Attorney General for NSW v Beryalay (by his tutor Ramjan) (Preliminary)

[2025] NSWSC 1022

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for NSW v Beryalay (by his tutor Ramjan) (Preliminary) [2025] NSWSC 1022

Hearing dates:

3 September 2025

Date of orders:

8 September 2025

Decision date:

08 September 2025

Jurisdiction:

Common Law

Before:

Wright J

Decision:

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

(a)   Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of any two such persons) be appointed to conduct separate examinations of the defendant and provide reports to the Supreme Court on the results of those examinations by a date to be fixed; and

(b)   The defendant is directed to attend those examinations.

(2) Pursuant to section 130 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the existing extension order on 21 September 2025 for a period of three months.

(3)    The Registrar is to notify the Mental Health Review Tribunal of these orders.

Catchwords:

MENTAL HEALTH – forensic patient – extension of status as a forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – where defendant does not oppose making of order – orders for examination made – interim extension order made

Legislation Cited:

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 72, 121, 123-128, 130, 131

Cases Cited:

Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252

Attorney General of New South Wales v Beryalay(by his tutor Johnson) (Preliminary) [2022] NSWSC 852

Attorney General of New South Wales v Beryalay(by his tutor Johnson) (Final) [2022] NSWSC 1274

Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816

Attorney General of New South Wales v SK (a pseudonym) (by his tutor Dr Katherine Pavlidis Johnson) (Preliminary) [2025] NSWSC 704

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Plaintiff)
Mustaba Beryalay (Defendant)

Representation:

Counsel:
J Wilcox (Plaintiff)
M Valentin (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Karnib Saddik Law Firm (Defendant)

File Number(s):

2025/00240399

JUDGMENT

1. By a summons filed on 23 June 2025, the Attorney General for New South Wales, the plaintiff, seeks final, interlocutory, interim and ancillary orders against Mustaba Beryalay, the defendant, in relation to extending his status as a forensic patient pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). Ms Barbara Ramjan has consented to act as the defendant's tutor in these proceedings.

2. The defendant's status as a forensic patient arises originally from: (a) a finding by Sides QC DCJ in the District Court on 17 April 2013 that the defendant was unfit to be tried for the offences of shooting at a person with intent to commit murder and in the alternative causing grievous bodily harm with intent to cause such harm; (b) the verdict at the special hearing on 24 February 2014 that on the limited evidence available the defendant committed the offence of causing grievous bodily harm with intent; and, (c) the limiting term imposed in respect of that offence which expired on 11 April 2019.

3. The defendant's status as a forensic patient was extended by orders made by Ierace J on 12 March 2019 (see Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252), Wright J on 1 July 2019 (see Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816), by Walton J on 15 June 2022 (see Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Preliminary) [2022] NSWSC 852) and by Chen J on 21 September 2022 (see Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274). If the defendant's status as a forensic patient is not extended again, he will cease to be a forensic patient on 21 September 2025.

The summons

4. The final order sought, in prayer 3 of the summons, is that pursuant to ss 121, 127(1)(a) and 128 of the MHCIFP Act the defendant’s status as a forensic patient be extended for a further period of three years from the date of the order.

5. The plaintiff also seeks interlocutory and interim orders in the summons as follows:

“Interlocutory Relief

1. An order pursuant to section 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 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. Directing the Defendant to attend those examinations.

Interim Relief

2. 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 upon the expiry of his current extension order on 21 September 2025, for a period of three months thereafter.”

6. The ancillary relief sought in prayer 4 of the summons has already been granted.

7. The hearing before me on 3 September 2025 concerned only the interlocutory and interim orders sought in prayers 1 and 2.

Statutory scheme

8. Under s 72(1)(b) of the MHCIFP Act, a “forensic patient” includes a person:

1. for whom a limiting term has been nominated after a special hearing;

2. who is subsequently subject to an extension order; and

3. who is detained in a mental health facility, correctional centre, detention centre or other place.

