Attorney General for New South Wales v Cullu (Preliminary)

[2025] NSWSC 197

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for New South Wales v Cullu (Preliminary) [2025] NSWSC 197

Hearing dates:

9 April 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Common Law

Before:

Davies J

Decision:

The Court orders that:

1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act):

a.   The Court appoints two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of 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.   The Court directs the Defendant to attend those examinations.

2. Pursuant to ss 130 and 131 of the Act, the Defendant is subject to an interim order for the extension of his status as a forensic patient commencing on 11 May 2025 for a period of three (3) months.

3.   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 – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – forensic patient – whether unacceptable risk of causing serious harm if status as forensic patient ceases – where defendant continues to deny he suffers from mental health issues and was non-complaint with pharmacological treatment – where defendant has a history of violence – risk posed cannot be managed by less restrictive means – interim extension order granted

Legislation Cited:

Crimes Act 1900 (NSW) s 35

Crimes (High Risk Offenders) Act 2006 (NSW)

Mental Health Act 2007 (NSW) s 14

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 36, 86, 121, 122, 124, 125, 126, 127, 130, 131, 135

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041

Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144

Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993

Attorney-General of New South Wales v Kereopa [2017] NSWSC 411

Attorney-General of New South Wales v Randall (Preliminary) [2023] NSWSC 226

Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859

Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119

R v Presser [1958] VR 45

Re J (No 2) [2011] NSWSC 1224

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Attorney General for New South Wales (Plaintiff)
Yasin Cullu (Defendant)

Representation:

Counsel:
M Varley & E ten Kate (Plaintiff)
N Evans (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2025/56192

Publication restriction:

Nil

Judgment

1. By a summons filed 12 February 2025, the Attorney General for New South Wales seeks an extension order in respect of the defendant’s status as a forensic patient for a period of two years pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the “MHCIFP Act”). The defendant’s limiting term expires on 10 May 2025. For that reason, the Attorney General initially seeks an interim extension pursuant to s 130 of the MHCIFP Act for a period of three months.

Legal principles

2. The MHCIFP Act came into force on 27 March 2021 superseding (relevantly) the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the former Act”). The principles governing the equivalent provisions in the former Act remain relevant and applicable to Pt 6 of the MHCIFP Act: Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 at [19]. In addition, assistance may be gained from authorities on applications made under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHROA”): Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [9].

3. Section 122 of the MHCIFP Act provides that a forensic patient can be made the subject of an extension order under Pt 6 of the Act if and only if this Court is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and the risk cannot be adequately managed by other less restrictive means. The term “serious harm” is not defined in the MHCIFP Act, but its meaning was discussed by White J in Re J (No. 2) [2011] NSWSC 1224 in the context of s 14 of the Mental Health Act 2007 (NSW). What constitutes serious harm is broader than what is defined in the CHROA as a “serious sex offence” or a “serious violence offence”. In terms of physical harm it does not require a concern about harm to the level of grievous bodily harm but it contemplates something more than would satisfy the minimum threshold for actual bodily harm: Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [16]; Attorney-General of New South Wales v Randall (Preliminary) [2023] NSWSC 226 at [27].

4. Section 125 sets out the requirements for supporting documentation which must accompany an application, and that documentation must include a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner. That report must be one which assesses the risk of the forensic patient causing serious harm to others, and which addresses the need for ongoing management of the patient as a forensic patient, and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.

5. Section 130 provides for the making of an interim extension order if it appears that the limiting term to which the forensic patient is subject will expire before the proceedings are determined and the Court is of the view that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

6. Section 126(5) provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must make orders appointing two qualified psychiatrists, or two registered psychologists, or two registered medical practitioners, or any combination of two such persons, to conduct separate examinations of the forensic patient and provide reports to the Court on the results of those examinations, and directing the forensic patient to attend those examinations.

7. Section 127(2) sets out the matters to which regard must be had by the Court in determining whether or not to make an extension order, in addition to any other matter the Court considers relevant.

