge 2. Unlicensed driving. 1. Use false instrument with intent. 2. Goods suspected stolen. June 2008 3. Unlicensed driving. s 32 discharge 4. Driver state false name/address. 5. Display unauthorised number plate x 2. 1. Steal from the person. August 2008 2. Possess housebreaking implements. s 32 discharge 3. Be carried in conveyance taken without consent. 4. Break and enter with intent. October 2008 1. Goods in personal custody. s 32 discharge 2. Detain person in company with intent to obtain advantage. 1. Assault officer in execution of duty. February 2009 2. Possess prohibited drug. s 32 discharge 3. Go onto railway lines. February 2010 Possess prohibited drug. $200 fine. March 2010 Common assault (the victim was his domestic partner). 12-month s 6 bond - called up on 17 November 2011 and 7 June 2012 resulting in a 2-year s 9 bond. 1. Assault officer in execution of duty. May 2010 2. Use offensive language in public place. s 32 discharge 3. Refuse to comply with direction under Pt 14. September 2010 1. Assault occasioning actual bodily harm (DV) x 2. 1. and 2. 12-month s 9 bond - called up on 17 November 2011 and 7 June 2012 resulting in a 2-year s 9 bond. 2. Contravene prohibition in AVO (domestic) x 2. 1. Cultivate prohibited plant. November 2010 2. Possess prohibited plant. s 32 discharge 3. Goods in custody suspected stolen. 1. Negligent driving (not occasioning GBH). 1. $600 fine. April 2011 2. Unlicensed driving. 2. $300 fine. 3. Enter inclosed land x 2. 3. s 32 discharge August 2011 Contravene prohibition in AVO (domestic). Dismissed under s 10. 1. Use offensive language in public place. October 2011 2. Enter inclosed land. 1. and 2. Conviction with no penalty: s 10A. 3. Destroy or damage property. 3. and 4. 2-year s 9 bond. 4. Contravene prohibition in AVO (domestic). 1. Enter inclosed land. 2. Negligent driving (not occasioning GBH). February 2012 3. Drive vehicle recklessly/furiously. s 32 discharge 4. Drive while suspended. 5. Police pursuit, not stop, drive dangerously.

The index offence and subsequent conduct

1. On 10 April 2012, at Guildford, in New South Wales, the defendant was in the front passenger seat of a car with a number of companions. They attempted without success to have the victim, who was known to the defendant, get into the car. When the victim refused to do so, the defendant produced a 0.32 calibre pistol, put a round into the breech by operating the slide and then shot the victim as he turned to escape. The victim fled and collapsed some distance away. The bullet had entered the victim's left side. The resulting surgery involved removal of the victim's spleen, which had been damaged as a result of the bullet entering his body.
2. On 17 April 2013, in the District Court, Sides QC DCJ found the defendant unfit to be tried, under s 14 of the MHFP Act. Eventually, on 5 February 2014, a special hearing was conducted before Bennett DCJ sitting as a judge alone. On 24 February 2014, his Honour found that on the limited evidence available the accused committed the second offence charged on the indictment, namely that on 10 April 2012 at Guildford in the State of New South Wales the defendant did cause grievous bodily harm to the victim with intent to cause grievous bodily harm to him, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW).
3. On 28 March 2014, Bennett DCJ nominated, under s 23(1)(b) of the MHFP Act, a limiting term of seven years in respect of that offence, dating from 12 April 2012, and made an order under s 24 of that Act referring the defendant to the Mental Health Review Tribunal.
4. In his remarks on nominating the limiting term, his Honour referred to a neuropsychologist's diagnosis of extreme poor functioning and mild to moderate intellectual disability. The learned judge also said that, despite the suspicion that it might be some manipulation by the defendant, he decided the matter "extending to the [defendant] the benefit of the doubt that might exist in respect of [his] suspicion, and [he proceeded] to determine the limiting term upon the premise that [the defendant was] significantly impaired". In addition, his Honour said: "… In the light of what I have read in the [psychiatric and psychological] assessments provided, it does seem to me that there is little I can do to stop him from committing crime which seems to be ever increasing its seriousness. … The significant aspect of sentencing in this case is the need to protect the community from the [defendant] and behaviour such as he engaged upon on this occasion, and indeed from continuing misconduct such as is revealed in the antecedents to which I have referred. I accept the Crown's submission that his antecedents reflect ongoing and substantial problematic behaviour in the face of efforts by the Court to deal with the matters so as to assist him, even in cases where he had breached conditional liberty, extending it once again rather than impose punishment upon him. Moreover, he was living in a controlled environment at the time of the commission of this offence. His offending does not confine itself to the discharge of the weapon on this occasion; he beforehand had possession of the weapon and the ammunition with which to discharge it. He does not suffer punishment for those discreet offences, but they are part of the factual matrix upon which the determination of the outcome is made.…"
5. The defendant has also had a number of breaches of discipline while in custody, including failing prescribed drug tests, possessing prohibited goods assault and intimidation. The defendant submitted that some, at least, of these breaches were relatively minor and I am prepared to accept that this is so for present purposes, having regard to the nature of the sanctions imposed and the other information available.
6. The Mental Health Review Tribunal (MHRT) has conducted 15 reviews of the defendant since he has been in custody. For most of this time, he has been in a correctional centre. However, on 22 March 2019, the MHRT approved an application for the defendant to be conditionally released to live in an Intensive Residential Service (IRS) of the Community Justice Program ("CJP") in Berkshire Park. Dr Furst noted that he was scheduled to arrive at that supervised accommodation complex on 15 April 2019.
7. In the light of that background and history, it is now necessary to consider the matters listed in cl 7(2) of Sch 1 to the MHFP Act.

