Violent extremism risk assessment in the Australian courts; professional and ethical challenges for the expert witness in post sentence preventative detention cases

ABSTRACT

Since 2016, Federal legislation has been in place in Australia allowing for post sentence preventative detention of individuals deemed to pose an unacceptable risk of committing a serious terrorism offence if they were released into the community. This type of legislation poses significant legal, moral and ethical issues as it balances the rights of the community to be protected from harm against the rights of an offender to be released at the end of a finite prison sentence. Courts are required to obtain reports from psychiatrists and/or psychologists as expert witnesses addressing the issue of risk. In this paper, we examine whether the current state of knowledge regarding violent extremism risk assessment meets the legal standards for admissibility and reliability, and we provide guidance on how to address the professional and ethical challenges which are inherent in this work.

KEYWORDS:

• Violent extremism
• risk assessment
• terrorism
• court

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Expert Witness Code of Conduct for NSW, VIC, WA, SA, NT and ACT. Retrieved from https://expertsdirect.com/expert-witness-code-of-conduct-2/.

2 R v Bonython (1984) 38 SASR 45, 46–47.

3 Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

4 R. v. Sally Clark [2003] EWCA Crim 1020.

5 Law Commission. (2011). Expert evidence in criminal proceedings in England and Wales (Vol. 829). The Stationery Office.

6 R. v. Angela Cannings [2004] EWCA Crim 1; (2004) 1 WLR 2607

7 Law Commission. (2011). Expert evidence in criminal proceedings in England and Wales (Vol. 829). The Stationery Office.

8 High Risk Serious Offenders Act 2020.

9 High Risk Terrorist Offenders) Act 2016 (Cth).

10 Terrorism (High Risk Offenders) Act 2017 (NSW).

11 Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016, No. 95 (Cth).

12 Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (Cth).

13 Minister for Home Affairs v Benbrika [2020] VSC 888 at [478]-[480].

14 Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth).

15 Terrorism (High Risk Offenders) Act 2017 No 68 (NSW).

16 Minister for Home Affairs v Benbrika [2020] VSC 888 (24 December 2020) para 442.

17 Ibid, para 445.

18 Ibid, para 449.

19 Ibid, para 451.

20 Division 101 of the Criminal Code Act 1995.

21 https://www.asio.gov.au/publications/speeches-and-statements/director-generals-annual-threat-assessment-2021.

22 Meadow v General Medical Council [2006] EWHC 146.