8. The task of the Court at the preliminary stage where an interim extension order is sought is well known from the authorities; it is similar to the prima facie test applied by magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993; and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

The defendant's background

9. The defendant is a 41 year old man who is the second of three children to his Turkish parents. He was born in Australia. He is divorced and has no children. He reported a happy childhood with lots of friends and good relationships with his family. He denied any abuse or neglect as a child.

10. He reported that he struggled with school but is literate, although his numeracy is poor. He was suspended from school and then expelled in year 9. Since leaving school he has worked casually as a labourer and a truck driver but only intermittently.

11. His criminal record commenced in 2002 with two sets of driving offences and resisting an officer in the execution of his duty. In 2009 he was convicted of induce/attempt to dispensation of prescription. In 2010 he was convicted on a number of occasions of contravening apprehended violence orders.

12. In 2014 he was convicted of common assault and sentenced to ten months' imprisonment with a non-parole period of five months. The assault was an unprovoked attack on a person training at South Sydney Juniors gymnasium. The defendant struck the victim in the back with his knee and forced him to the ground. He then held him down and punched the victim numerous times to the side of his face.

13. In 2015 he was convicted of assault occasioning actual bodily harm where he received a 12 months' sentence with a non-parole period of five months. This offence involved an assault on an employee of the Fitness First Gym at Randwick where the defendant was a member. The employee shook the defendant’s hand as he entered the gym and the defendant then proceeded to punch the employee in the face with his other hand. The assault resulted in a two centimetre laceration to the victim’s face.

14. In 2018 he received an 18 months' Intensive Correction Order for knowingly driving a vehicle in a manner menacing others, common assault and being armed with intent to commit an indictable offence. At the same time he was fined for a number of less serious offences. The offending took place over a two day period. It started at a container services centre where the victim, a forklift driver at the centre, asked the defendant to move his truck which was blocking the roadway where vehicles exit from the premises. The defendant threatened the victim with a metal pole by swinging it at him.

15. The following day, over an eight hour period, the defendant engaged in intimidatory behaviour towards the same victim. He attended again at the centre, despite being banned from attending as a result of his behaviour the previous day, and menaced the victim by the use of the defendant’s vehicle. Later that day the defendant returned again to the centre to find the victim. Some little time later when the victim was driving his vehicle on a public road, the defendant commenced to follow him. The defendant’s driving was so erratic in trying to tail the defendant that police in the area were alerted. The defendant was pulled over and arrested by police. He was found to have a 35cm long knife in his possession. He refused to submit to a breath test and an oral fluid test.

The index offence

16. On 12 November 2022 the defendant was charged with recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) (“the index offence”). The victim of the offence was a man previously unknown to the defendant who was a fellow member of the Snap Fitness Gym in Mascot.

17. On 4 November 2022, the victim was resting in the dumbbell area of the gym when, without warning, the defendant kicked the victim in the face with significant force. The attack was unprovoked. After the defendant had assaulted the victim, the defendant said to an employee of Snap Fitness, “make sure he knows his place”.

18. As a result of the attack the victim suffered a broken nose, multiple fractures to the bones that make up the floor and inner wall of the eye socket, a cut above the left eye and swelling of the face. The injury to the inner wall of the victim’s eye socket required surgical intervention and the use of a metal plate to bring the eye and bones back into position.

19. The defendant was arrested on 11 November 2022 and taken into custody. Whilst in custody, he assaulted another inmate and he was placed into segregated custody. On 22 March 2023 he was admitted to the Mental Health Screening Unit at the Metropolitan Remand and Reception Centre (MRRC) under the care of Dr Andrew White. He was thought disordered. He refused any medication and refused to accept that he was suffering from a mental illness.

20. On 5 April 2023 an order was made pursuant to s 86(4) of the MHCIFP Act transferring the defendant to a mental health facility. On 21 April 2023 he was transferred to the Long Bay Hospital Mental Health Unit where he remained thought disordered, uncooperative, guarded and paranoid.