Safety of the community - cl 7(2)(a)

1. The "safety of the community" is to be understood in this context as including protecting the safety of members of the public generally as well as ensuring that serious harm is not caused to other individuals. This is inherent in s 40(a) and cl 2(1)(a) of Sch 1 of the MHFP Act.
2. The defendant's lengthy criminal history before the index offence contains only a limited number of offences involving violence. These include assaulting an officer in the execution of duty on a number of occasions, common assault where the victim was his domestic partner and assault occasioning actual bodily harm in a domestic violence context. The defendant has also contravened an apprehended violence order (domestic) on two occasions. In addition, there are a number of driving offences which have involved endangering or potentially endangering other road users. The driving offences and particularly the domestic violence offences are serious, but the index offence marks an escalation in the defendant's preparedness to engage in violent crime, involving as it did the use of a firearm to shoot the victim with intent to cause grievous bodily harm. The defendant has put the safety of the community and his partner at risk as well as causing serious harm to at least one individual with whom he had come into contact.
3. The defendant's intellectual disability may have played a part in his offending and in his lack of ability to understand the consequences of his actions. This, however, does not reduce, but increases, the risk posed by the defendant and the need to take effective measures to protect the community and individuals from serious harm. The safety of the community must also be considered in the light of the psychiatric and other expert evidence concerning the defendant, which is dealt with below.

Reports received from the persons appointed under cl 6(5) - cl 7(2)(b)

1. In accordance with the orders of Ierace J of 12 March 2019, the defendant was examined by two psychiatrists and they provided reports to the Court as follows: 1. the report of Dr Richard Furst, forensic psychiatrist, dated 28 April 2019, together with the supplementary email of 13 May 2019; 2. the report of Dr Kerri Eagle, forensic psychiatrist, dated 30 April 2019, together with the supplementary emails of 10 and 13 May 2019.

