State of New South Wales v Elomar (Preliminary)

1. [1]

   By summons filed on 23 November 2020, the State of New South Wales seeks, inter alia, an Extended Supervision Order (“ESO”) under the Terrorism (High Risk Offenders) Act 2017 (the “Act”), against the defendant Ahmed Elomar. The State summons also seeks an order under s 24(5) of the Act appointing a psychologist and a psychiatrist to examine the defendant, and an Interim Supervision Order (“ISO”) under s 27 of the Act for a period of 28 days commencing 24 January 2021. This judgment deals with those claims for relief.

The Act

1. [2]

   Given the issues that have arisen on the application, it is only necessary to briefly describe the provisions of the Act. Sections 22 and 23 of the Act enable the State to apply to the Court for an ESO in respect of an "eligible offender" who is in custody or under supervision, either while serving a sentence of imprisonment for a NSW indictable offence or under an existing ISO, ESO, interim detention order or continuing detention order. Section 7 of the Act defines an "eligible offender" as including a person over the age of 18 who is supervised under the Act, after serving a sentence of imprisonment for a NSW indictable offence.

2. [3]

   Amongst other offences, the offender has previously been convicted of an offence of recklessly wound a police officer acting in execution of his duty contrary to s 60(3A) of the Crimes Act 1900 (the “index offence”). In June 2014, he was sentenced for the index offence to a term of imprisonment of 4 years and 8 months, with a non-parole period of 2 years and 6 months. On 8 August 2018, Bellew J made an ESO against the defendant which is due to expire on 24 January 2021 (State of New South Wales v Elomar (No 3) [2018] NSWSC 1234; “Elomar (No 3)”). It follows that the defendant is an "eligible offender" for the purposes of the Act.

3. [4]

   Section 24(4) of the Act requires the Court to conduct a preliminary hearing into the application within 28 days after it is filed. Hence, the hearing is being conducted today. Section 24(5) provides:

4. [5]

   Section 27 of the Act deals with the making of an ISO. It provides:

5. [6]

   Each of these provisions refers to the content of the "supporting documentation", which generally is a reference to the material that must accompany the application as stated in s 23(3) of the Act. It includes a report of a qualified psychiatrist, registered psychologist, registered medical practitioner or other qualified person that assesses the likelihood of an eligible offender committing a serious terrorism offence. The above provisions also refer to the making of an assessment based on the "matters alleged in the supporting documentation … if proved"; that is, on the assumption that those matters are proved. The nature of such an assessment was explained by Johnson J in State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [97] to [103]. I adopt that explanation.

6. [7]

   The balance of these provisions call attention to the criteria of the making of an ESO in s 20 of the Act which provides:

7. [8]

   In light of the matters I have already stated, there is no issue in this case that s 20(a) and s 20(b) are satisfied. As for s 20(c), it is said by the State that the defendant is a "convicted NSW terrorism activity offender" as defined by s 10(1) of the Act, which relevantly provides:

8. [9]

   The State contended that the defendant satisfied s 10(1)(c)(ii) of this definition. That fact is borne out by some of the events to which I will refer. I note that counsel for the defendant, Mr Lange, conceded that his client satisfied that definition.

9. [10]

   As for s 20(d), it is unnecessary to undertake an exhaustive exegesis of that provision of the kind was undertaken in the 47-page submissions lodged by the State in support of this preliminary application. It suffices to note that there is a distinction between the high level of satisfaction that is required for the test to be made out "of the high degree of probability" and the relatively low level of risk that is "unacceptable" in the context of a "serious terrorism offence" and the obvious carnage that such an offence can cause (see s 4(1)).

10. [11]

    Lastly, I note in determining whether to make an ESO or ISO, regard must be had to the criterion in s 25(3) of the Act, which I need not set out, but to which I will refer. Otherwise, the statutory provisions concerning the impositions of conditions on ISO or ESO are addressed below.

Background

1. [12]

   The defendant is 37 years old. At some point, he was a professional boxer. He comes from a large family, some members of which have links to terrorism. His younger brother and cousin left Australia to fight for Islamic State (“ISIS”). They are presumed to have died in the conflict in the Middle East (see State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 at [46]; “Elomar (No 2)”).

2. [13]

   As at May 2018, the defendant's uncle was in custody for terrorism offences. Further, his cousin, Khaled Sharrouf, was a convicted terrorist. He is also believed to have died fighting for ISIS (see Elomar (No 2) at [50] to [51].)

3. [14]

   In Elomar (No 2), Rothman J described aspects of the defendant's criminal conduct as follows.