21. On 10 August 2023 the Mental Health Review Tribunal (MHRT) made a Forensic Community Treatment Order (FCTO) for 12 months.

22. On 3 April 2024 Dr Adam Martin, a forensic psychiatrist, provided a report to address whether the defendant was fit to stand trial and to enter a plea, and to assess whether community based or inpatient treatment was appropriate. Dr Martin reported that the defendant’s level of acute psychosis had fluctuated but he had remained without insight, with the vast majority of clinical entries in the documents reviewed by Dr Martin noting thought disorder and lack of insight.

23. Dr Martin considered that the defendant was highly likely to be found unfit by the Court and was unlikely to become fit within the next 12 months to stand trial or enter a plea.

24. In relation to the defendant’s treatment, Dr Martin said this:

In my opinion, community-based treatment represents a significant risk to himself and the community. There are very significant risks of violence and misadventure. Multiple clinical entries document poor insight and lack of understanding for the need for anti-psychotic treatment. He appears to have 'acted out' violently in the context of psychotic illness in the community. I would not support treatment in the community at this time until he has undertaken a rigorous psychiatric assessment in an appropriate forensic facility, and where his forensic needs can be appropriately managed over a lengthy period. In my view, the appropriate setting for management would be in a secure environment with access to forensic clinicians. If he were to be placed in a community hospital, there would be a significant chance of premature discharge into the community. Mr Cullu has significant forensic needs. In my view, an appropriate setting would be the Forensic Hospital at Malabar, based on the information made available to me at this time.

25. The defendant was examined and assessed by Dr Gerald Chew on 5 April 2024 for the purpose of assessing his fitness to stand trial for the index offence. Dr Chew said that the defendant had a primary diagnosis of schizophrenia. He had poor insight into his illness and was being treated involuntarily under an FCTO and long-acting depot medication. Dr Chew did not think he met the minimum Presser (R v Presser [1958] VR 45) standard as codified in s 36 of the MHCIFP Act. Dr Chew said the defendant only had a superficial understanding of matters and was unable to provide a coherent account of his offending. He considered that community treatment was safe and least restrictive. He did not think that the defendant required inpatient psychiatric treatment at that stage.

26. On 8 April 2024, Williams DCJ found that the defendant was unfit to be tried. His Honour found that the defendant would not become fit to be tried within 12 months of the finding of unfitness.

27. On 22 July 2024, following a special hearing, Pickering DCJ found that on the limited evidence available the defendant had committed the index offence. His Honour imposed a limiting term of two years and six months which commenced on 11 November 2022 and expires on 10 May 2025. When imposing the limiting term, his Honour said that it was a random attack which involved a significant aspect of violence, that the defendant had a significant criminal history and, more concerningly, one that involved violence, that the defendant found it difficult to “self-treat himself” in the community, and that an important feature of the sentencing exercise was that the defendant’s condition brought aspects of community safety into play.

Subsequent assessments

28. On 1 October 2024 Dr Andrew White, a senior career medical officer at Custodial Mental Health prepared an assessment of the defendant. In that report, Dr White said this:

He was admitted to the MHSU, under my care, on 22 March 2023. He refused to discuss his psychiatric history, saying it was "all in the past", and said "lest we forget" repeatedly. He was preoccupied with having plates and pins in his forearms that had been fractured nine months previously but could not explain what his concerns were. He denied any hallucinations or other psychotic symptoms. He was a guarded and evasive historian who was thought disordered and struggled to explain his concerns. He refused any medication and refused to accept that he was suffering from a mental illness. During his time in the MHSU he continued to struggle to communicate. He talked of needing more privileges but was repeatedly unable to say what privileges he was requesting. He repeatedly requested to move to 'a new facility' in Canberra but could not say which facility or what type of facility he was referring to. He voiced concerns about his food being tampered with and was noted to talk to himself, but he refused to discuss this with the treating team. Ongoing attempts to engage him in voluntary treatment were unsuccessful and so he was referred to Long Bay Hospital Mental Health Unit (LBH MHU).

