Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Preliminary) [2022] NSWSC 852 Hearing dates: 15 June 2022 Date of orders: 15 June 2022 Decision date: 15 June 2022 Jurisdiction: Common Law Before: Walton J Decision: (1) By way of interlocutory relief, an order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"): (a) appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the Defendant to attend those examinations. (2) By way of interim relief, an order pursuant to ss 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 10 July 2022 for a period of three months. (3) By way of ancillary relief, an order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Catchwords: MENTAL HEALTH – high risk offender – preliminary hearing – forensic patient – risk of harm to the community – substance use disorder – interim orders sought to extend status of defendant as a forensic patient – interim orders not opposed – making of final order opposed – statutory conditions for making of interim orders satisfied – orders made Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 72, 121, 122, 123, 126, 127, 130, 131; Pt 6 Cases Cited: Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 Category: Principal judgment Parties: Attorney-General for New South Wales (Plaintiff) Mustaba Beryalay (by his tutor Dr Katherine Johnson) (Defendant) Representation: Counsel: K Curry (Plaintiff) D Bhutani (Defendant) Solicitors: NSW Crown Solicitor's Office (Plaintiff) Karnib Saddik Law Firm (Defendant) File Number(s): 2022/112656 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: By a summons filed on 19 April 2022, the Attorney General of New South Wales (hereafter "the Attorney") seeks an extension order under Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") in relation to Mustaba Beryalay ("the defendant") extending his status as a forensic patient for a period of five years. 2. The present proceedings before the Court, however, are a preliminary hearing. That preliminary hearing concerns, primarily, the interim and interlocutory relief sought by the Attorney, as well as ancillary relief. As to the former category of relief, the Attorney seeks interlocutory relief pursuant to s 126(5) of the Act appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to this Court on the results of those examinations by a date to be fixed by the Court; and directing the defendant to attend those examinations. 3. By way of interim relief, an order pursuant to ss 130 and 131 of the Act is sought, namely that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing at midnight on 10 July 2022 for a period much three months. The ancillary relief sought is contained within paragraph 4 of the relief claimed in the summons. I do not separately articulate or describe the content of that relief. 4. The Attorney's application proceeded upon the basis of evidence within three folders of material. For present purposes, it is sufficient to note the affidavit of Sarah Najjar of 19 April 2022 which brings with it exhibit SN-1 in the proceedings. Within exhibit SN-1 is a Risk Assessment Report of Dr Richard Furst dated 10 February 2022, as well as earlier psychiatric reports of Dr Kerri Eagle of 30 April 2019, Dr Richard Furst of 28 April 2019, and a psychologist report of Caroline Hare of 23 November 2018. The exhibit also contains a criminal history by way of a bail report and various information concerning conviction, sentences and appeals. I note that the Court has received an aide memoire of the defendant's criminal history in the form of an index. 5. When called today, counsel appearing for the defendant (noting that there is in the Court's record a consent to act as a tutor with respect to the defendant by Dr Katherine Johnson) indicated that the interim and interlocutory relief, as well as the ancillary relief sought in the preliminary hearing, was not opposed by the defendant, but properly noted that ultimately the Court was required to consider the matter in the light of the evidence before the Court relevant to the applicable statutory test. 6. The defendant is a 30 year old male of Afghani heritage. He is reported to have been born in a bomb shelter, suffering from hypoxic brain injury at birth. He and his family were Shi'as, members of the Hazara ethnic group, and were exposed to armed conflict in Afghanistan. In 1997, they travelled to Australia as refugees. The defendant experienced seizures between the ages of six months and seven years. His family also reported that he suffered a head injury at age 7. He has been reported to have significant learning, memory and behavioural difficulties. The defendant is presently a forensic patient detained at the Metropolitan Remand and Reception Centre. He has been diagnosed with intellectual disability, mild range of severity acquired brain injury, frontal lobe syndrome, executive dysfunction, depression, anxiety, post-traumatic stress disorder, poly substance use disorder, antisocial personality disorder and suspected psychosis, attention deficit hyperactivity disorder, cannabis disorder and amphetamine use disorder. 7. The defendant's criminal history commenced in 2005 when he was fourteen years of age. That history was attended by incidents of aggressive or assaultive behaviour. But of greater significance in the criminal history is a more recent escalation in the offending of the defendant. 8. A limiting term expired on 11 April 2019. On 12 April 2019, Ierace J imposed an interim extension order following an application under the Mental Health (Forensic Provisions) Act 1990 (NSW) ("MHFPA") brought by the Attorney General. On 1 July 2019, Wright J extended the defendant's status as a forensic patient for a period of three years, expiring on 10 July 2019. 