Report and evidence of Dr Furst

1. Dr Furst interviewed the defendant on 1 April 2019 via AVL from the Goulburn Correctional Centre. The doctor noted that the defendant was a particularly poor historian in relation to his developmental history and other relevant background concerning his medical and psychiatric issues. During oral evidence, Dr Furst remarked, in relation to the defendant's recurring responses of "I don't know" and "I can't remember" when Dr Furst was "fairly sure he did remember but he did not want to give an answer", that they were not so much malingering but were significant because they indicated that the defendant's reporting of matters was unreliable and the discrepancies between neurocognitive assessments, some being mild and some being moderate, were probably best accounted for by his effort or engagement in the assessments rather than fluctuations of brain function over the years. [1]
2. Dr Furst reviewed and reported on a considerable amount of documentation including Juvenile Justice reports, probation and parole reports, neuropsychological reports, reports from Statewide Disability Services, Community Justice Project reports and documentation from the MHRT. It was noted that the risk assessment reports prepared by Mr Williams and Dr Wu of the Community Justice Project in 2016 indicated a history of problematic substance abuse when the defendant was last managed in the community, including alcohol, cannabis, amphetamines and illicit medications. His record of disciplinary breaches while in custody and other information indicated that this had continued subsequently.
3. Dr Furst opined that the defendant had the following mental disorders according to DSM - 5 criteria: 1. intellectual disability in the mild to moderate range; and 2. substance use disorder.
4. Dr Furst also noted impairment in the defendant's memory and frontal executive function, which is also referred to as frontal lobe syndrome/disorder. Frontal lobe disorder is a condition associated with deficits in cognitive (movement and speech), emotional and/or behavioural function associated with damage to the frontal cortex of the brain.
5. As to the defendant's risk of re-offending by causing serious harm to others, Dr Furst said: "[the defendant's] presentation suggests he has persisted in offending into his adolescence and adult years despite family support and intensive input from ADHC and CJP, including 24-hour supervision and an individual behaviour management plan targeting his problematic behaviour. Furthermore, his intellectual disability, in association with specific deficits in his frontal executive function, appears to have resulted in a pattern of negative influence to pro-criminal and drug abusing peers throughout his formative years, [the defendant's] cognitive impairment and impaired judgement making him particularly vulnerable in this respect. His pattern of substance abuse, which commenced some years prior to his 2012 offence, has continued in custody, including using Buprenorphine belonging to other inmates … And being found in possession of two syringes as recently as August 2018, obviously associated with drug use, and self-report of using Buprenorphine up to daily [non-prescribed]. The combination of cognitive impairment, frontal lobe syndrome/disorder and a substance abuse disorder places [the defendant] at significant risk of resuming his previous pattern of criminal offending and recidivism if left unsupervised … ."
6. In the report, Dr Furst observed that the defendant's intellectual disability put him "at a greater risk of aggression and criminal recidivism than those without such disorders." He also opined that: "if [the defendant] ceases to become a forensic patient, his participation in the proposed supervision and management of his risk factors through ADHD, CJP and the Berkshire Park IRS would become voluntary. He had difficulties complying with similar programs and see JP in the past and generally poor engagement with [a previous program], making it more likely than not [the defendant] would disengage from essential supervision and support services if participation was voluntary."
7. The report summarised the salient individual risk factors of the defendant as follows: "• [the defendant] has an extensive criminal history, including previous offences involving instrumental violence [aggravated robbery and the shooting of [Victim] on 10/04/12 at Guildford]; • He has re-offended in breach of previous supervision provisions/orders on a number of occasions; • He has previously re-offended despite residing in supported accommodation [was in Villawood CRC at the time of the 10/04/12 offence and the police pursuit/related driving offences in February 2012]; • He has an intellectual disability and associated cognitive impairment, including frontal-executive deficits; • He has a substance use disorder; • His level of insight into his personal risk factors remains poor; • His level of engagement with psychological services and CJP has been historically poor; • He has a history consistent with impulsivity, impaired judgment and the use of aggression to resolve problems; • He has been highly vulnerable to the influence of antisocial and pro-criminal peers; • He has no internalised value system to prevent him from taking advantage of others or breaking the law in the future; • He lacks to personal resilience skills, values and insight to prevent himselffrom continuing to offend in the event of relapsing into using drugs and/orthe influence of antisocial and pro-criminal peers and related offending ifleft unsupervised."
8. Dr Furst concluded that these factors tended to place the defendant "in a group of individuals considered medium-high risk of re-offending", especially without close supervision and a gradual and supported transition into the community. Using the Historical Clinical Risk Assessment 20 scale, Version 3 (HCR-20-3) to supplement that assessment, Dr Furst assessed the defendant as a moderate risk of causing serious physical harm to others. The doctor's overall conclusion was: "On consideration of all of the relevant risk factors identified above and previous risk assessments, coupled with the available tribunal reports, assessments and oral evidence, I am of the opinion [the defendant] falls in a group of individuals considered to be at moderate - high risk of causing serious physical harm to others."
9. In cross-examination, Dr Furst explained that this assessment was based on the parameters known at the relevant time, historical factors and risk management factors, on the basis that the defendant was residing in Berkshire Park IRS. The doctor went on to state the following: [2] "If he was not on an order that means he is free to do what he likes including leave, use drugs again and re‑offend at will if he chooses to do so. So the risk might actually escalate in that scenario to high risk. So from medium to high, to high."
10. In Dr Furst's opinion, the most significant scenarios in relation to the present risk posed by the defendant included, but were not limited to: absconding from his current placement at the Berkshire Park IRS; disengaging from therapy sessions; using drugs; and association with pro-criminal peers.
11. As to the management of the defendant's risk of harm to others in the future, Dr Furst endorsed the recommendations of the CJP in their report of 17 October 2018. He was also of the opinion that it was more likely than not that the defendant would not comply with risk management strategies or more detailed conditions of release provided by the MHRT "in the absence of a forensic order" and: "Therefore, I am of the opinion that his current status as a forensic patient is of high clinical utility and is necessary in order to manage the potential risks [the defendant] poses of re-offending and/or causing serious harm to others."
12. Dr Furst was of the opinion that the defendant does not have a major mental illness or a major mood disorder, is not a mentally ill person for the purposes of the Mental Health Act, and thus he was not eligible for a forensic community treatment order. Nor did Dr Furst accept that the provisions of the Guardianship Act 1987 (NSW) would be sufficient to meet the management requirements and modalities necessary to ensure that he could be safely managed in the community.
13. Although Dr Furst, in his report, suggested an extension of the defendant's status as a forensic patient for 2 to 5 years, he accepted in his subsequent email that a further period of three years would be an appropriate extension order in these circumstances.
14. Finally, Dr Furst opined: "In my opinion, the alternative scenario of [the defendant] ceasing to become a forensic patient would likely result in an unacceptable risk of disengagement from appropriate services and supervised care arrangements, using drugs again, associating with pro-criminal peers, re-offending and posing a significant risk of harm to others in the community."