4. [15]

   In April 2013, the defendant was convicted of affray and assault and sentenced to 12 months imprisonment, with a non-parole period of 8 months, expiring in September 2013 (Elomar (No 2) at [23]). These convictions relate to a confrontation between a group to which the applicant belonged, and which was associated with an Islamic bookstore in Bankstown, and another group said to have been associated with the neighbouring juice bar. It was said this confrontation occurred after a "donation" was demanded from the juice bar owner to prove that he did not support President Al-Assad of Syria.

5. [16]

   In June 2014, the defendant was convicted of the index offence. This concerned a protest in 2012 which arose out of the manner in which the Prophet Mohammed had been depicted, being something to which the protestors objected. According to Rothman J, during the course of the demonstration, the defendant struck a police officer in the head with a wooden pole (Elomar (No 2) at [29]). The sentencing judge for the index offence described the attack as "unprovoked". Her Honour found the defendant was not "casually caught up in the violence" but was "at the forefront of the aggression" (Elomar (No 2) at [30]).

6. [17]

   In July 2014, the defendant was convicted of two assaults relating to a violent confrontation between members of his family and another family during which the defendant punched a member of the opposing family who had cerebral palsy (Elomar (No 2) at [25]).

7. [18]

   In Elomar (No 2), Rothman J noted the following about the defendant's time in custody (at [40] to [41]):

8. [19]

   At some point thereafter, the defendant was released on parole, but it was later revoked because of an alleged breach said to have occurred in May 2017. This was an alleged act of intimidation committed by the defendant while he attended a sporting event. He was initially convicted of that offence in the Local Court. However, his conviction was overturned on appeal and the charge was dismissed (Elomar (No 3) at [10]).

Unacceptable Risk

1. [20]

   Against that background, it is necessary to address the criteria for determining unacceptable risk based on the matters alleged in the supporting documentation.

2. [21]

   The State tendered two reports from a psychologist, Dr Katie Seidler (see s 25(3)(b) and s 23(3)(b)). The first of those reports is dated 16 November 2020. In that report, Dr Seidler provides a detailed review of the material concerning the relevant risk posed by the defendant. Also, Dr Seidler interviewed the defendant on 10 November 2020. It should be noted that her report contains a number of matters that are favourable to the applicant. Mr Lange pointed to the following passage in that report:

3. [22]

   From this passage, Mr Lange emphasised Dr Seidler's characterisation of the defendant as not being someone who holds extremist ideological views, and her ultimate conclusion that the question of risk is something that the defendant will have to address himself. To this, I would add that Dr Seidler's overall assessment of the risk posed by the defendant was as follows:

4. [23]

   Of course the assessment of risk posed by the defendant in this case is not addressed to the possibility that he might engage in some "generalised offending in the future", but to the risk that he might engage in the commission of a serious terrorism offence. That said, just because there is a greater risk that someone might commit some form of generalised offending does not mean that the risk of their committing a serious terrorism offence is acceptable.

5. [24]

   The other report prepared by Dr Seidler is dated 8 December 2020. It was prepared following her being given access to further documentary material. Overall, there is no material difference between the opinion that Dr Seidler expresses in that report and that which I have cited. It is sufficient to note the following conclusion:

6. [25]

   A multitude of other psychological and psychiatric reports were tendered. To the extent possible, I have reviewed them (see s 25(3)(b)). In broad terms, they are not materially different to Dr Seidler's assessment, although Dr Seidler's assessment represents the culmination of a general improvement in the level of risk that the defendant can be seen as posing over recent years. For example, in a report dated 6 June 2018 (cited in Elomar (No 3)), psychiatrist Dr Kerry Eagle opined that if the defendant "were to continue to associate with convicted terrorists and those known to harbour violent Islamic extremist beliefs, his risk of committing a serious terrorism offence would be significantly elevated, when compared to the rest of the population”.

7. [26]

   The State also tendered a report prepared by the Terrorism (High Risk Offenders) ("THRO") psychology team dated 4 November 2020 (see s 25(3)(b)). This report suggested progress by the defendant in that he was assessed in the "low/moderate risk range specific to violent extremism, politically motivated violence or terrorism”. However, the report noted that he still had significant vulnerabilities, especially concerning susceptibility to influence, including from family and friends. It was observed that:

8. [27]

   That said, the report also noted that the defendant had not been observed to express an intention to commit an act of violent extremism and political violence or terrorism, or a willingness to prepare for such acts.

9. [28]

   A Risk Management Report dated 30 November 2020 prepared by the THRO unit was also tendered (see s 25(3)(d)). It noted that the defendant's response to community corrections supervision had been largely positive. It proposed a risk management plan that involved his continuing at his present accommodation, supervision of the defendant, a focus on identified risks, needs and certain issues including antisocial peer associations and influence, and the members of the Corrective Services team working closely with the defendant to engage him in further education and training. As part of that process it is proposed that there would be a minimum of weekly face-to-face interviews with his community corrections enforcement officers, as well as monthly home visits by such an officer.