9. There is no dispute that the defendant is a forensic patient within s 72(1)(b) of the MHCIFP Act and is the subject of an existing extension order, within s 124(1)(b). On the evidence before me, I am satisfied that the defendant is a forensic patient to whom the MHCIFP Act applies.

10. The court’s power to make orders in relation to the extension of a person’s status as a forensic patient is governed by Pt 6 of the MHCIFP Act, ss 121-144. The most pertinent provisions for the purposes of the present application are as follows.

11. Section 121 empowers the Court to make an order for the extension of a person’s status as a forensic patient. Such an order can be made, if and only if, the 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: s 122(1)(a) and (b).

12. The formal requirements and prerequisites for making an application for an extension of a person’s status as a forensic patient are set out in ss 123-126. There is no dispute in this case that these requirements and prerequisites have been met and, having regard to all the material before the Court, I am satisfied that this is so. Consequently, it is not necessary to deal with those matters in any detail in this judgment.

13. Under s 126(5), if, following a 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:

1. 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: and

2. directing the forensic patient to attend those examinations.

14. Under s 127, in determining whether to make an extension order or to dismiss an application, the Court must have regard, where relevant, to the non-exclusive list of matters in s 127(2)(a)-(i).

15. If a forensic patient’s status as such is extended, the Court is required to notify the Mental Health Review Tribunal (MHRT): s 127(3).

16. An extension order may be made for a maximum of five years under s 128(1)(b). Section 128(2) provides that nothing in that section prevents the Court from making a second or subsequent extension order against the same forensic patient, as is sought in the present case.

17. Under s 130, the Court may make an order for the interim extension of a person’s status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:

“(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.”

18. It was not in dispute that the defendant’s current extension order would expire before these proceedings are determined. Given the practical requirements for listing matters such as the present for final hearing and the time likely to be taken to have the defendant examined and reports prepared, I am satisfied that the condition in s 130(a) is met in this case.

19. As to the condition for making an interim extension order in s 130(b), it can be noted that this condition is the same as the test in s 126(5) in relation to whether examination orders must be made. Accordingly, those two issues can be considered together.

20. Finally, an interim extension order or orders may be made for a total period of up to three months: s 131(2).

Do the matters alleged in the supporting documentation, if proved, justify the making of an extension order?

Evidence

21. For the purposes of considering the application for interlocutory and interim relief, the plaintiff relied on the affidavits of Dylan Swanborough affirmed on 20 June 2025 and 21 July 2025 together with the exhibits and annexures to those affidavits. This constitutes the “supporting documentation” referred to in ss 126(5) and 130(b) of the MHCIFP Act.

Statutory provisions and relevant principles

22. By virtue of ss 126(5) and 130(b) of the MHCIFP Act, the Court is required, in effect, to assume that the matters alleged in the supporting documentation have been proved, and on that basis consider whether making an extension order would be justified. Given the terms of s 122 of the MHCIFP Act, the making of an extension order would be justified where the Court is satisfied, to a high degree of probability, that:

1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and,

2. the risk cannot be adequately managed by other less restrictive means.

23. Under s 127(2) of the MHCIFP Act, in determining whether or not to make an extension order, the Court must have regard to the matters set out in pars (a) to (i) of that subsection. Those matters are:

“(a) the safety of the community,

(b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,

(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(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 Communities and Justice 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 the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),

(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.”

24. The principles to be applied in relation to the consideration of the two issues which arise under s 122 and whether an extension order would be justified are well established and were not in dispute in the present case. I respectfully adopt, and have applied, the statement of the relevant principles recently provided by N Adams J in Attorney General of New South Wales v SK (a pseudonym) (by his tutor Dr Katherine Pavlidis Johnson) (Preliminary) [2025] NSWSC 704 at [13] to [36]. It is not necessary to repeat her Honour’s statement of the principles here.

Consideration

25. The parties provided to the Court a joint statement of facts and issues in accordance with par 26(i) of Supreme Court Practice Note SC CL 12.

