State of New South Wales v Hardy (Final)

1. [1]

   JOHNSON J: By Further Amended Summons dated 1 July 2021, the Plaintiff, State of New South Wales, seeks final orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) concerning the Defendant, Christopher Bruce Hardy.

2. [2]

   The Defendant was born in October 1972 and is now 48 years old. Until events which occurred in 2017, he had no prior criminal history. Up until 2017, the Defendant had worked as a jeweller for a number of years. Prior to 2017, the Defendant had no history of support for any extremist ideology. As will be seen, the events of 2017 brought the Defendant before the criminal courts and then, in 2019, before this Court on an application under the THRO Act.

3. [3]

   This is an unusual case. The Defendant is an intelligent man who has demonstrated disturbing behaviour in the past supportive of extremist ideology. This behaviour is said to be associated with mental health issues. The question for the Court in the present proceedings is whether the Defendant should once again be dealt with under the THRO Act, this being a matter of significant controversy between the parties.

Earlier Proceedings under the THRO Act

1. [4]

   On 1 April 2021, following a preliminary hearing, Harrison J made an order for examination of the Defendant by a qualified psychiatrist and a registered psychologist together with a direction that the Defendant comply with an interim supervision order (“ISO”) subject to specified conditions: State of New South Wales v Hardy [2021] NSWSC 323.

2. [5]

   The ISO has been continued on a number of occasions since that date and the current ISO will expire on 28 July 2021.

3. [6]

   An extended supervision order (“ESO”) under the THRO Act has been ordered on a prior occasion with respect to the Defendant. On 29 April 2019, Button J directed that the Defendant be subject to an ESO for a period of two years: State of NSW v Mathers (No. 2) [2019] NSWSC 473. The name “John Mathers” was utilised as a pseudonym by Button J for the purpose of that hearing because of then pending criminal proceedings against the Defendant: State of NSW v Mathers (No. 2) at [112]-[114].

4. [7]

   Those criminal proceedings have now concluded and will be referred to later in the judgment (at [97]-[98] and [102]-[103]). Accordingly, there is no need for a pseudonym to be utilised with respect to the Defendant’s name in the present judgment. Nor is there any difficulty with reference back to the 2019 judgments of Button J where a pseudonym was used. In fact, reference to those judgments is essential to assist an understanding of the further application brought by the Plaintiff for an ESO with respect to the Defendant.

5. [8]

   Accordingly, to the extent that it is necessary, I direct that the non-publication order made by Button J in 2019 under the Court Suppression and Non-Publication Orders Act 2010 (NSW) be lifted to allow identification of the Defendant as being the subject of the 2019 application under the THRO Act.

The Final Hearing

1. [9]

   The hearing of the Further Amended Summons took place by audio-visual link on 8, 9 and 12 July 2021. Mr James Emmett SC and Mr Anders Mykkeltvedt of counsel appeared for the Plaintiff. Mr Chris O’Donnell SC and Mr Dev Bhutani of counsel appeared for the Defendant.

2. [10]

   A substantial volume of documentary material was tendered on behalf of the Plaintiff and the Defendant. For convenience, two folders of material, including affidavits and reports relied upon by the Plaintiff or the Defendant, were admitted in a single exhibit (Exhibit A).

3. [11]

   In addition to the material in Exhibit A, the Plaintiff tendered two further volumes which contained extensive material with respect to the Defendant, including material which was before Button J for the purpose of the 2019 THRO Act proceedings (Exhibit B).

4. [12]

   Objection was taken on behalf of the Defendant to the tender of a risk assessment report dated 8 February 2021 and a supplementary risk assessment report dated 24 May 2021 prepared by Ahu Kocak, forensic psychologist. Ms Kocak is a Senior Specialist Psychologist, Countering Violent Extremism Programs with Corrective Services NSW. An affidavit of Danielle Matsuo affirmed 7 July 2021 stated that Ms Kocak was absent on medical leave which extended to 16 July 2021. Objection was taken to the reports of Ms Kocak upon the basis that she could not be cross-examined on her reports so that they ought be excluded under s.135 Evidence Act 1995 (NSW). I ruled on 8 July 2021 (T3-4) that the reports should be admitted as evidence at the final hearing, with the weight to be given to them to be assessed in the context of all evidence before the Court at the hearing and in light of submissions from the parties. In determining to admit the reports, I observed, amongst other things, that the risk assessment reports fell within s.25(3)(b) and/or (c) THRO Act so that the Court should have regard to them in fulfilling its statutory function.

5. [13]

   During the course of the hearing, a number of additional documents were tendered as evidence in the proceedings (Exhibits C and D; Exhibits 1 and 2).