Report and evidence of Dr Eagle

1. Dr Eagle's report, dated 30 April 2019, was prepared after she interviewed the defendant in person at Berkshire Park IRS on 17 April 2019. In addition, Dr Eagle reviewed essentially the same documentation as Dr Furst. Dr Eagle's diagnosis was as follows: 1. complex post-traumatic stress disorder arising out of his exposure to repeated early childhood trauma including emotional dysregulation, hypervigilance, relationship difficulties, dissociative phenomena and negative self/worldview; 2. intellectual development disorder mild to moderate in severity; and frontal lobe syndrome with the deficits impacting on the areas of short and long-term memory, planning, organising and insight; 3. attention deficit hyperactivity disorder (ADHD) in childhood, although it is difficult to separate symptoms of this disorder from the defendant's cognitive difficulties and emotional dysregulation, particularly in the context of substance intoxication; 4. severe substance use disorder, the defendant having an ongoing craving for Buprenorphine and describing withdrawal symptoms following cessation of use on his release from custody; and 5. antisocial personality disorder, with a pervasive pattern of behaviour consistent with a failure to conform to social norms, impulsivity, aggressiveness, reckless disregard for the safety of others and consistent irresponsibility.
2. In Dr Eagle's opinion, apart from his substance use disorder which is of a type which can be successfully treated and managed in motivated persons with evidence-based group and individual interventions, the defendant's diagnosed disorders were pervasive and enduring.
3. Dr Eagle was of the view that the defendant posed a risk of causing serious harm to others by engaging in acts of violence towards others and driving offences if he ceases to be a forensic patient. She was of the opinion that the risk of re-offending arises out of a complex interaction between his intellectual disability, psychological vulnerabilities from his exposure to trauma, his substance use disorder and personality traits.
4. Dr Eagle's opinion on the risk posed by the defendant was summarised as: "On the basis of a structured professional judgement tool, I am of the view that [the defendant's] risk of future violence is significantly elevated when compared to other offenders. He has substantial loading of historical factors associated with future violence in addition to a high loading of clinical factors. In the absence of his current risk management regime, which includes the need for a forensic order to provide the mandatory framework, [the defendant] would have a substantial loading of risk management factors associated with the risk of future violence."
5. The defendant's emotional dysregulation and other psychological vulnerabilities (as a result of childhood trauma), cognitive deficits, lowered impulse and stress control, poor social cognitive skills, vulnerability to peer influence, antisocialism and illicit substance abuse were, in her view, substantial hindrances to his ability to "engage in appropriate interventions or access supports".
6. In Dr Eagle's opinion, over time, if the defendant was able to develop better insight with the benefit of sustained clinical support, structure and education, this might hopefully improve his capacity to function personally and vocationally which would enable his integration into a pro-social community environment. Access to psychological interventions to improve his capacity for emotional control and integration into such an environment with the benefit of positive family and social supports and other motivating factors such as employment could be expected to reduce the defendant's risk of illicit substance use and violent re-offending. Dr Eagle was of the view that in order to manage the risk posed by defendant, the type of support and supervision referred to by Dr Furst was required.
7. In Dr Eagle's view, the defendant would not be considered a mentally ill person for the purposes of the Mental Health Act, and thus on the basis of his current presentation could not be detained in hospital or subject to enforced treatment or interventions nor would a community treatment order under that Act be available. She could not identify any other less restrictive means than the continuation of his status as a forensic patient for adequately managing the risk posed by the defendant.
8. As to the length of any extension of the defendant status as a forensic patient, Dr Eagle was of the opinion that the defendant: "would require a sufficient period of time to allow for the gradual lessening of restrictions as he is able to reintegrate into the community and addressed dynamic risk factors for re-offending. Given his recent emotional instability, the severity of his cognitive deficits and the complexity of his risk management needs, I anticipate that this process may take a number of years".
9. In her subsequent emails, Dr Eagle clarified that she thought a period of three years would be the minimum time required for the defendant to remain a forensic patient.
10. The opinions of the psychiatrists were essentially confirmed during their oral evidence.
11. I found both Dr Furst's and Dr Eagle's opinions to be consistent, well-reasoned and supported by the material before the Court. I accept their evidence.