He was admitted to LBH MHU on 21 April 2023. He continued to refuse treatment and was brought under Section 86 of the MHCIFPA to allow involuntary treatment. he remained thought disordered, unco-operative, guarded and paranoid. He was commenced on zuclopenthixol which was increased over time to 400mg fortnightly. In May 2023 he divulged more of his delusional thinking, talking of his brain floating on water with electrical signals being passed through and concerns about a spark going out and not being able to be restarted. He became preoccupied with this and repeated it in multiple medical reviews. He developed akathisia and was commenced on propranolol with some effect.

29. Dr White noted the FTCO made on 10 August 2023 and noted that the defendant was discharged from LBH MHU to the 13 wing mental health stepdown area. During that time he presented as largely in remission of his positive symptoms with some fluctuations of mood and prominent negative symptoms. His insight remained poor but he remained adherent to medication under the FCTO.

30. Dr White said there had been some improvement in his presentation up to March 2024. The defendant still denied any psychotic symptoms. He remained superficial in engagement, had a paucity of spontaneous speech and poverty of content of thought.

31. Dr White noted that in May 2014 he had assaulted another inmate in custody. When he was released from gaol he was admitted to Concord Hospital. At the hospital the doctors obtained information from his family about symptoms consistent with schizophrenia including personality changes, being suspicious and having outburst of aggression. It was ascertained he had been admitted to Prince of Wales Hospital in 2009 where he was treated with depot medication but had no treatment since that time.

32. Dr White noted that the defendant’s insight was limited and although he was complying with his medication the defendant did not think it was necessary. Dr White diagnosed him as suffering from schizophrenia. He thought he had been affected by the illness for about 15 years but it had generally been untreated. The illness had been characterised by episodes of thought disorder and disorganisation and had been associated with acts of violence. He had a history of non-engagement with mental health services and non-adherence with medication.

33. Dr White carried out a Violence Risk Assessment. The defendant had four of the ten historical risk factors for future violence. Overall, Dr White classified as having a moderate loading of historical risk factors for future violence. In terms of dynamic risk factors he had one of the five risk factors associated with future violence. He had ongoing problems with insight.

29. Dr White said it was the opinion of the treating team that the defendant would benefit from admission to a psychiatric facility. His illness and associated risks would be manageable in a medium secure setting. He said it was the opinion of the treating team that making him subject to a FCTO was the least restrictive form of care that was available and that was likely to be successful.

30. The report prepared for the purposes of s 135(b) of the MHCIFP Act was that of Dr Anna Farrar, a forensic psychiatrist, dated 2 December 2024. Dr Farrar’s opinion was based on a review of a large number of documents together with the letter of instructions from the Crown Solicitors Office. The defendant did not consent to a psychiatric interview with Dr Farrar.

31. Dr Farrar considered that the defendant met the DSM-5 diagnostic criteria for chronic schizophrenia and she considered that his symptoms (thought disorder and problems with insight) were permanent.

32. Dr Farrar considered the inconsistent information provided by the defendant to various doctors and other persons concerning his consumption of illicit substances. He denied to Dr White ever using illicit substances, and made similar denials to Dr Chew and to Dr David Greenburg in August 2014. However, in other documents including OIMS case notes, an Intensive Correction Order Assessment Report and a discharge summary in 2009, the defendant admitted to using cannabis, methamphetamine, cocaine, alcohol, testosterone and human growth hormones. In that regard, Dr Farrar diagnosed him with polysubstance use.

33. Dr Farrar considered that he posed a moderate to high risk of causing serious harm to others if he ceased to be a forensic patient. She said it would be appropriate to manage that risk as a forensic patient because it would allow for possible transfer to a Medium Secure Unit for multidisciplinary forensic mental health treatment in an inpatient environment, oversight by the MHRT and independent risk assessment by the NSW Community Forensic Mental Health Service prior to community release and during community placement. She considered that there were no less restrictive means than remaining as a forensic patient considering his non-compliance with antipsychotic medication and community treatment. In her opinion, an appropriate period of time for extension of the limiting term was two years to allow for ongoing specialist forensic mental health treatment, including possible transfer to a Medium Secure Unit and conditional release.