9. As I mentioned at the outset, pursuant to s 126(4) of the Act, a preliminary hearing is required. The plaintiff must satisfy the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. If the Court is so satisfied the plaintiff, as I mentioned, sought the relief in the summons appointing two qualified psychiatrists or registered psychologists or one of each to conduct separate examinations of the defendant and furnish their reports to the Court. 10. In my view, the threshold requirements of the Act in its present form have been satisfied in this preliminary hearing. The Act came into force on 27 March 2021 and repealed the former MHFPA. I agree with the submissions of the Attorney that the new Act does not substantially alter the process or test to be applied in applications for an extension order and the case law relating to the applications under the MHFPA remains applicable. 11. Section 121 of the Act empowers the Supreme Court to extend a person's status as a forensic patient. An extension order may be made if the Court is satisfied of the test in s 122. Section 122(1) provides that a forensic patient can only be made the subject of an order if, and only if, the Court is satisfied of a number of matters. The plaintiff bears the onus with respect to both limbs of s 122(1). The test in s 122(1) requires the satisfaction to a high degree of probability. Applications for extension orders may only be made in relation to forensic patients: s 123. A forensic patient is defined in s 72 of the Act. As I have mentioned, the defendant is currently a forensic patient. 12. Accordingly, the Attorney General may commence the application for an extension order prior to the expiry of the current term. The current extension order, which as I have mentioned, expires on 10 July 2022. 13. The application for an extension order may be made with respect to a forensic patient the subject of an existing order and may not be made more than six months before the expiry of the existing extension order s 124. 14. The structure and language of the Act has direct parallels with the Crimes (High Risk Offenders) Act 2006 (NSW) ("HRO Act") and as such assistance is gained from authorities dealing with that legislation. Unlike the HRO Act, however, this regime does not empower the Supreme Court to make specific orders about the care, treatment or control of a forensic patient. Such matters remain within the province of the Tribunal, which has the expertise in determining the best options for care, supervision, treatment and, if necessary, detention of forensic patients. 15. The two relevant tests in this matter for present consideration, as well as the principles applicable to a preliminary hearing, were the subject of agreement as between the parties to this matter. I adopt the statement of principles at [19] – [32] of Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041. 16. It is sufficient to observe, for present purposes, that, first, there is an unacceptable risk test. The Court has to be satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if he/she ceases being a forensic patient. Secondly, there is a less restrictive means test. If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others; then it must also be satisfied to the same degree of probability that the risk cannot be adequately managed by less restrictive means. 17. In this judgment, I do not propose to recite the various factors arising for consideration under s 127 of the Act. I note in that respect that I have closely read the written submissions for the Attorney in that respect dealing with those considerations and considered that they correctly record the evidence before the Court. 18. I propose only to pause to consider one aspect of those submissions, namely their attendance upon the report of Dr Furst received pursuant to s 125(b) and s 127(2)(c). Dr Furst, as I mentioned, prepared a report in relation to the defendant on 10 February 2022. Again, as mentioned, Dr Furst had previously assessed the defendant in April 2019. The Court has received a copy of that earlier psychiatric report in exhibit SN-1. On that occasion Dr Furst expressed the view that, "Being free of any coercive orders would likely lead to [the defendant] disengaging from appropriate services, absconding from supervised care, using drugs again, reoffending and posing a significant risk of harm to the general community and to himself." 1. In terms of diagnosis Dr Furst formed the view that the defendant met the criteria for the following mental disorders: intellectual disability (mild to moderate range); substance use disorder; and, persistent neurocognitive disorder. Dr Furst noted the following in relation to the defendant's conditions impacting upon his risk of reoffending: "His cognitive impairment frontal lobe syndrome disorder, in combination with substance use disorder and his poor judgment means [the defendant] remains a significant risk of falling into his previous pattern of drug use, criminal offending and recidivism if he is left unsupervised. This is especially so when one considers that [the defendant] already used drugs again and now has been arrested for domestic matters despite a very high level of community supervision between April 2019 and October 2021." 1. In relation to the risk assessment Dr Furst expressed the view that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient. In his opinion the defendant's primary risk factors relate to his substance use disorder and his difficulties in complying with recommended treatment and supervision programs. The doctor observed as follows: "Therefore all of the evidence reviewed suggests that [the defendant] has a moderate to high risk of reoffending whilst living within the community, even as a forensic patient, and a much higher risk of reoffending, approaching the level of becoming quite likely to reoffend, if he ceases to be a forensic patient. That is because he would most likely end up homeless, disengaged from services, associating with pro-criminal peers and using drugs again. Sadly, there is almost nothing positive to say about this man in terms of his current situation and future prognosis." 