Report of the registered psychologist provided under cl 5(b) - cl 7(2)(c)

1. The report provided under cl 5(b) of Sch 1 was prepared by Ms Carline Hare, forensic psychologist, and was dated 23 November 2018. Ms Hare undertook a semi-structured clinical interview with the defendant on 29 October 2018, conducted via AVL with Goulburn Correctional Centre. With the defendant's consent, Ms Hare contacted his sister and a representative of the CJP. Ms Hare also reviewed the relevant documentation concerning the defendant's treatment and criminal history.
2. For risk assessment purposes Ms Hare adopted the HCR-20-3 structured professional judgement approach and the Structured Assessment of PROtective Factors for violence risk, Second Edition (SAPROF). Having applied HCR-20-3 and SAPROF, Ms Hare concluded that the defendant: "evidences combined moderate protection against future violent offending, and moderate-high risk of violent re-offending. Specifically, [she was] of the opinion that he presents high risk of engaging in reduced-seriousness violence (e.g. verbal aggression that involves threats of violence), and moderate risk of engaging in actual physical violence.…"
3. In Ms Hare's view, the defendant presented with complex mental health concerns including mild intellectual disability, frontal lobe syndrome (and associated executive dysfunction issues), ADHD and symptoms of mood disorder.
4. Based upon his presentation, recent functioning and the current plans, Ms Hare thought his risk could be successfully managed within the community on conditional release at the Berkshire Park IRS. In order to alleviate what she assessed as his moderate risk of physical violence and high risk of verbal aggression/threats of violence, Ms Hare recommended conditional release to the Berkshire Park IRS "under the supervision of the MHRT with a two-year extension to his limiting term to enable a supervised transition into more independent community living". Ms Hare also set out a detailed list of other support, supervision and treatment that should be provided.
5. In summary, Ms Hare concluded in her report: "… I'm of the opinion that [the defendant] poses a significant risk of causing serious harm to others if he ceases being a forensic patient on 11/04/2019, and as such, I'm of the opinion that he requires on-going management as a forensic patient. I recommend an application be sought to extend his status as a forensic patient for a further two years.… The Berkshire Park IRS appears a suitable placement in terms of providing fittingly intensive supervision and support to enable [the defendant] to commence reintegrating into the community and manage any concerns for violence risk that might arise.… In the absence of an extension of his limiting term, there is risk that [the defendant] would decline an 'optional' accommodation placement and seek to reside with family members who are not equipped to manage his complex needs during this critical transition phase. In this circumstance, I believe that his risk of causing serious harm to others would become heightened and unmanageable.…"
6. In oral evidence, Ms Hare noted that she had suggested a period of two years "for mandatory supervision and extension" but said she would not be averse to that being longer but she certainly did not think it should be significantly shorter. [3] She said that a medium-term period of 2 to 3 years seemed appropriate. [4] In cross-examination, Ms Hare confirmed that she saw the two-year period as the absolute minimum. [5] She went on to explain her position as follows: [6] "So I felt two years really was the need to have and longer than that is probably sitting for me more in the nice to have and certainly ensuring that we are not setting [the defendant] up to fail."
7. I accept Ms Hare's evidence, which is essentially consistent with that of Drs Furst and Eagle.

Other reports of psychiatrists, psychologists or medical practitioners - cl 7(2)(d)

1. The defendant did not provide on any such report. There were a number of earlier reports of psychiatrists, psychologists or medical practitioners contained in the documentation provided by the State. Dr Furst, Dr Eagle and Ms Hare reviewed some or all of this material. Relevant portions were also helpfully summarised in the State's written submissions. In general terms, these reports provide support for the opinions of Drs Furst and Eagle and Ms Hare. It was not suggested that they contained anything that would call into question those opinions and I have no reason to accept that they do.

Relevant MHRT orders or decisions - cl 7(2)(e)

1. As noted above, the defendant has been reviewed by the MHRT on 15 occasions, the latest review hearing being held on 22 March 2019. The outcomes of those reviews and the reports relied upon were included in the documentation considered by the psychiatrists and psychologist and have been summarised in the State's submissions. There is nothing in that material that causes me to reach any conclusion different from those of Drs Eagle and Furst and Ms Hare.
2. It can be noted that at the 14th review hearing on 23 November 2018, the MHRT considered a report from Corrective Services NSW stating that the defendant had requested a transfer to another correctional centre earlier in the year as he "has made claims that he is currently being stood over by members of the Nomads OMCG due to his uncle's affiliation with the Hell's Angels OMCG and fears for his safety". On that occasion, the MHRT noted that the defendant was anxious to commence his transferred to Berkshire Park IRS and that a CJP assessment of the family home concluded that it was not a suitable option for him "due to antisocial influences within the family".
3. On 9 April 2019, the MHRT ordered that the defendant be released on 15 April 2019 to Berkshire Park IRS, subject to conditions including that he must accept Mr Lindshield from the CJP as his case manager and Dr Philipos as his GP, must not take illegal drugs or consume alcohol, must submit to alcohol and drug testing as requested and must not have any overnight visits prior to his next Tribunal review in October 2019.