10. [29]

    I have already referred to the defendant's criminal history (see s 21(3)(j)). The State submissions also refer to two instances where the defendant was charged with breaching his ESO, but the charges were dismissed (see s 25(3)(i)(iii)). Given the dismissal of charges, I do not attribute them any great weight in considering whether the defendant will comply with the obligations imposed on him. However, the material concerning one of the instances suggests that he has had some contact with a convicted criminal in November 2018 which is potentially of some significance given the reports noted above.

11. [30]

    I note that there are currently outstanding charges against the defendant alleging that he breached his ESO by, inter alia, deleting data from his mobile phone which allegedly related to the conflict in Syria. I am told that these charges are due for trial in February 2021. The nature of the material that he is alleged to have deleted can be ascertained from a Crown Case Statement filed for the upcoming trial. As best as I can ascertain, the description of the material suggests that it involved mainstream reporting on the fate of ISIS and did not involve extremist propaganda. Otherwise, the State conceded that the defendant had been of good behaviour generally while subject to his ESO (see s 25(3)(i)), although a few incidents of antisocial behaviour are alleged. It suffices to state those matters do not affect the present assessment. Generally, the defendant has a reasonable record of compliance with his parole conditions.

12. [31]

    This brings me to the heart of the application which concerns the defendant's susceptibility to influence by others and whether his associations give rise to an unacceptable risk. In its written submissions, the plaintiff's case for an ISO reduced to the contention that:

13. [32]

    Mr Lange submitted that, based on the matters alleged in the supporting documentation, it could not be demonstrated that absent supervision, the defendant posed the relevant risk. He pointed to the defendant’s conduct while the subject of his current ESO and to Dr Seidler's reference to the defendant's commitment waning in the absence of his previous close and regular connections.

14. [33]

    The competing contentions on this part of the case warrant scrutiny of what the supporting material indicates in relation to the defendant's connections with others who are, or may be, radicalised. I have referred above to those members of the defendant's family who are said to have some connection with terrorism. The State's submissions expressly disclaimed reliance on those associations as currently giving rise to a risk. However, the State relied on interactions between the defendant and other persons since 2018. Omitting the evidentiary references, that material was adequately summarised in the State's amended submissions as follows:

15. [34]

    To this summary, I note that from my review of the material, it appears that with the incident on 8 June 2018, another person who was in the car with Mr Benbrika claimed ownership of the Qur'an with the emphasised passages. Further, the material concerning the possible visit to Mr Touma noted at [119] of the State's submissions, reveals that in fact, the defendant considered making the visit, but of his own volition, decided not to follow through with it.

16. [35]

    By way of contrast to this material, Mr Lange took the Court through case notes of the Department of Corrective Services which contained a number of entries suggesting an increase in the occasions at which the defendant expressed pro‑social views and which pointed towards his rehabilitation. In particular, Mr Lange submitted the material indicated that his rehabilitation would be adversely affected if another ISO or ESO were imposed and noted that was at least one of the objects of the Act (see s 3(2)). Consistent with this, there was also other material tendered, including a statement by a police officer concerning a recent and positive interaction with the defendant, as well as a report of a forensic psychologist from 2018 which was to similar effect.

17. [36]

    I have outlined the State's primary submission above. In oral submissions, Senior Counsel for the State, Mr Emmett SC, accepted that the material concerning recent contact with extremist elements was limited and that there was countervailing material suggesting that the defendant was consciously avoiding such contact, and otherwise reporting in accordance with obligations. Mr Emmett SC nevertheless submitted that when the material concerning his associations is considered as a whole, along with the expert material and the evidence concerning non‑compliance with his reporting obligations, that the test, at least for the grant of an ISO, was made out.

18. [37]

    In both his oral and written submissions, Mr Lange referred to the contacts described in the State's submissions above as "historical", a proposition I did not accept. He submitted that the nature of the interactions "appeared limited", a matter that is perhaps more accurate, although I notice that some of the instances involved bouts of intensive communication over a short period of time. As noted, Mr Lange pointed to the evidence of the defendant’s pro-social behaviour and interactions with authorities, as well as what he described as his client's "scrupulous compliance" with his obligations. Thus, Mr Lange submitted that the statutory test was not made out.

19. [38]

    In the end result, I return to the terms of s 20(d) and the over-riding purpose of the Act in s 3(1), specifically, "ensur[ing] the safety and protection of the community". The defendant's susceptibility to influence leaves him presenting a risk of committing a serious terrorism offence. Given the nature of serious terrorism offences, a risk of such an offence being committed does not have to be a very high risk for it to be "unacceptable". The degree and extent of the defendant's association with radicalised persons is sufficient to make it so in this case, although only just.

