Minister for Home Affairs v Pender (Preliminary)

[2021] NSWSC 921

Supreme Court

New South Wales

Medium Neutral Citation:

Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921

Hearing dates:

23 July 2021

Date of orders:

28 July 2021

Decision date:

28 July 2021

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

See [81].

Catchwords:

HIGH RISK OFFENDERS – Offenders – Convicted Commonwealth terrorist offender – Application for appointment of experts under the Criminal Code Act 1995 (Cth)

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal CodeAct 1995 (Cth)

Cases Cited:

R v Pender [2019] NSWSC 1814

State of New South Wales v Osman [2020] NSWSC 1646

Category:

Procedural rulings

Parties:

Minister for Home Affairs (Plaintiff)
Blake Nicholas Pender (Defendant)

Representation:

Counsel:
P Herzfeld SC with Z Heger (Plaintiff)
M Johnston SC with G Lewer and D Bhutani (Defendant)

Solicitors:
Australian Government Solicitor (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2021/192377

Publication restriction:

None

Judgment

1. Pursuant to s 105A.7(1) of the Criminal CodeAct 1995 (Cth) (“Criminal Code”), the plaintiff, the Minister for Home Affairs, seeks that the defendant, Blake Nicholas Pender, be subject to a continuing detention order (“CDO”) for a period of 3 years.

2. The defendant is currently in custody serving a sentence in respect of two offences being:

1. An offence contrary to s 101.4(1) of the Criminal Code of knowingly possessing a thing (a knife) connected with terrorism; and

2. An offence contrary to s 326(1)(b) of the Crimes Act 1900 (NSW), being threatening a judicial officer.

3. The defendant is due to be released on 13 September 2021.

4. This is the judgment in respect of the plaintiff’s claim for interim relief following the preliminary hearing. Although part of the relief claimed in the summons includes an order that the defendant be subject to an interim detention order (“IDO”) the plaintiff does not at this stage seek such an order. That is because the defendant remains in custody and the plaintiff is hopeful that the claim for final relief, being the claim for a CDO for a period of 3 years, will be determined prior to his release from custody.

5. The only orders sought at this time are thus:

1. Orders for the appointment of medical experts to assess the defendant and provide reports to the Court pursuant to s 105A.6(3) of the Criminal Code; and

2. Protective orders in respect of certain documents, being orders 7 to 13 in the summons.

6. At the preliminary hearing, Perry Herzfeld SC appeared with Zelie Heger for the plaintiff.  Matthew Johnston SC appeared with Georgia Lewer and Dev Bhutani for the defendant. The parties relied on a joint Court Book and provided written and oral submissions.

7. Having regard to the limited nature of the orders sought at this stage, the issues for determination are similarly limited. Further, although I must form an independent satisfaction, the defendant did not generally oppose the orders sought.

The legislative scheme

8. Division 105A of the Criminal Code makes provision for continuing detention orders.

9. As set out in s 105A.1 the object of the division is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

10. Section 105A.3 specifies who may be subject to a CDO and the effect of an order for a CDO. A CDO may be made in relation to a terrorist offender if the person has been convicted of any of the offences described in s 105A.3(1)(a) and, as set out in s 105A.3(1)(b):

1. the offender is detained in custody and serving a sentence of imprisonment for an offence; or

2. the person is detained in custody and serving a sentence of imprisonment for an offence other than the particular offence; or

3. A CDO or IDO is in force in relation to that person.

11. As set out in s 105A.3(2) the effect of an order for a CDO is to commit the offender to detention in prison for the period the order is enforced. The period must not be more than 3 years.

12. The procedure which must be followed in applying to the Court for a CDO is set out in s 105A.5. The provisions are intended to ensure that, as far as possible, the terrorist offender is provided with all of the information on which the plaintiff may wish to rely in sufficient time to allow the offender to respond to the application.

13. It is not necessary to comment further on the procedure at this time, as there is no dispute in this matter that there has been compliance with the procedure specified in the Criminal Code.

14. As set out in s 105A.7, a Supreme Court of a State or Territory may make a written order for a CDO if:

1. an application is made in accordance with s 105A.5 for a CDO in relation to a terrorist offender; and

2. after having regard to matters in accordance with s 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and

3. the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

15. If not so satisfied of each of these three matters, the Court must dismiss the application.

16. The matters which the Court must have regard to in making such a determination are set out in s 105A.8(1)(a)-(i). However, those matters are not exhaustive and the Court may have regard to any other matter that the Court considers relevant: s 105A.8(2).