Other reports from governmental and other agencies - cl 7(2)(f)

1. Over the years since about 2007, there have been a number of reports produced for the Department of Ageing, Disability and Home Care (ADHC), the Department of Juvenile Justice, the CJP, and the NDIS. Some or all of this material has been considered by the psychiatrists and the psychologist and has been summarised in the State's submissions. These reports have identified the defendant's needs at various times, the support provided and other steps taken in an attempt to meet those needs and the defendant's responses. I do not accept that these reports provide any basis for not accepting the opinions of Dr Furst, Dr Eagle and Ms Hare.
2. It can be noted that Dr Furst, in his report, refers to two risk manageability reports prepared by personnel from the CJP in September 2016 and October 2018. In the first, the defendant was assessed as displaying a high risk of re-offending according to the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend - general version (ARMIDILO-G), with 65% of individuals in the high risk category going on to re-offend within six months. The defendant was also assessed as requiring a high level of support in relation to his identified risk factors, in particular, the IRS service at Berkshire Park being identified as suitable. In the later report, it was noted that using the Group Risk Assessment Model (GRAM) and ARMIDILO-G, if the defendant were placed in Berkshire Park IRS with support from ADHC/CJP, he was assessed as falling in the moderate risk category on the ARMIDILO-G and in the low risk range for re-offending on the GRAM. For the reasons set out in his report, Dr Furst was of the view that the later assessment was overly optimistic and/or unrealistically positive. In addition, the doctor was of the view: "I would go further than the opinion expressed by the authors [of the second report] that the results of the GRAM conducted in August 2018 falling in the low risk range for re-offending 'should be reviewed with a degree of caution as it may provide an underestimate of his true risk', as in my opinion, this management clearly underestimates [the defendant's] true risk of future violence and/or re-offending."
3. For the reasons Dr Furst gave, I prefer his opinion to that of the authors of the October 2018 report. Further, even if the assessment made by those authors should be accepted, it was limited to an assessment on the basis that the defendant was placed in Berkshire Park IRS with support. It was not an assessment of his risk of re-offending if he were not a forensic patient and were released into the community without supervision. Accordingly, I would not accept it as a true measure of the relevant risk posed by the defendant.
4. The defendant relied upon: 1. a report dated 3 May 2019 from Mr Graham Krahe, service coordinator, Lifestyle solutions which operates Berkshire Park IRS; 2. a report based on an assessment of the defendant carried out on 8 May 2019 from Mr Matthew Lindshield, A/Team Leader at the CJP.
5. Mr Krahe outlined the defendant's behaviour since his arrival at Berkshire Park on 15 April 2019. He noted that the defendant has avoided aggressive behaviour, been medication compliant and had enjoyed visits from his family on four occasions. The areas where the defendant required most support included: cooking; form completion; reading - comprehending sentences; writing development - structure; communication in the community; completing shopping list; finances - budgeting, financial and business transactions; medical appointments; and emotion control (anxiety). As to his rehabilitation, Mr Krahe said that the defendant would be linked to psychiatric and psychological services as well as Nepean Health Drug and Alcohol Services in order to transfer the defendant to the public Suboxone program from the private program he was then participating in and disability employment services. It was Mr Krahe's recommendation, especially given the defendant's positive family support, that: "a 12 month extension would be suitable, allowing enough time to prove his worth without destroying his soul, confidence and desire to achieve".
6. Mr Lindshield's report included a more detailed review of the defendant's background and circumstances. He used the GRAM assessment tool on 6 May 2019 and ARMIDILO-G. On the GRAM, the defendant score placed him in the "low risk range of re-offending". However, Mr Lindshield immediately went on to note: "that [the defendant's] lack of criminal charges within the last five years may relate in part to him being in custody and does not necessarily suggest that he would have refrained from offending had he been in the community. Specifically, [the defendant] had several institutional charges for drug possession during this same time period, which may have resulted in formal convictions had he exhibited this behaviour in the community. As such, this risk score should be reviewed with a degree of caution since it may provide an underestimation of his true risk."
7. Using ARMIDILO-G, the defendant received an overall rating "in the low risk category" but Mr Lindshield went on to note that caution should again be emphasised in viewing both this score and the GRAM score due to the defendant's "repeated institutional charges for drugs whilst in custody and his limited reintegration, including no independent community access."
8. In his summary, Mr Lindshield noted that the overall risk rating was within the low range "should he continue to reside and receive support at Berkshire Park IRS". His recommendation included: "… Many of the protective factors in this report are based upon his settling into a restrictive and supportive environment and may have looks quite different if he was released into a less restrictive environment. Additionally, while highly motivated to enact the positive changes in his life… His ongoing anxiety and unwillingness to deeply explore inappropriate attitudes and behaviours that led to his past offending may set him up for failure in the community. This should decrease if he has an openness to build his skills and explore the courses for his offending behaviour. Therefore, the author is of the opinion that it will be in the best interests for both the safety of the public and [the defendant] that his current limiting term be extended up to no more than 12 months. This will allow for further oversight of his risk management by the [MHRT] while also allowing time for sufficient evidence to be obtained for future legal determinations regarding his limiting term. Additionally, the author has spoken with [the defendant] about the possible extension of his limiting term. The author believes that while [the defendant] would be disappointed with any extension, he appears to possess enough positive support and motivation for change that it would not [undo] his current progress."