6. [14]

   Following the orders made by Harrison J at the preliminary hearing on 1 April 2021, the Defendant was examined by Dr Andrew Ellis, psychiatrist, and Dr Christopher Lennings, psychologist, as court-appointed experts. The report of Dr Ellis dated 17 May 2021 and the report of Dr Lennings dated 24 May 2021 form part of Exhibit A.

7. [15]

   Oral evidence was given at the final hearing by the following persons:

8. [16]

   In advance of the final hearing, counsel had provided extensive written submissions on a range of topics. At the conclusion of the evidence, counsel made closing submissions (T131-183).

An Issue Concerning the Court-Appointed Expert Witnesses

1. [17]

   Before moving to the issues which require determination, reference should be made to an issue which arose in the course of the evidence of the court-appointed expert witnesses.

2. [18]

   As noted earlier, following the order made by Harrison J on 1 April 2021, Dr Ellis and Dr Lennings examined the Defendant and provided reports to the Court with respect to their respective examinations.

3. [19]

   In this respect, the Court made orders under s.24(5) THRO Act appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric or psychological examinations of the Defendant and to furnish reports to the Court as to the results of those examinations and directing the Defendant to attend those examinations. Accordingly, each of Dr Ellis and Dr Lennings were examining the Defendant and reporting on their examinations as a result of an order made under the THRO Act. The term “qualified psychiatrist” is defined in s.4(1) THRO Act to mean “a registered medical practitioner who is a fellow of the Royal Australian and New Zealand College of Psychiatrists”.

4. [20]

   In the course of his examination of Dr Ellis and Dr Lennings, Mr Emmett SC elicited evidence that the legal representatives for the Defendant had spoken to each of Dr Ellis and Dr Lennings after each of them had furnished his report, but prior to the final hearing. Each of Dr Ellis (T48-49, T94-96) and Dr Lennings (T96-100) stated that the telephone discussions which arose from contact made by the legal representatives for the Defendant, occurred after the provision of his report and that the conversation with the legal representatives did not cause either Dr Ellis or Dr Lennings to alter his opinion on any matter.

5. [21]

   The examination of Dr Ellis and Dr Lennings on this topic culminated in a call being made by Mr Emmett SC for records of the conversations which the legal representatives for the Defendant had with Dr Ellis and Dr Lennings (T100-101). At the resumed hearing on 12 July 2021, Mr Emmett SC informed the Court that the Plaintiff did not seek to say anything further on that topic apart from providing an explanation as to why the questions had been asked of Dr Ellis and Dr Lennings in the first place (T167). The legal representatives for the Plaintiff had not been aware that contact of this type had been made with the experts.

6. [22]

   Given the important role of court-appointed experts under the THRO Act (and the Crimes (High Risk Offenders) Act 2006 (NSW)), it is appropriate to make some observations concerning what occurred in this case in the event that this issue arises again in future proceedings.

7. [23]

   An application for an ESO constitutes civil proceedings: s.50(1) THRO Act. Parties to proceedings under the THRO Act have the right to appear, call witnesses and give evidence, cross-examine witnesses and to make submissions to the Court on any matter connected with the proceedings: s.54 THRO Act.

8. [24]

   General provision is made concerning court-appointed experts in Rules 31.46-31.54 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). These provisions in the UCPR are of general application, and provide some guidance in circumstances where experts are appointed by the Court to undertake a particular task, and prepare a report for the Court with respect to that task for use in civil proceedings.

9. [25]

   In practice, where an order for examination by court-appointed experts is made under s.24 THRO Act, the necessary arrangements are made by the solicitor for the Plaintiff, usually a solicitor working within the Crown Solicitor’s Office. It is the solicitor for the Plaintiff who retains the expert witnesses (after consultation with the Defendant’s legal representatives) and provides materials to them and asks questions which are sought to be answered in any report. The reports of psychiatrists or psychologists appointed under s.24 THRO Act are provided to the Crown Solicitor’s Office with the reports being served upon the legal representatives for the Defendant and included, as occurred in this case, in documentary material placed before the Court at the final hearing.

10. [26]

    It is pertinent to note Rules 31.50 and 31.51 UCPR which state:

11. [27]

    The procedure for appointment of a psychiatrist or psychologist to prepare reports under the THRO Act is modelled largely upon the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). The importance of psychiatric or psychological reports from court-appointed experts was emphasised in the second reading speech for the Crimes (Serious Sex Offenders) Bill 2006 (the predecessor to the Crimes (High Risk Offenders) Act 2006 (NSW)). Mr Carl Scully, the Minister for Police, said with respect to the appointment of expert witnesses following a preliminary hearing (Hansard, Legislative Assembly, 29 March 2006):

12. [28]

    It has been observed that the preliminary hearing procedure allows the Court to filter out unmeritorious applications at an early stage and, if interim orders are made, to give the Court “the benefit of the expert opinions of two independent witnesses before making a final decision”: State of New South Wales v Manners [2008] NSWSC 1242 at [9].

