I am conducting a preliminary hearing as required by the provisions of s 24 Terrorism (High Risk Offenders) Act 2017 (NSW). The interim relief sought in addition to the appointment of experts by the Court under s 24(5) is for an interim supervision order in accordance with the terms of s 27 of that Act.
Under s 24(5), the test described by the statute as a condition of the Court's power to make an order directing the attendance of the defendant on court appointed experts, is whether the court is satisfied that the matters alleged in the supporting documentation would, if proved - I interpolate at the final hearing - justify the making of an extended supervision order.
Likewise under s 27(b), the condition controlling the power of the Court to make an interim supervision order is predicated on the question of whether the matters alleged in the supporting documentation would if proved - I interpolate again, at the final hearing - justify the making of an extended supervision order.
In relation to the prescribed procedures, under s 23(3)(a) the State of New South Wales ("the State") is required to support its application by documentation that addresses each of the matters referred to in s 25(3). I interpolate these are the mandatory considerations which govern the making of an extended supervision order after a final hearing, if any. The topic of the present controversy is that s 23(3)(b) requires a report prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner, or other relevant expert, that assesses the likelihood of the eligible offender committing a serious terrorism offence. As it happens, that report is also, or consideration of its contents is, a mandatory matter under s 25(3)(c).
Mr Kerkyasharian of learned counsel, who appears for the defendant with Mr Bhutani, has objected to the tender of a report in the plaintiff's case, prepared by a clinical psychologist, Ms Kara Thomson, on 19 May 2023, which purports to be the s 23(3)(b) report on the basis that it does not conform with the statutory description. I should also say that learned counsel objects to its admissibility more generally, submitting that Ms Thompson does not have the requisite specialised knowledge to express an opinion about the matter in accordance with the provisions of s 79 Evidence Act 1995 (NSW). He seeks leave in the context of this preliminary hearing to call evidence, including Ms Ellicott, the solicitor from the Crown Solicitor's Office who instructs Ms Callan SC, who appears with Ms Zheng for the State. He also wishes to cross-examine Ms Thompson to demonstrate: (a) that the report does not conform with the Act and s 79 of the Evidence Act: and I assume (b) to challenge her reliance upon, or use of, the Violent Extremism Risk Assessment 2 Revised ("VERA-2R") tool, for the purpose of making her assessment.
It is not necessary to go into the merits of the case at this stage. There are a number of things relevant to the decision. The first matter is that the question of whether s 23(b) has been complied with is a mixed question of fact and law, which is a question for me, and not a question which turns or depends upon the opinion of anyone else, including the author of the report. The question is whether the report, on the face of it, complies with the provision.
The second matter, which seems to me to be relevant to this question, is what is appropriate at the preliminary hearing that the Court is required to conduct under s 24(4). In my opinion, given the limited nature of the enquiry at a preliminary hearing, notwithstanding that, at least in the interim, Mr Richardson's liberty is subject to jeopardy, at least in terms of conditions being imposed upon him, a preliminary hearing is in the nature of an interlocutory application. And without going through the case law, all of which I think is well understood and has been set out in the written submissions of the parties, the matter is akin to an interlocutory procedure in civil cases to determine, at its highest, whether there is a case fit to go forward for final hearing.
When I say a case, it is necessary that the supporting documentation alleges facts, or contains material, which demonstrate that, if the matter goes forward to a final hearing and those matters are proved to the ordinary civil standard of proof generally, but in terms of the assessment of relevant risk to the statutory standard of a high degree of probability, then the Court is bound to make orders in relation to the matter.
It is not, in my opinion, necessary or even appropriate that the Court should make any assessment about the likelihood of that outcome obtaining. It is simply a matter of an assessment of the material available at this stage to determine whether, as I have said, and I repeat, because of what the statute says, if those matters are proved at the final hearing, it would be open to a judge acting judicially to make an extended supervision order.
It seems to me that, in accordance with the usual procedures in civil matters, disputed questions of proof and admissibility can be determined, and are appropriately determined, at the final hearing. Although the matter has often been compared to the determination of a prima facie case in criminal trials, like all analogies, this is not entirely accurate. It would seem to me that there is much to be said for comparing it to the type of test which the Court would be required to make if it was dealing with an application for an interlocutory injunction. But that analogy is also limited. But both the prima facie case analogy and the interlocutory injunction analogy demonstrate that it is not necessary for the State to prove its case at this point in time. One needs to return to the statute and bear in mind the statutory test.
Basically, it is an assessment on the basis of the supporting documentation whether the Court is satisfied that there will be evidence called at the hearing which, if proved - and it may not be proved - would justify a final order being made. It seems to me that, just as the Court limits cross-examination of witnesses in other interlocutory civil applications, so too it is appropriate in a preliminary hearing under the Act to limit, or refuse leave to, cross-examination.