Compliance with obligations a forensic patient - cl 7(2)(g)

1. The defendant's custodial history of disciplinary breaches has been referred to above, as has his commendable level of compliance since being admitted to Berkshire Park IRS, as reported by Mr Krahe. I have taken these matters into account and, in my view, they provide additional reasons for accepting the opinions of Dr Furst and Dr Eagle.

The views of the court that imposed the limiting term - cl 7(2)(h)

1. The views of Bennett DCJ when imposing the limiting term of seven years have been set out above. His Honour emphasised the need to protect the community from the defendant and his behaviour while also recognising the complex and difficult needs and mental condition of the defendant. These views I have taken into account.

Any other information as to the risk of future cause serious harm to others cl 7(2)(i)

1. It should be noted that the domestic violence aspects of the defendant's offending have related to his girlfriend. I accept, as the State submitted, that his relationship with his girlfriend can be described as "complicated". At some point in the evidence, she is described as his fiancée and at other times there is obvious conflict in the relationship. Ensuring that the defendant is appropriately treated, cared for and supervised will assist to protect his girlfriend and, to the extent that she can be a pro-social influence upon him, that can be facilitated without undue risk to her.
2. The defendant has signed a letter in which he expresses his desire to return to the community and move on with his life. In addition, his sister has provided an affidavit in which she explains the family's willingness and desire to assist the defendant. I have taken those matters into account and shall refer to them later in these reasons. I commend the defendant for his intention to do the right thing by his family and everyone who has supported him upon his release to Berkshire Park IRS.

Unacceptable risk

1. The first limb of the test in cl 2(1) (a) of Sch 1 to the MHFP Act requires the Court to consider whether it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.
2. I accept the opinions of Dr Furst and Dr Eagle, and of Ms Hare including, in particular, their opinions in relation to the defendant's diagnoses and their assessments of the level of risk of his engaging in violent offending if he ceases to be a forensic patient. Having regard to those opinions, the other information in the material and documentation which provides support for or, at the very least, is not inconsistent with those opinions, the defendant's past conduct, the likelihood of his re-offending if not supervised as a forensic patient, and the likely gravity of the consequences of that re-offending for his girlfriend, other associates of the defendant and the community generally, the conclusion that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient is, in my view, inevitable. Nor does it seem to me that Mr Krahe's or Mr Lindshield's evidence would provide a substantial basis for concluding otherwise. Both of their reports appear to be predicated on the need for the defendant to remain, for some time, under supervision and residing at Berkshire Park IRS in order for the risk he currently poses to be managed so as to be acceptable.
3. For these reasons and applying the principles set out above, I am satisfied to a high degree of probability that the defendant does pose an unacceptable risk of causing serious harm to others if he ceases being a forensic patient at this time. Thus, the first limb of the test for making an extension order in cl 2(1) is satisfied.

Can the risk be adequately managed by other less restrictive means?

1. The second limb of the test in cl 2(1) involves a determination of the question whether the Court is satisfied to a high degree of probability that the risk posed by the defendant cannot be adequately managed by other less restrictive means.
2. Drs Furst and Eagle were strongly of the view that there were no less restrictive means by which the risk currently posed by the defendant could be adequately managed. I found their reasoning, as set out in their reports, to be well supported by their expertise and by the material concerning the defendant's developmental history, mental condition, substance abuse and criminal and custodial record. Their reasons were convincing and I accept their opinions.
3. Management as a mentally ill person under the Mental Health Act is not currently an option in the defendant's case, as he is not mentally ill.
4. A guardianship or financial management order under the Guardianship Act would not adequately address the risk posed by the defendant, given the complex and difficult factors that give rise to the risk, which factors extend well outside those which can be the subject of decisions made by a guardian or financial manager appointed under that Act. In addition, there is very limited, if any scope, for a guardian or financial manager to take action against the defendant's express wishes and in order to ensure the protection of the public or individuals rather than because it was in the best interests of the subject person. See generally the discussion of guardianship orders as a potentially less restrictive alternative in Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [124] - [131].
5. It did not appear to me that Mr Krahe or Mr Lindshield were expressing the opinion that there were available other less restrictive means of adequately managing the risk posed by the defendant at the present time. Their evidence was more focused upon the length of any extension of the defendant's status as a forensic patient. No other specific less restrictive means, apart from a shorter extension, were proposed and elaborated upon.
6. In oral evidence, Dr Furst, Dr Eagle and Ms Hare confirmed that they believed there existed no "other less restrictive means than making an extension order, regardless of the length of time that it is, is there any other way of managing the risks he presents other than the making of the order". [7]
7. In all the circumstances, I am satisfied to a high degree of probability that the risk posed by the defendant of causing serious harm to others if he ceases being a forensic patient cannot be adequately managed by other less restrictive means and, consequently, the requirement in cl 2(1)(b) of Sch 1 to the MHFP Act is met.