26. Furthermore, the defendant did not oppose, and indeed expressly consented to, the making of the interim and preliminary relief sought. Accordingly, the consideration of the relevant factors can be dealt with more briefly than might otherwise be the case.

27. The background to the present matter is set out in Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252, Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816, Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Preliminary) [2022] NSWSC 852 and Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274. It is not necessary to repeat all of that material here but this judgment should be read in conjunction with those earlier judgments concerning the defendant’s status as a forensic patient. For the purposes of the present application it is sufficient to note more specifically the defendant’s background set out by Ierace J in the 2019 preliminary judgment, [2019] NSWSC 252 at [5] to [13] and the matters recorded by Chen J in the 2020 final judgment, [2022] NSWSC 1274 at [7] to [12] and [38] to [89]. I shall focus on the most pertinent developments in the defendant’s circumstances since the 2022 final judgment.

28. Since the extension order made by Chen J on 21 September 2022, the MHRT has dealt with and reviewed the defendant on numerous occasions. On 23 August 2022, the MHRT had reinstated the defendant’s Conditional Release Order. However, because of breaches of that order and further offences since September 2022, some of which were dealt with under section 14(1)(b) of the MHCIF Act and others of which were dealt with by way of a fine, a community corrections order and licence disqualification, the Tribunal has ordered on various occasions that the defendant be, or remain, detained at Liverpool Hospital. While so detained the defendant has been granted supervised and unsupervised leave during which he has absconded or engaged in some of the offending already referred to. The defendant is currently detained at Liverpool Hospital.

29. The defendant also faces a number of outstanding charges relating to driving, theft and property offences alleged to have arisen out of a series of incidents in early January 2025 in which the complainant’s wallet, car keys and car were stolen. It is alleged that the defendant drove the stolen vehicle and swapped the registration plates of that vehicle with plates of two other parked cars in a car park as well as making unauthorised bank transactions on the complainant’s accounts at about this time. Those charges are listed on 21 November 2025 at Liverpool local Court.

30. More recently on 16 April 2025, a new NDIS plan was approved for the defendant providing funding for support staff seven days a week, support coordination, occupational therapy and behaviour support and he has commenced receiving such support.

31. Associate Professor Rajan Darjee, consultant forensic psychiatrist, interviewed the defendant via audiovisual link on 5 March 2025 for about two hours. Prof Darjee prepared a report dated 1 April 2025.

32. Prof Darjee noted that the defendant was diagnosed with mild intellectual disability as a child and teenager which progressed to mild-to-moderate as an adult. The professor confirmed the defendant’s diagnoses of antisocial personality disorder, conduct disorder, frontal lobe syndrome, attention deficit hyperactivity disorder, complex post-traumatic stress disorder, depression and substance use disorder (cannabis, methamphetamine, heroin and alprazolam). In Prof Darjee’s opinion, these conditions are likely to continue indefinitely although the complex post-traumatic stress disorder may fluctuate and improve depending on treatment. In addition, these conditions are said to underpin the defendant’s emotional dysregulation, inability to think things through, problems with relationships and vulnerability to influence.

33. In Prof Darjee’s opinion, however, the defendant does not have a major mental illness, such as psychosis or major mood disorder, and therefore does not have a “mental illness” and is not a “mentally ill person” within the meaning of the Mental Health Act 2007 (NSW).

34. The professor applied the Historical Clinical Risk-20 version 3 (HCR – 20 v3) tool to assess the defendant historical dynamic risk factors for violence under two different potential future conditions: (a) remaining a forensic patient; and, (b) not being a forensic patient. It was concluded that if the defendant remained a forensic patient there was a high likelihood of future violence, moderate risk of serious harm and low to moderate imminent risk of further violence. If the defendant were no longer a forensic patient, the assessment was that he had a high likelihood of further violence, a high risk of serious harm and a highly imminent risk of further violence. In particular, it was said that the defendant “clearly requires interventions, supports, monitoring and supervision well above the level usually required to manage people who have committed violent offences and people for forensic disability needs”. The professor summarised his conclusion concerning the risk posed by the defendant as follows:

“Overall, he poses a high risk of serious harm which could happen at any time if he was not a forensic patient. As a forensic patient there is still a high risk of violence but the risk is less imminent and he is less likely to cause serious harm.