17. Further, the AFP Minister or a legal representative of the AFP Minister may apply to the court for an IDO in relation to a terrorist offender if an application has been made to the Court for a CDO in relation to that offender.

18. Again, the Court may make a written order (for an IDO) if the Court is satisfied of a number of matters (relating to the timing of the application and when the offender would be released) and if under s105A.9(2)(b):

“(b) the Court is satisfied that there are reasonable grounds for considering that a continuing detention order would have been made in relation to the offender.”

19. It is only necessary to say at this stage that the test as to whether an IDO should be made is somewhat different to the question which arises under the State-based legislation: Crimes (High Risk Offenders) Act 2006 (NSW) (“the HRO Act”). Further, the Criminal Code specifies that the rules of evidence and procedure for civil matters apply.

20. Having said that, similar to the HRO Act, the unacceptable risk test applies in assessing whether a CDO should be made.

Appointment of experts

21. Section 105A.6 is in the following terms:

105A.6 Appointment of and assessment by relevant expert

(1) If an application for a continuing detention order is made to a Supreme Court of a State or Territory in relation to a terrorist offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts.

(2) The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 105A.5(4).

(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a continuing detention order in relation to the offender.

(3A) The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(4) The relevant expert who is appointed must:

(a) conduct an assessment of the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community; and

(b) provide a report of the expert’s assessment to the Court, the AFP Minister and the offender.

Note: For giving the offender documents, see section 105A.15.

Attendance and participation of assessment

(5) The offender must attend the assessment.

Note: The assessment may be conducted over a number of sessions.

22. Whilst there is general agreement between the parties about the appointment of experts, I am required to be satisfied that the appointment of one or more experts is likely to materially assist the Court in deciding whether to make a CDO in relation to the defendant.

23. It is thus necessary to consider the background to the application and the evidence on which the plaintiff relies. Although, I am not at this time required to form any satisfaction as to whether the defendant poses an unacceptable risk of committing a serious Part 5.3 offence if he is released into the community or even whether there are reasonable grounds for considering that a CDO will be made in relation to the defendant (that is, the test for an IDO).

24. The question I am considering is whether the appointment of experts is likely to materially assist the Court in deciding whether to make a CDO (being the final relief sought in the summons).

Background

25. The defendant is currently 30 years of age. He had a very difficult and troubled childhood with a history of parental alcohol and drug abuse and parental mental illness. His behavioural problems commenced at the age of 10. At the age of 13 he was made a ward of the State. He became aware that the person who he had known as his father was not his biological father. He appears to have lived at various addresses throughout his childhood and was homeless at various times since he was about 13. He had difficulties at school. His behaviour was described as explosive and he ended up living with carers who he reported as being violent.

26. From the age of 18, he has had a substantial criminal history, including many offences involving violence. He has spent a major proportion of his adult life in custody. The mental illness which plagued his family has also plagued him. At the age of 19 he was diagnosed with schizophrenia. Since the age of 15 he has been using cannabis, alcohol and ecstasy. He has been experiencing hallucinations and suffers from paranoia.

27. It can be said that his mental illness has been severe. He has a history of repeated admissions to psychiatric hospitals for treatment of psychosis. The combination of alcohol and substance abuse and his mental illness provides an explanation for some of his behaviour.

28. As at the age of 23, the defendant identified as a Christian and attended Church on a regular basis. In 2015, he converted to Islam.

29. Thereafter he appears to have developed views towards extremism. Again, it is not necessary to further recite in detail his movement towards extreme beliefs but by October 2015 he was posting disturbing and extreme images on Facebook. He became threatening towards the family with whom he had been residing.

30. On 20 April 2016 he was convicted of offences contrary to s 474.17 of the Criminal Code and s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) relating to the use of a carriage service to menace, harass and offend and stalking and intimidation.

31. After being released on parole on 20 April 2016, he became more extreme in his views. He continued to offend and found himself incapable of complying with parole conditions. His mental health issues persisted despite some attempt to minimise them. He threatened self-harm. He continued to abuse drugs.