Should an extension order be made?

1. Both limbs of the test in cl 2(1) of Sch 1 having been satisfied, the Court's power to make an extension order is enlivened. In all the circumstances, and given the nature and extent of the risk posed by the defendant, it appears to me that, in order to protect the safety of members of the public and to provide for the appropriate care, treatment and control of the defendant in making the transition from custody to reintegration into the community, an extension order should be made. The issue then arises as to the length of such an extension.

The length of an extension of the defendant's status as a forensic patient

1. As has been recorded above, Dr Furst and Dr Eagle both came eventually to the view that an extension of three years was appropriate and necessary. Ms Hare accepted that two years was the absolute minimum but three years would be appropriate.
2. Mr Krahe and Mr Lindshield suggested that 12 months would be more appropriate as the length of any extension. During the oral evidence, this suggestion was addressed by Drs Eagle and Furst and Ms Hare. [8]
3. I also note here that a letter signed by the defendant has been put in evidence before the Court. In that letter, the defendant noted that he had served seven years "being my full sentence" and that he has a supportive family to encourage him. He says that he has been complying with directions and doing the right things since his release to Berkshire Park IRS on 15 April 2019. He also said that he does not "want to be set up to fail". He opposes his status as a forensic patient being extended and notes that his goal is to move on from Berkshire Park and get on with his life, get a job, get his license and get married. He says he is now wiser and more mature and wants to do the right thing with his family and everyone who has supported him on his release. This was supported and confirmed in the affidavit of the defendant's sister.
4. The defendant's attitude and plans for the future are hopeful signs. I have taken into account the positive developments in the defendant's conduct and achievements which were referred to in the written submissions made on his behalf. I also observed that many members of his family were present in Court during the hearing and I fully accept their genuine desire to support the defendant in making a successful transition back into the community and a positive contribution to society.
5. It is also important, as the defendant himself said, that he not be set up to fail. In my view, there is a serious risk that he would fail in making the transition from custody to the community if his status as a forensic patient came to an end after only 12 months. As was explained during the oral evidence, it would be possible, if the defendant made sufficient progress, for him to move to a more normal life in the community, even if he remained a forensic patient, provided that the MHRT determined that this was an appropriate course. The positive changes in the defendant's life should not be inhibited, and should be assisted, by his remaining a forensic patient for more than 12 months.
6. Based on the evidence of Drs Furst and Eagle and Ms Hare and the circumstances of the defendant, I find that 12 months would be too short a period for an extension order and that three years would be more appropriate, especially having regard to the defendant's mental condition and needs and the fact that the defendant would not be required to remain in custody or live at Berkshire Park IRS for the whole of the period of any extension order, if sufficient progress were made so that he could move to a different, less restrictive facility and perhaps eventually to live with his family. This could all occur and be facilitated, while he remained under the supervision of the MHRT because of his status as a forensic patient.
7. If the extension was only for 12 months, it would be likely that, while some progress might have been made by the defendant, another application for an extension would have to be made before the expiration of that period. That would cause stress and anxiety for the defendant which would not assist his mental condition, treatment and care.
8. An extension for three years should be seen as the most effective way of assisting the defendant to make a successful transition from custody and the supported living arrangements at Berkshire Park IRS eventually to returning to live with his family or in some other suitable arrangement in the community, while at the same time ensuring appropriate protection for the community from the risk posed by the defendant if he ceased being a forensic patient and was not supervised. A shorter period may well set up unrealistic expectations on the defendant's part and not allow sufficient time for treatment and care so that any transition to life in the community would be likely not to succeed.

Orders

1. The order restricting access to the file without notice was not opposed, as I understood it.
2. For the reasons set out above, the Court makes the following orders: 1. Pursuant to cll 1 and 7(1)(a) of Sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant's status as a forensic patient is extended for a period of three years from the date on which the interim extension order made by Ierace J on 12 March 2019 expires. 2. Access to the Court's file in this proceeding is restricted such that access is permitted to a non-party only with leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. 3. The Registrar is to notify the Mental Health Review Tribunal of the making of order 1 above.

Endnotes

1. T14.15-14.32.
2. T37.4-24.
3. T28.47-49
4. T29.18-19
5. T45.44 - T46.4
6. T46.19-21
7. T33.39-48.
8. T29.23-32.16 and in cross-examination, for example at T44.20-39 and T45.32-T46.4. 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: 01 July 2019