I am well aware that use of the VERA-2R has become very controversial in this field, and I am aware from the material that I have been provided with for the purpose of this hearing that there is going to be evidence at the final hearing which will challenge the validity of the VERA-2R as a tool to assist in the formation of a clinical judgment about the assessment of the relevant risk.
But the final hearing is the occasion for those matters to be fully ventilated, not this hearing. The fact that even eminent experts may have called into question the validity of VERA-2R as a risk assessment tool, does not affect the admissibility of the opinions of experts who disagree, even at the final hearing, I venture to suggest.
It is well established that, sofar as the preliminary hearing is concerned, the Court's concern, in terms of whether s 24(5) is satisfied, and whether 27(b) is satisfied, is with the supporting documentation propounded by the State. It is not concerned with the competing or countervailing material that may be put forward on behalf of a defendant, except to the extent to which an application is made for the Court to exercise the residual discretion not to make an order under s 27, or in relation to the conditions of any interim order that is made under s 29.
All of these matters persuade me that I should not exercise my power to grant leave to Mr Kerkyasharian to either call Ms Ellicott as a witness, or to cross-examine Ms Thompson in relation to the report, and that I should decide for myself whether the report, if proved at the final hearing, justifies the description contained within s 23(3)(b).
I should also say that there has been an objection to the admission of the report under s 61 of the Act. Mr Kerkyasharian has argued that the chronology demonstrates that an objection to the report having been indicated, that the device of a section 58 notice has been deployed, in an attempt to outflank the objection by virtue of 61, which permits material produced in compliance with an order under s 58 to find its way into evidence over and above the objection of the defendant.
It seems to me it is unnecessary to decide that issue in the circumstances of this case at this preliminary hearing. There are a number of grounds on which the report finds its way into evidence, if I assess that it satisfies the statutory test. To my mind, given the requirements of s 23(3), by parity of reasoning with the decision of the Court of Appeal in Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [41] and [78] (Bathurst CJ), by necessary implication the report is admissible, quite apart from the operation of s 61.
It also seems to me that the report would be admissible at this stage if I am satisfied that it meets the statutory language, because it is a document referred to under s 25(3)(c) which is also required to be produced at the preliminary hearing in accordance with s 23(3)(a). So I will leave to one side the question of whether it is admissible under s 61 until the final hearing. I must say, in any event, in accordance with the usual practices of the courts in civil proceedings of an interlocutory nature, by dint of s 75 Evidence Act, many things find their way into evidence which would not be admissible at a final hearing. But I make no further comment about that.
The real question is whether I am satisfied that the report, for the present limited purposes, notwithstanding the importance of them, as I have said, is a report prepared by relevantly, a registered psychologist, that assesses the likelihood of Mr Richardson committing a serious terrorism offence. I accept Mr Kerkyasharian's submission that, on the face of it, the report does not use that expression: the likelihood of the eligible offender committing a serious terrorism offence. However, with respect to him, in substance it addresses that question, in my judgment, directly.
Mr Kerkyasharian took me to a number of passages in the report to make good his argument. In particular, he referred me to paragraphs 84 and 85, where Ms Thompson stated it is not scientifically possible to accurately predict whether an individual offender will or will not re-offend, and the best that can be done is to make an estimate anchored in the empirical literature.
He also took me to paragraph 93, where Ms Thompson again repeated that the assessment of the risk of violent extremism cannot be anchored in statistical probabilities, and subsequently, a numerical score cannot be provided. Rather, the overall risk judgment is based upon the clinician's assessment of the available information at the time of the assessment. And at paragraph 133, the expert concluded:
"Mr Richardson has been assessed as a moderate to high risk of general offending, and a high risk of violent reoffending, relevant to other adult male violent offenders. His risk of engaging in an act of violent extremism, politically motivated violence, and/or terrorism activity, has been assessed as being within the high range of risk." (emphasis in original)
She also expressed the view he warrants ongoing monitoring as well as risk and case management.
To my mind, in substance, those passages do assess the likelihood of the eligible offender committing a serious terrorism offence. It seems to me that it is not necessary for the expert, or the putative expert, to express the opinion directly in terms of the statute. That would be a triumph of form over substance, and I am satisfied that, to use shorthand, Ms Thompson's report is a risk assessment report for the purpose of s 23(3)(b) and also s 25(3)(c). And for that reason, regardless of s 61, it is admissible at least at this preliminary hearing.
Mr Kerkyasharian also submitted that Ms Thompson was not even asked to address the statutory question. With respect, I am not persuaded that is correct. There is a heading, at page 44 of her report, just ahead of paragraph 158, "specific questions as outlined in the letter of instruction", and she addresses those specific questions. This does not persuade me in any way that she was not as well asked, and primarily, to address the statutory requirements and purpose embedded in s 23, which is why her report was required.
I am satisfied, as Ms Callan submitted, that the summary of those matters I have referred to in more detail in deference to Mr Kerkyasharian's argument, narrated in the executive summary, at page three of the report, satisfy the statutory test, and I will admit the report as part of Exhibit SE-1.
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Decision last updated: 10 July 2023