The MHRT

39. On 11 October 2024 the defendant was reviewed for the first time by the MHRT. The MHRT ordered that the defendant be detained at either at either MRRC or Long Bay Correctional Complex for care and treatment. It found that a FCTO would be necessary and the least restrictive form of available care for the defendant in the community.

40. On 10 January 2025 the defendant was again reviewed by the MHRT. In its reasons for its decision of 16 January 2025 the MHRT noted the report of Dr White of 1 October 2024 and a report from Nisha Bhardwaj, a clinical nurse consultant (forensic patients) dated 13 January 2025. Ms Bhardwaj noted that the defendant had a diagnosis of schizophrenia. She reported that there had been an improvement in his presentation in the Hamden Unit and that he become more reactive in effect. She also noted that he denied any psychotic symptoms, remained superficial in engagement, and had a paucity of spontaneous speech and poverty of content of thought. She reported that the defendant was happy with his current medication and said he would continue to take it, but he believed it was unnecessary as he did not have a mental illness. Ms Bhardwaj reported that he had a history of non-engagement with mental health services and non-adherence to medication, and he would benefit from admission to the Forensic Hospital.

41. The Tribunal noted also that Dr Martin Reading, a psychiatrist, participated in the hearing, and he agreed with Ms Bhardwaj’s report. He told the Tribunal that he was of the view that the FTCO should continue as part of the defendant’s transition into the community.

42. The MHRT ordered that he be transferred to and detained at the Forensic Hospital until a bed became available. While waiting for a bed to be available, the MHRT ordered that the defendant be detained at either MRRC or the Long Bay Correctional Complex for care and treatment.

Consideration

43. The defendant does not oppose the making of an interim order for a period of three months and does not oppose an order appointing two qualified psychiatrists or psychologists to conduct separate examinations of the defendant and to furnish reports to the Court. It is still necessary for the Court to make the assessment in s 130 of the MHCIFP Act.

44. The parties agree, and I accept, that the requirements of ss 124 and 125 have been satisfied.

45. The question of whether the defendant poses an unacceptable risk is to be assessed on the assumption that he is not a forensic patient nor an involuntary patient. The risk is therefore to be assessed on the basis that the defendant ceased to be a forensic patient and was released into the community at the end of his extension order without any oversight by the courts or the Tribunal: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40]. The unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71].

46. In my opinion, two things emerging clearly from the evidence establish that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. The first is his continued denial that he suffers from mental health issues and his view that he does not need any pharmacological treatment as a result. This, of course, is his lack of insight referred to by many of the doctors. Although he now says he is content to accept the treatment that is being given to him that must be seen in the context of his involuntary status as a forensic patient. The evidence from the time before he was a forensic patient is that he was non-compliant with any pharmacological treatment.

47. The second matter is his history of violence. Two of the gym incidents (the index offending and the assault in 2014 at South Sydney Juniors) were entirely unprovoked. There is apparently some doubt about whether the defendant asserts that the incident at Fitness First at Randwick was provoked. However, even if such assertion by the defendant is accepted, neither that nor the request by the victim at the container centre alters the fact that the defendant is liable to erupt in violence on the flimsiest of pretexts. I note also a report of Dr White of 17 April 2023 where he says:

In recent years he has had several instances of unprovoked assaults both in custody and in the community.

48. The history of violence demonstrates that there is a strong likelihood of the risk to others occurring. The extent of injuries suffered by the victim of the index offence and the potential for serious injury from the two other gym assaults and the threat with the metal pole to the victim at the container centre all point to the gravity of the risk that might eventuate from future violence. In the defendant’s case the risk is likely to eventuate and the risk is likely to involve severe harm to the victims.

49. Further, as noted above, the assessments carried out by both Dr White and Dr Farrar demonstrate that the defendant poses a moderate to high risk of causing serious harm to others if he ceased to be a forensic patient.

