Citation: State of New South Wales v Farzad (Preliminary) (No 2) [2026] NSWSC 301
Court: Supreme Court of New South Wales — Common Law Division
Date: 31 March 2026
Judge(s): Roberts J
Background
The defendant is a person subject to an existing extended supervision order ("ESO") imposed in March 2024 by Hamill J under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). That ESO was due to expire on 23 April 2026. The State of New South Wales, by summons filed in December 2025, sought a further ESO for two years. At this preliminary stage, the State sought interim orders: the appointment of two qualified psychiatrists or psychologists to examine the defendant, a direction that the defendant attend those examinations, and an interim supervision order for 28 days commencing upon the expiry of the existing ESO.
The defendant was unrepresented, did not attend the preliminary hearing on 25 March 2026, and did not appear by audio-visual link or make any submissions. This was consistent with a pattern across three prior directions hearings at which the defendant neither appeared nor instructed lawyers on his behalf, despite being repeatedly notified of the dates and offered access to Legal Aid NSW and NDIS support workers. The defendant had explicitly told his departmental supervising officer that he did not wish to have legal representation and would not attend court.
The defendant has significant and complex mental health conditions. The evidence before the Court indicated that he had not engaged with treatment or interventions during the period of the existing supervision order, lacked insight into the relationship between his mental health and his risk of reoffending, and was assessed as presenting a well above average risk of sexual reoffending. The defendant had previously actively participated in the 2024 proceedings through legal representation, where he successfully resisted a continuing detention order and achieved amendments to proposed supervision conditions.
Legal Issues
- Whether the Court could proceed with the preliminary hearing in the defendant's absence, given the civil-but-liberty-restricting nature of proceedings under the Act
- Whether the defendant had adequate notice of the proceedings and, relatedly, whether his mental health conditions affected his capacity to understand that notice
- Whether the plaintiff's supporting documentation, taken at its highest, established a prima facie case sufficient to justify the making of an interim supervision order under s 10A of the Act
- What interim orders, if any, should be made pending the final hearing of the ESO application
Decision
Proceeding in the defendant's absence
Roberts J acknowledged that proceedings under the Act are civil in nature (as expressly stated in s 21), but emphasised that they concern restrictions on a person's liberty and must therefore be approached with care. The Court recognised that the power to determine a matter in a party's absence exists in civil proceedings, but that the gravity of the consequences — both of making the order and of a breach of its conditions — requires the Court to be well satisfied that proceeding is in the interests of justice.
Her Honour drew a distinction between the preliminary and final hearing stages. At the preliminary stage, the Court is not weighing up evidence or predicting the ultimate result; it is assessing whether the plaintiff's case, taken at its highest, would justify the making of an ESO. Any prejudice to the defendant from non-participation at this stage is therefore qualitatively different from what it would be at a final hearing.
On the question of notice, Roberts J was "comfortably satisfied" that the defendant had adequate notice. The evidence showed that the defendant had been served with the summons and supporting materials, had received multiple letters (which he signed acknowledging receipt), had been reminded of hearing dates by his supervising officer and by text message, and had been repeatedly informed of the availability of free legal assistance. While the defendant's mental health conditions may have contributed to his low motivation and reluctance to participate, the evidence — including his expressed views about his supervision conditions and his awareness of what the proceedings concerned — indicated that he understood the nature and significance of the proceedings and had made a deliberate choice not to engage.
The merits of the interim orders
Turning to the substantive question, Roberts J applied the test under s 10A of the Act, which requires the Court to be satisfied that the matters alleged in the supporting documentation would, if proved, justify an ESO. This has been described in the case law as akin to a prima facie case test, or as requiring the Court to take the plaintiff's case at its highest. The Court found this threshold was met. The supporting documentation disclosed that the defendant had committed serious sexual offences, had significant mental health conditions, lacked insight into the connection between those conditions and his offending risk, had not engaged with treatment or interventions during the current supervision period, and was assessed as presenting a well above average risk of reoffending. Accordingly, interim orders were warranted to maintain supervision while the application for a further ESO proceeded to final hearing.
Orders Made
- Two qualified psychiatrists or registered psychologists were appointed to separately examine the defendant and report to the Court
- The defendant was directed to attend those examinations
- An interim supervision order was made under s 10A of the Act, commencing 23 April 2026 (the date of expiry of the existing ESO) for a period of 28 days
- The defendant was directed to comply with conditions set out in the Schedule to the summons for the duration of the interim supervision order
Key Takeaways
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Even at a preliminary stage, liberty interests demand particular care: the Supreme Court held that while high risk offender proceedings may continue in a defendant's absence, the court must be well satisfied that doing so is in the interests of justice, given the liberty-restricting nature of the orders sought.
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Adequate notice requires more than formal service. Roberts J examined evidence of the defendant's actual understanding of the proceedings and capacity to respond, considering case notes, conversations with supervising officers, and the defendant's history of prior participation, rather than merely whether documents had been delivered.
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Where evidence demonstrates that a defendant has made a considered and repeated choice not to participate, rather than being unable to do so, deliberate non-engagement may weigh in favour of proceeding in the defendant's absence, particularly at the preliminary stage.
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The preliminary hearing threshold remains low, requiring only that the supporting documentation, taken at its highest, would justify the making of an extended supervision order. The Supreme Court clarified that a court does not weigh evidence, assess credibility, or predict the outcome at this stage.
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Satisfaction that the defendant had been given every reasonable opportunity to participate was informed by detailed affidavit evidence relied upon by the plaintiff, including departmental case notes, records of conversations, signed acknowledgments, and text messages documenting all efforts to engage the defendant.
Legislation and Cases Referenced
Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 7(4), 9, 10A, 10C(1), 11, 17(2), 21
- Civil Procedure Act 2005 (NSW), Pt 6
- Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases:
- Attorney-General for New South Wales v Tillman [2007] NSWCA 119
- Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
- Cornwall v State of NSW [2007] NSWCA 374
- Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
- Manna v State of NSW (No 2) [2021] NSWSC 1384
- Monteiro v State of NSW [2025] NSWSC 439
- State of New South Wales v Farzad (Final) [2024] NSWSC 265
- State of New South Wales v Farzad (Preliminary) [2023] NSWSC 1207
- State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008
- State of NSW v Guider (No 3) [2020] NSWSC 209
- State of NSW v Manners [2008] NSWSC 1242
- State of NSW v Thomas (Preliminary) [2011] NSWSC 118