1. Additionally, Dr Furst opined that the defendant had multiple risk factors that require management as a forensic patient. I mention three for present purposes: his risk of use of weapons; his capacity to make serious threats; and, his tendency to solve problems by using drugs or becoming aggressive. As to the seriousness of prospective reoffending Dr Furst opined, "Although it is hard to accurately predict the type of harm that is likely to ensue if he ceases to become a forensic patient, I would regard it as quite likely that serious harm will come to one or more other persons in some fashion, at the very least in the form of victimisation from his aggressive and/or criminal offence and this would be a highly likely outcome in the event that [the defendant] ceases to be a forensic patient." 1. Turning to the second test in the statutory scheme, Dr Furst's opinion was that there was no other less restrictive option appropriate for the defendant. Considering his risk of harm to others, Dr Furst expressed the view that a forensic patient in a correctional centre was the least restrictive form of management. 2. I note that the written submissions for the Attorney provide summaries of the reports of Ms Hare, Dr Eagle, Dr Dossetor and Mr Sheehan. I have no disagreement with the summaries there proposed. 3. With that background, I turn then to the consideration of the two statutory tests, earlier discussed, which I must satisfy myself of before the making of any orders in the preliminary hearing as sought by the Attorney. I should say at the outset that I appreciate the assistance provided by Ms Curry of counsel for the Attorney in her written submissions in this respect. I accept her submissions as to the first and second limb. The factors which I now allude to are a reflection of that written submission. 4. It was submitted that, whether the defendant posed an unacceptable risk of causing serious harm to others if he ceases being a forensic patient, is an evaluative task requiring consideration of, amongst other things, past conduct, the likelihood of reoffending and the gravity of the offending. 5. The evidence overwhelmingly points to the defendant needing intensive supervision of the kind he is currently receiving as a forensic patient. The defendant's conduct during his recent attempt to transition into the community demonstrated an increase in high risk behaviours. This included violence, inappropriate conduct with support staff, substance use, further offending and absconding from his accommodation. Dr Furst's opinion, which I regard as pivotal to the conclusions that I have reached, was that the defendant, being armed with a knife at the time of the alleged assault and intimidation of MS, had escalated in terms of the level of aggression. He also expressed the view that it is noteworthy that the defendant's driving offence on 5 February 2001 involved driving 40 kilometres over the speed limit, representing a danger to both the defendant and the community. 6. I agree with the submission of the Attorney that, having regard to the opinion of Dr Furst, the earlier expert opinions, the decisions of the Mental Health Tribunal and the defendant's criminal history, the unacceptable risk test is satisfied in this case. 7. Turning to the second limb. It appears to me that the evidence presently before the Court represents a very substantial basis upon which it may be concluded that the risk so identified cannot be managed by any less restrictive means than proposed in the interim orders. I have in mind in that respect the forceful opinion expressed by Dr Furst, namely, the defendant's status as a forensic patient provides the most appropriate means of managing his multiple risk factors and that no less restrictive means are available. 8. The defendant cannot be managed as an involuntary patient under the MHFPA as he is not a mentally ill person within the meaning of that Act. Further, as a result of the same, a community treatment order is not a viable or possible option. Dr Furst's view is that the defendant requires a far higher level of controlled supervision and containment than the powers available under the Guardianship Order. 9. The balance of those considerations and opinions, including those previously given by medical experts, results in a conclusion that the second limb is satisfied. A forensic patient status for the defendant will allow more rigorous monitoring and comprehensive management of the risks posed by the defendant in the community. 10. In all the circumstances, I am satisfied that the matters alleged in the supporting documentation before the Court would, if proved, justify the making of an extension order such that the orders should be made appointing two health professionals to examine the defendant and to direct him to attend those examinations. It is also appropriate in the circumstances that an interim extension order be made. 11. In the result, the Court grants the relief claimed in the summons filed on 19 April 2022 in paragraphs 1, 2 and 4 thereof. 12. The orders of the Court are: 1. By way of interlocutory relief, an order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"): 1. appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. directing the Defendant to attend those examinations. 1. By way of interim relief, an order pursuant to ss 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 10 July 2022 for a period of three months. 2. By way of ancillary relief, an order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. ********** 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: 28 June 2022