32. The circumstances of the offending which led to his conviction and sentence in this Court are set out in the judgment of Harrison J dated 18 December 2019. ^[1]

    1. R v Pender [2019] NSWSC 1814.

33. On 14 June 2017, the defendant was observed by a number of Police Officers walking along Elizabeth, Street Sydney. He appeared to be drug affected or intoxicated in that he was sweating and muttering to himself. Whilst the Police Officers were speaking to another person who they suspected of committing an offence, the defendant approached one of the Police Officers from behind, acting aggressively. He held his hands in a monkey grip in front of him.

34. After a short exchange, he was observed to be attempting to obtain an item from his right jumper sleeve. The Police Officer saw what he thought was a knife, protruding from the sleeve. A struggle ensued and the Police Officer grabbed the knife from the defendant’s hand and threw it behind him. The defendant continued to act aggressively and verbally threatening towards the Police Officers, in particular, making statements that he would rape their wives and decapitate them before saying “Allahu Akbar”.

35. When the defendant was brought before the Magistrate at Central Local Court on 14 June 2017, he continued to make comments such as “Allahu Akbar” and “Long live Abu Bakar Al Baghdadi”. Whilst the Magistrate was giving reasons for refusing bail, the defendant made a noise with his throat and intimated the sound of an automatic firearm.

36. As noted by Harrison J in his sentencing judgment, he then made various forceful statements, again referring to Allahu Akbar, suggesting he was at war with the country, referring to beheading and the Mujahideen.

37. Ultimately, the defendant pleaded guilty to the two charges to which I have referred.

38. In his sentencing judgment, Harrison J referred at length to the defendant’s mental illness and accepted that the defendant’s mental illness contributed to his offending conduct. For the offence of threatening a judicial officer, he was sentenced to a fixed term of imprisonment of 6 months commencing on 14 June 2017 and expiring on 13 December 2017.

39. For the offence of possessing a knife connected with the terrorist act, he was sentenced to a non-parole period of imprisonment of 3 years commencing on 14 September 2017 and expiring on 13 September 2020 with a balance of term of 1 year expiring on 13 September 2021.

40. The defendant applied for parole but his application was refused. He is due to be released on 13 September 2021.

The evidence

41. The plaintiff relies on an affidavit of Sue Wilson, the Assistant Commissioner of Corrective Services New South Wales dated 15 July 2021. The copy provided to the defendant was partially redacted. I received the full affidavit on a confidential basis. The defendant did not object to this course.

42. The plaintiff also relies on an affidavit of Heather Cook, the Deputy Director-General of the Australian Security Intelligence Organisation (“ASIO”) dated 24 June 2021, as well as an affidavit of Richard Johnson dated 7 July 2021, the First Assistant Secretary of the Social Cohesion Division within the Department of Home Affairs.

43. I received what is described as a confidential affidavit of Heather Cook. This affidavit was not provided to the defendant. The defendant did not object to that course and it is not necessary for me to comment further other than to say that I am satisfied that it should remain confidential.

44. The plaintiff also relies on a number of other documents which are listed in the schedule to the summons. The plaintiff seeks protective orders in respect of all of those documents. Again, the defendant consents to this course except in respect of one document on which I will comment later in this judgment.

45. Prior to this application, the plaintiff sought to have the defendant assessed by a psychiatrist and psychologist. The defendant refused to attend such examinations. Instead, the plaintiff obtained reports from Dr Kerri Eagle, forensic psychiatrist, dated 13 May 2021 and 25 June 2021. The plaintiff also obtained reports from Dr Chelsey Dewson, forensic psychologist, dated 17 May 2021 and 30 June 2021. These reports are comprehensive but the opinions expressed therein are based on the doctors’ review of the documents and, of course, the doctors’ expertise.

46. Dr Dewson noted that the lack of a clinical interview was a serious limitation on the content of the report. She was concerned that the Justice Health records that were provided to her ended in 2020 and did not provide insight into his current or recent functioning. Similarly, Dr Eagle opined that there were inherent limitations in her psychiatric assessment without clinical psychiatric assessments. Reliance was made on third party information regarding the defendant’s presentation and mental state thought process and history in formulating diagnosis and risk.

47. Subject to those limitations and other limitations expressed throughout the body of her report, Dr Eagle opined that, particularly with the benefit of the VERA-2R assessment tool, the defendant would be at a significantly elevated risk of committing a serious Part 5.3 offence, if released into the community. Further, his mental illnesses and mental disorders significantly affect the likelihood of him committing a serious Part 5.3 offence.