50. Dr Farrar considered that there were no less restrictive means than remaining as a forensic patient, considering his non-compliance in the community with antipsychotic medication and community treatment. In particular, Dr Farrar considered it would not be appropriate to manage the defendant’s risk of causing serious harm to others through the imposition of a Community Treatment Order (CTO) alone, because he requires additional restrictions and supports. She said the defendant would be at risk of discharge from the CTO if he did not engage in treatment.

51. Dr Farrer was unable to provide an opinion as to whether it would be possible to classify the defendant as an involuntary patient because he did not consent to an assessment. However, I note Adamson J’s comparison of the regimes that deal with forensic patients and involuntary patients, as extracted by Yehia  J in Attorney-General of New South Walers v Randall (Preliminary) [2023] NSWSC 226 as follows:

[32] Justice Adamson, in Attorney-General (NSW) v Doolan (by his tutor Jennifer Thompson (No 2)) [2016] NSWSC 107 noted at [96]:

“… I consider that the question whether “means” are more or less restrictive is to be judged by 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.”

[33] Her Honour recognised that one such “less restrictive means” of managing the defendant’s risk is their classification as an involuntary patient under the Mental Health Act. Her Honour noted four key differences between the regime that deals with forensic patients and the (less restrictive) regime that deals with involuntary patients. They are as follows:

(1)   Detention: Forensic patients remain in detention unless certain criteria for release are satisfied, while involuntary patients are not detained unless they are mentally ill or mentally disordered in which case the maximum period of detention is three months following an inquiry (see [109]-[110]);

(2)   Release from detention: A forensic patient cannot be released without an independent expert risk assessment report, while an involuntary patient must be discharged by the Tribunal “if no longer satisfied on the balance of probabilities that the patient is mentally ill”. No independent risk assessment report is required (see [111]-[113]);

(3)   Imposition of conditions while patient is living in the community: The Tribunal may impose conditions for a forensic patients’ accommodation, treatment, medication, conduct, case management, and drug-testing, while CTOs for involuntary patients (outlined in more detail below) relate only to the person’s treatment (see [114]-[116]);

(4)   Consequences of breach of conditions: If a forensic patient breaches a condition of their release, they can be recalled and detained by the Tribunal, while involuntary patients are subject to the oversight of the director of community treatment at the relevant mental health facility (see [117]-[118]).

52. Bearing in mind those differences, the defendant’s risk could not be adequately managed as an involuntary patient.

53. Dr Chew’s opinion that the least restrictive means of managing the defendant’s condition with a CTO seems to me to be inconsistent with what Drs White, Martin and Farrar opined. His opinion also does not seem to me to take account of the defendant’s lack of insight, even though Dr Chew noted that the defendant denied having a mental illness in the face of Dr Chew’s diagnosis of schizophrenia. His opinion does not appear to take account the defendant’s refusal until he came into custody of being compliant with medication which has been prescribed for him.

54. The task at a preliminary hearing is to determine whether the matters alleged in the supporting documentation would justify the making of the extension order, not to assess the likelihood of the court making such an order. In other words, would it be open to the Court if it accepts the matters alleged in the documentation to make an order? It can be taken that Dr Farrar understands the difference in the regimes identified by Adamson J. Drs Farrar, White and Martin all consider that the least restrictive means of managing the defendant’s risk is that he remains a forensic patient.

55. In those circumstances, if the matters alleged in the documentation are proved both as to the defendant posing an unacceptable risk of causing serious harm, and of there being no less restrictive means of managing the defendant’s risks than his remaining as a forensic patient, the making of an order under s 122 would be justified.

Orders

56. Accordingly, I make the following orders:

1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW):

a.   The Court appoints two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of 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.   The Court directs the Defendant to attend those examinations.

1. Pursuant to ss 130 and 131 of the Act, the Defendant is subject to an interim order for the extension of his status as a forensic patient commencing on 11 May 2025 for a period of three (3) months.

2. 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.

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Decision last updated: 16 April 2025