Background
Barbara Perry, a 46-year-old Wiradjuri woman with treatment-resistant schizophrenia and cognitive impairment, had been detained or supervised as a forensic patient since offences committed in 2014. Those offences involved three random, unprovoked attacks on elderly women, one of whom suffered permanent impaired vision. After Perry was found unfit to stand trial and the offences were proved at a special hearing, she received a limiting term that expired in 2019. Her forensic-patient status was then extended for five years in 2019 and for another two years in 2024, with the latter order due to expire on 17 October 2026.
The Attorney General sought a further 18-month extension under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), together with a three-month interim extension and orders for expert examinations. Perry opposed the interim relief and sought dismissal at the preliminary stage. Although the supporting material documented longstanding mental illness, past violence, later aggression, and recent cannabis and methamphetamine use, it also showed substantial improvement as restrictions were reduced. By the hearing, Perry was living seven nights per week in supported accommodation with round-the-clock assistance, substantial NDIS funding, Public Guardian involvement, and the anticipated protection of a community treatment order.
The Court’s Holding
Hamill J dismissed the summons under s 126(6). At a preliminary hearing, the Court must assume that factual matters alleged in the supporting documentation will be proved and must not predict the final outcome. Nevertheless, it must meaningfully evaluate the whole body of material, bearing in mind that a final extension order requires satisfaction to a high degree of probability that the patient poses an unacceptable risk of causing serious harm and that the risk cannot adequately be managed by less restrictive means. An expert’s opinion on those ultimate issues does not determine the Court’s conclusion.
Even accepting the State’s material and the opinion that Perry would benefit from continued forensic oversight, the Court was not satisfied that the allegations, if proved, would justify another extension order. Perry had committed no serious violent offence since 2014; her only recent act of physical violence was an unsuccessful attempt to strike a nurse more than a year earlier; and her behaviour had improved as restrictions were lifted. The available alternatives were practical rather than hypothetical: supported accommodation, 24-hour staffing, extensive NDIS services, guardianship, and civil mental-health supervision. Although Perry remained seriously ill and presented some risk, particularly if she used drugs or stopped treatment, the State had not met even the preliminary statutory threshold.
The Court also restricted non-party access to the file absent judicial leave and directed the parties to notify the judge’s associate within seven days about costs.
Key Takeaways
- A preliminary extension application requires more than pointing to an expert opinion: the Court must evaluate the supporting material as a whole while assuming the alleged facts will be proved.
- The preliminary threshold is lower than the final test, but it must still be applied with the final requirement of proof to a high degree of probability firmly in view.
- Concrete community arrangements—including supported housing, NDIS services, guardianship, and a community treatment order—may constitute realistic less restrictive means of managing risk.
Why It Matters
The decision clarifies that preliminary proceedings are not automatic gateways to interim forensic-patient extensions. Even where a patient remains seriously mentally ill and experts recommend continued forensic oversight, the State must show that the alleged facts could justify both findings required for a final order: unacceptable risk of serious harm and the inadequacy of less restrictive management.
It also underscores the importance of current conduct and real-world community supports. Historical violence and clinical risk factors remain relevant, but they must be assessed alongside recent improvement and the demonstrated availability of intensive, coordinated alternatives to continued forensic status.