20. [39]

    In terms of the position absent supervision, the defendant presents as the very type of person whose risk can be addressed by supervision. It is clear from the material that he is anything but a committed extremist. It follows that the matters alleged in the supporting documentation would, if proved, justify making the ESO. Accordingly, orders under s 23(5) and s 27 will be made.

21. [40]

    One difficulty with the orders under s 23(5) is that the defendant is due to face trial in February 2021 on the charge of breaching his ESO. To avoid any infringement of his right to face a fair trial, I will order that the persons appointed be directed to refrain from asking the defendant about the subject matter of those charges. Further, for the avoidance of any doubt, it should be made clear the defendant is not under any obligation to answer any questions about that matter or otherwise address it in any explanation he chooses to give to the persons so appointed.

Conditions

1. [41]

   Section 29(1) of the Act empowers the Court to direct an eligible offender to comply with such conditions that the Court considers "appropriate". Further, s 29(1A) of the Act provides that, unless the Court orders differently, an ESO or ISO must include certain specified conditions.

2. [42]

   In relation to the imposition of conditions, Mr Lange submitted that emphasis should be given to his client's rehabilitation. Mr Lange submitted that any conditions which were not directly related to supervising his client's associations were likely to be counter-productive and thus not "appropriate". Whilst I do not consider that it is appropriate to limit the conditions imposed so that they only concern the defendant's associations, there is considerable force in Mr Lange's overall contention.

3. [43]

   At the final of hearing this matter, if an ESO is to be made, particular attention will need to be focused on the form of conditions imposed to avoid them becoming oppressive and thereby jeopardising the substantial improvement in the defendant's risk profile and undermining both objectives of the Act to which I have referred. I suspect, but do not know that much will depend upon the outcome of the current charges that he faces.

4. [44]

   The conditions originally sought to be imposed by the State include five that were not included in his current ESO. In the course of giving judgment, I was advised those five are not pressed. It is not necessary to consider them further.

5. [45]

   In relation to the balance of the conditions, Part A are reporting and monitoring obligations. Given the risks that have been identified, they are clearly appropriate. Part B concerns accommodation. Part C concerns place and travel restrictions. Part D concerns employment and finance. Part F concerns non‑association. These conditions were either presumptively included by the operation of s 29(1A) or otherwise sufficiently related to the defendant's associations. Their imposition is appropriate.

6. [46]

   Part H concerns weapons. Part I concerns the operation of vehicles and Part J concerns access to the internet and other electronic communications. Part L concerns access to extremist material. Mr Lange submitted that they were unrelated to the defendant's associations and were not appropriate. However, I consider they are all directed to the overall risk of what may ensue if the defendant does fall prey to an unfortunate association, namely, the commission of a serious terrorism offence. Thus, at least at this stage, they are appropriate. Parts K, M and N of the proposed conditions are ancillary to the provisions that I have identified. Accordingly, I will make an ISO in the terms sought.

Extent of Material

1. [47]

   For some time, the Court has been endeavouring to reduce the material tendered on these applications, especially preliminary hearings. To that end, two matters about the Act should be noted. First, although there is undoubtedly a protective component to these proceedings, they are nevertheless adversarial and they are conducted in accordance with the civil standard. It is for the parties to agree on the facts, and it is incumbent upon the parties to select the material they seek to tender in order to demonstrate the facts they allege. Second, although s 23(3) requires that an application must be supported by certain documentation, it does not necessarily follow that all of that documentation has to be tendered at the hearing of an ISO or ESO.

2. [48]

   Despite the efforts being made by the Court to streamline these proceedings, yesterday, nine folders and a flash drive of material were delivered to my chambers. Six folders were described as a Joint Tender Bundle. They are said to be only a selection of material that was annexed to the affidavits. Only a few of these documents were referred to in submissions. This approach to the provision of material wholly undermines the attempts that have been made to streamline these matters. It is inconsistent with the Civil Procedure Act 2005 which governs these proceedings, as well as various other obligations imposed on the State.

3. [49]

   There are numerous means available to the State to conduct these cases without having to adopt this approach. When this material was sought to be tendered on the hearing, I received it provisionally. I indicated that I would reject the tender of those documents that were not referred to in the oral or written submissions. I now make that ruling. I will make an order requiring the plaintiff to prepare a revised exhibit setting out the documents that have been omitted in accordance with what I have stated.

4. [50]

   Going forward, I will direct the State to adopt one of the means available to it to reduce the material that is required to be tendered, namely s 50 of the Evidence Act 1995. That provision enables the tender of a summary of voluminous evidence. The process of preparing such notices will force the State to identify in advance the facts it seeks to prove, rather than tendering a large amount of material, dumping it on the Court, and making submissions accordingly. My experience in these cases, and the current matter is no exception, is that it is likely that most matters of primary facts are to be agreed upon.

5. [51]

   The Court makes the following orders:

   1. (1)

      An order pursuant to s 24(5) of the Act,