48. Dr Eagle noted that the defendant had previously been non-compliant with community mental health treatment and follow up. His mental health treatment is likely to continue to be complicated by his emotional instability, interpersonal deficits, illicit substance abuse and changeable insight. He is likely to experience a relapse of psychosis if he does not maintain adherence with prescribed medication and abstinence from substances including alcohol.

49. Dr Dewson’s opinion was very much to the same effect.

50. Of course, Dr Eagle is a forensic psychiatrist and Dr Dewson is a forensic psychologist. They approached their assessments on a different basis. Be that as it may, like Dr Eagle, Dr Dewson considers that there is a very high risk of re-offending with a high risk of violent re-offending and a moderate risk of violent extremism. She also considered that the defendant’s mental health and substance abuse are prominent causal factors in his offending. He would be most at risk of re-offending when actively psychotic and when his mental health is unmanaged. Substance abuse remains a prominent risk factor.

51. As I am not assessing whether an IDO or CDO should be made, it is not necessary that I comment further on the reports of Dr Eagle or Dr Dewson.

Appointment of medical experts

52. The approach of the parties to the appointment of medical experts was to attempt to find a common ground. Unlike the state-based legislation, s 105A.6 of the Criminal Code contemplates the parties nominating one or more experts for the purposes of appointment by the Court. The plaintiff originally nominated that the Court appoint Dr Shweta Sharma to examine the defendant. The defendant suggested Dr Andrew Ellis, a forensic psychiatrist. The plaintiff consents to the appointment of Dr Ellis.

53. The plaintiff submits that Dr Eagle also be appointed to carry out an assessment and that the defendant be ordered to attend that assessment. Whilst I will come to the defendant’s response to that request, the defendant also suggests that Dr Dewson be further appointed to carry out an assessment on the basis that the defendant attend on Dr Dewson for assessment.

54. As set out in s 105A.6, the Court may, either at the preliminary hearing or at any later time in the proceedings, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a CDO in relation to the offender. All of the procedural and threshold requirements for the making of an order under s 105A.6 have been satisfied. The issue for determination is whether the Court should appoint one or more of the experts nominated by the parties. I should do so if it is likely to materially assist the Court in deciding whether to make a CDO in relation to the defendant.

55. In my view, the appointment of one or more experts would so materially assist the Court for a number of reasons including:

1. although the defendant has been assessed by both Dr Eagle and Dr Dewson, both experts expressed concern or reservations about the absence of a clinical examination, having regard to the importance of that examination in the context of psychiatric and psychological evaluation;

1. it is clear that the causes of the events which have brought the defendant to this point are multifactorial. A significant contributing factor has been his mental illness. The nature of the prior offending and the risks already identified by Dr Eagle and Dr Dewson are such that evidence contemporaneous with his intended release from custody and based on thorough and proper assessment and analysis, with as little limitations as possible, will be of benefit to the Court in assessing whether the defendant poses an unacceptable risk for the purposes of considering whether a CDO should be made; and

2. Dr Dewson raises a possible decline in the defendant’s intellectual function, based on cognitive assessments. In 2004, he was assessed to be functioning cognitively at the average level but by 2017 his functioning was in the low average range. Dr Dewson did suggest deficits in abstract reasoning and processing which is often associated with the progress of schizophrenia. The nature and extent of the defendant’s current cognitive functioning and, indeed, the nature and extent of any mental illness and the risk posed by that illness will be important factors in assessing whether the orders sought by the plaintiff should be made.

56. In all those circumstances, I am satisfied that the appointment of Dr Ellis to carry out an assessment of the risk of the defendant committing a serious Part 5.3 offence if he is released into the community and the provision of a report by him to the Court is likely to materially assist the Court in deciding whether to make a CDO.

57. Further, having regard to the different disciplines and approach and expertise of a psychiatrist and a psychologist and, in particular, having regard to the content of Dr Dewson’s original reports, I am satisfied that the appointment of Dr Dewson to carry out an assessment and provide such a report would also materially assist the Court in deciding whether to make a CDO.

58. The position in respect of Dr Eagle is perhaps a little more nuanced.

59. I say this because Dr Eagle has similar qualifications to Dr Ellis. Further, as set out in s105A.6(8), the appointment of an expert does not prevent a party such as the plaintiff from calling his or her own relevant expert as a witness in the proceedings. The plaintiff is not prevented from relying on the existing reports of Dr Eagle merely because she was not appointed by the court.