…

As set out above, he requires a high level of risk management to prevent further violent offending, and so he should remain a forensic patient and needs an extension order.”

35. Prof Darjee identified the most urgent need for the defendant was finding suitable accommodation with the right level of support to address both his disability needs and to manage the forensic risk aspects. It was noted that the psychiatric hospital and prison were inappropriate settings to try and provide care and rehabilitation for the defendant, although they were the only options available for containment when risk could not be managed in the community. The professor was of the opinion that “being stuck in hospital is probably counter-productive at present”.

36. It was noted that NDIS coordination would help with collaboration between support services but this would not be with a primary focus on violence prevention. Furthermore, preventing substance misuse was seen by the professor as an important intervention as well as psychopharmacological options, such as stimulant or non-stimulant medication for ADHD, low-dose atypical antipsychotics for arousal and emotional instability, and reviewing his antidepressant treatment if done by a specialist with experience working with forensic disability patients.

35. Prof Darjee summarised the situation as follows:

“Given the ongoing difficulties with his management and further charges over the last three years, it is unlikely that he will get to the stage where he is ready to be managed without being a forensic patient within the next five years. However, it is possible that that may happen. I also think it is important to give him hope and instil optimism. Therefore, in my view a three year order seems to strike the right balance.”

38. The professor did not consider that continuing existing care without being a forensic patient, his classification as an involuntary patient under the Mental Health Act, a community treatment order, a guardianship order or any other less restrictive means could adequately manage the risk of serious harm to others posed by the defendant.

39. In his supplementary report of 12 April 2023, Prof Darjee expanded on his reasons for considering that any extension order should be for a period of three years.

40. In my view, the matters alleged in Prof Darjee’s reports provided under s 125(b) would, if proved, substantially support finding to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and the risk cannot be adequately managed by other less restrictive means and, thus, the making of an order extending the defendant’s status as a forensic patient would be justified.

41. In addition, assuming the matters alleged in the supporting documentation including his previous criminal history and offending and non-compliance with MHRT orders since September 2022 are proved, the safety of the community would clearly support the conclusion that the making of an extension order was justified.

42. Furthermore, the other matters referred to in s 127(2), where relevant, have been identified above or in the earlier judgements relating to the defendant’s status as a forensic patient being extended and, where those matters continue to be significant given the defendant’s present circumstances, I have taken them into account. They also support the conclusion that, assuming those matters are proved, an extension order would be justified.

43. There was no matter which was raised by the parties or which arose on the evidence which indicated that there would be any significant basis for not accepting that, assuming that the matters alleged in the supporting documentation were proved, making an extension order would not be justified.

Should orders be made under ss 126(5) and 130?

44. For these reasons I am satisfied that the condition in s 126(5) has been satisfied and thus examination orders under s 126(5) must be made.

45. As to whether an interim extension order should be made under s 130, although I am satisfied that the two conditions in s 130 have been satisfied, the Court still has a residual discretion as to whether to make such an interim order. Neither party identified any consideration which would mean that it was appropriate to refuse to make an interim extension order and there did not appear to me to be any such considerations. Accordingly, I propose to make the interim extension order sought by the plaintiff.

Orders

46. For these reasons, the orders of the Court are:

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

1. Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of any two such persons) be appointed to conduct separate examinations of the defendant and provide reports to the Supreme Court on the results of those examinations by a date to be fixed; and

2. The defendant is directed to attend those examinations.

2. Pursuant to section 130 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the existing extension order on 21 September 2025 for a period of three months.

3. The Registrar is to notify the Mental Health Review Tribunal of these orders.

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Decision last updated: 08 September 2025