60. There might also be an issue whether an expert appointed by a party can then become an expert appointed under s 105A.6(3). I raised this with Mr Herzfeld. I accept his submission that on the proper construction of s 105A.6, the court is not precluded from appointing an expert under s 105A.6(3) merely because that expert has previously provided a report at the behest of a party.

61. The appointment under s 105A.6(3) comes with the protection afforded to the defendant under s 105A.6(5A) to the effect that answers to a question or information given as part of the assessment is not admissible in evidence against the defendant in criminal or civil proceedings.

62. The intent of s 105A.6(5A) is plainly to ensure that the offender may speak freely to the medical examiner as there can be no doubt that the history and clinical examination would be most important in the context of a psychiatric/psychological evaluation.

63. The plaintiff requests that Dr Eagle be appointed pursuant to s 105A.6(3). The plaintiff points to the risks that Dr Eagle’s reports may be given less weight when compared to evaluations undertaken by experts who have actually examined the defendant.

64. The defendant expresses concern as to the number of examinations the plaintiff may have to attend. Indeed, the plaintiff recognised that issue, suggesting that an alternative approach may be to appoint Dr Eagle but on the basis that she be present during Dr Ellis’ examination and be permitted to make notes and form her own assessment based on his presentation to Dr Ellis.

65. I do not consider that would be an appropriate course. I am not sure that it would be satisfactory to have one psychiatrist conducting the examination and another sitting quietly without the ability to ask relevant questions for the purposes of her assessment.

66. Ordinarily, like in any civil matter, there must be a limitation on the number of experts appointed.

67. I would not generally consider it appropriate to appoint two experts of the same discipline i.e. two psychiatrists. However, Dr Eagle’s experience in these matters is well-known. Her reports are comprehensive but in this case expressed with the limitations which flowed from her inability to examine the defendant. This defendant is a person who has been suffering from a severe mental illness for a significant period. In my view, Dr Eagle’s views would be likely to materially assist the Court in deciding whether to make a CDO.

68. In the particular circumstances of this matter, I am thus satisfied that both Dr Ellis and Dr Eagle should be appointed and that the defendant must attend assessments by both doctors, as well as Dr Dewson.

69. Having said that, as I raised with the parties during the hearing, if the defendant is to be subject to psychological testing by Dr Dewson it would be appropriate for those representing the plaintiff to give some notice to the defendant of the extent of that testing and the likely time that he might be required to be under assessment by Dr Dewson. Careful thought and preparation needs to be given to these types of assessments in the context of a person suffering from the illness of which the defendant has been diagnosed.

Protective orders

70. The plaintiff seeks a number of protective orders in respect of a range of documents. The defendant did not generally oppose those orders being made except in respect of one document referred in the schedule to the summons. That document is referred to as the VERA-2R evidence sheet dated 2 September 2020. The defendant points out that the existence of and diagnostic tools relevant to the VERA-2R evidence sheet have been the subject of reference in other cases such as State of New South Wales v Osman. ^[2] That is so, but as the plaintiff submits, those references are at a higher or general level.

    2. [2020] NSWSC 1646.

71. In support of its application for protective orders, the plaintiff relies on both the open and confidential affidavits of ASIO Deputy Director-General Heather Cook affirmed 24 June 2021 and the open and redacted affidavits of Corrective Services Assistant Commissioner Sue Wilson affirmed 15 July 2021. The affidavit of ASIO Deputy Director-General Heather Cook addresses the documents listed in items 1 to 3 in the schedule. The affidavit of Assistant Commissioner Sue Wilson addresses the items at 4 to 7.

72. As far as item 8 (being the VERA-2R evidence sheet) is concerned, the plaintiff relies on the affidavit of First Assistant Secretary Richard Johnson affirmed 7 July 2021. Mr Johnson is the First Assistant Secretary of the Social Cohesion Division at the Department of Home Affairs and is responsible for countering violent extremism, social cohesion and multicultural policy programs. He says that the VERA-2R tool is intended to provide a basis for the assessment and management of the risks posed by terrorists and violent extremists. The Commonwealth licences the VERA-2R tool in Australia. He says that the protection of the confidentiality of the VERA-2R tool is necessary to manage two related risks being:

1. the risk of abuse of the tool by individuals who may in the future be subject to assessments using it; and

2. the consequent risk to national security that may follow from an inadequate or insufficient intervention decision or action that has been taken in reliance on a report prepared in such a situation.

73. He says there is a meaningful prospect that those risks will materialise in the future if the contents of the tool are publicly disclosed. He has regard to the fact that individuals who are to be assessed using the VERA-2R tool are often given advanced notice of that fact, as well as that the tool may be used in respect of a single individual on multiple occasions over the course of a custodial sentence. It may be administered on multiple persons detained in the same custodial environment.

74. In the end the defendant’s opposition to the protective order was somewhat limited. Mr Johnston said:

“In relation to item 8, as we say in our written submissions, the horse has bolted. I have referred to two cases, in our submissions, but there are ultimately 13 cases where there has been express reference to the indicia and the matters to be taken into account in assessing somebody. That said, if the order is being limited to the content of that particular work sheet behind the tab, we don’t have anything further to say in relation to the application.”

75. I am satisfied that the VERA-2R tool should be the subject of a protective order.

76. Of course, having regard to our system of open justice, it is important that any orders restricting access to such documents only be made on grounds specified in the Court Suppression and Non-publication Orders Act 2010 (NSW). The plaintiff originally identified each of the grounds set out in s 8(1) of that Act being:

“(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

…”

77. Whilst there might be some potential that there be prejudice to the proper administration of justice, it seems more likely that the protective orders sought in respect of documents 1 - 7 are necessary either:

1. to prevent prejudice to the interests of the Commonwealth or State or Territory in relation to national and international security; and

2. that the order is necessary to protect the safety of a person.

78. In particular, I have regard to some of the information contained in the confidential ASIO affidavit. Whatever might be said about the interests of the Commonwealth or State or Territory in relation to national security, I am satisfied that there would be safety concerns to any person should the order not be made.

79. In respect of document 8, I am satisfied that the order is necessary on the grounds set out in s 8(1)(a) and (b).

80. I have been provided with short minutes of order by the plaintiff.

81. I make the following orders:

Experts

1. Pursuant to s 105A.6(3) of the Criminal Code (Cth), each of Dr Andrew Ellis, Dr Kerri Eagle and Dr Chelsey Dewson be appointed to conduct an assessment of the risk of the defendant committing a serious Part 5.3 offence if released into the community and provide a report of the assessment to the Court, the plaintiff and the defendant.

Protective orders

2. That there be no disclosure of the documents described in the Schedule to the Summons (including any version of those documents filed pursuant to order 9) or the open affidavit of Assistant Commissioner Wilson dated 15 July 2021 (Wilson Affidavit), other than to and between the following persons:

1. the Judge of the Court hearing the application;

2. necessary court staff, including transcription staff;

3. the plaintiff, her legal representatives and Commonwealth officers;

4. the defendant, but only in the company of his legal representatives;

5. legal representatives of the defendant, on condition that such documents not be left in the possession of the defendant; and

6. experts and other witnesses in the proceedings.

3. For the documents described at items 1–7 of the Schedule to the Summons and the open Wilson Affidavit, order 2 applies throughout the Commonwealth of Australia for a period of 20 years from the date of this order.

4. In relation to the documents at item 8 of the Schedule to the Summons, order 2 applies throughout the Commonwealth of Australia until the Commonwealth of Australia ceases to licence the VERA-2R tool for use.

5. To the extent that orders 2 (in respect of items 1–7 of the Schedule to the Summons and the Wilson Affidavit) and 3 are made under the Court Suppression and Non-Publication Orders Act2010 (NSW), they are made on the grounds specified in s 8(1)(b) and (c) of that Act.

6. To the extent that orders 2 (in respect of item 8 of the Schedule to the Summons) and 4 are made under the Court Suppression and Non-Publication Orders Act 2010 (NSW), they are made on the grounds specified in s 8(1)(a) and (b) of that Act.

7. The parties and their legal representatives are to return copies of all of the documents described at items 1–3 of the Schedule to the Summons to the Commonwealth at the conclusion of these proceedings or, in the event of an appeal, the conclusion of any appeal in respect of these proceedings.

Procedural matters

8. The Court only version of the Wilson Affidavit which was provided to his Honour Justice Cavanagh’s Chambers on 22 July 2021 be returned to the plaintiff.

9. The plaintiff have leave to uplift from the Court file the documents described at items 4–7 of the Schedule to the Summons and replace them with versions of the same documents containing additional redactions made on the ground of public interest immunity.

10. The proceedings be adjourned for further directions before Justice Bellew to make orders for the further conduct of the matter on Thursday 29 July 2021 at 9.30am.

**********

Endnotes

Decision last updated: 28 July 2021