13. [29]

    It is important to keep in mind that Dr Ellis and Dr Lennings were appointed under the statutory scheme in the THRO Act, whereby the Court, if satisfied of the requirements at a preliminary hearing, is required by s.24(5) THRO Act to appoint qualified psychiatrists and/or registered psychologists to conduct the examination of a person and report to the Court. This is not a scheme arising from the exercise of discretion by the Court in ordinary civil proceedings to which Rules 31.46-31.54 UCPR usually apply.

14. [30]

    It is of practical importance to note that proceedings under the THRO Act are conducted invariably on behalf of the Plaintiff by the Crown Solicitor’s Office with Legal Aid NSW being the usual (if not invariable) entity representing a Defendant in THRO proceedings.

15. [31]

    The observation of the Court is that highly qualified and experienced expert psychiatrists and psychologists are utilised as court-appointed experts in proceedings under the THRO Act and the Crimes (High Risk Offenders) Act 2006 (NSW). That is so in the present case, where Dr Ellis and Dr Lennings are both well known to the Court as expert witnesses of great experience and the highest reputation in their fields of forensic psychiatry and forensic psychology.

16. [32]

    With the possible exception of Rule 31.50 UCPR (see [26] above), there is no statutory provision or legal principle which prohibits contact by a legal representative for a Defendant in THRO Act proceedings from contacting an expert witness appointed under s.24 THRO Act.

17. [33]

    In my view, there ought be no contact by the legal representative for a Defendant in THRO proceedings with a court-appointed expert prior to the provision of a report by that expert.

18. [34]

    Once the expert witness has provided a report, which is served upon the legal representatives for the Defendant and ultimately provided to the Court, the circumstance may arise where the legal representative for a party wishes to seek clarification from the expert. As Rule 31.50 UCPR suggests, this step requires some caution. Given the time constraints which usually affect final hearings under the THRO Act (and the Crimes (High Risk Offenders) Act 2006 (NSW)), an application for leave from the Court should not be mandatory.

19. [35]

    Rather, as a matter of practice, it would be appropriate for the legal representative for the Defendant to notify the legal representative for the Plaintiff that such contact is sought to be made. That did not happen in this case. If it did, it may be that the controversy which arose at the hearing would not have resulted.

20. [36]

    Likewise, there is no reason why the legal representative for the Plaintiff could not, after giving notice to the Defendant’s legal representatives, contact a court-appointed expert after the provision of a report for the purpose of discussing the contents of the report.

21. [37]

    If there was objection to contact being made with the expert, then leave from the Court may be sought under Rule 31.50 UCPR.

22. [38]

    It may be that, in a probably rare case, any discussion with legal representatives for a party may see an additional or altered opinion arising. In such a case, it would be appropriate (if time allowed) for a supplementary report to be provided which outlined what had led to the expert amending or supplementing the opinion previously expressed in a report.

23. [39]

    Expert witnesses, such as those in the present case, are familiar with the practice of discussion with legal practitioners for parties in advance of giving evidence at a criminal trial or in civil proceedings. That practice should not be discouraged with respect to the final hearing in proceedings under the THRO Act. That said, it is desirable that notice is given inter partes that such a step is to be taken to reduce the prospect of controversy which ended up occupying some hearing time in this case.

24. [40]

    In making these observations, I emphasise that the evidence of Dr Ellis and Dr Lennings was not challenged by the Plaintiff, nor was any criticism directed to them arising from the preparedness of each of them to discuss his report by telephone with the legal representatives for the Defendant. Nor was it suggested that the legal representatives for the Defendant had acted improperly in contacting the experts. Rather, the problem arose from the failure to give notice of the proposed contact.

25. [41]

    I note, as well, that no issue arises in these proceedings involving contact between legal representatives for a party and an expert witness for the purpose of preparation of an expert report. These circumstances can give rise to difficulties by reference to legal professional privilege and the proper role of an expert witness in circumstances such as those considered by Lindgren J in Australian Securities and Investments Commissioner (ASIC) v Southcorp Ltd (2003) 46 ACSR 438; [2003] FCA 804.

26. [42]

    The statutory importance of expert reports ordered under s.24(5) THRO Act should be kept in mind when considering what may be the limits of appropriate contact between legal representatives for the parties and the expert witness appointed by the Court.

The Decision of Button J at the 2019 Final Hearing under the THRO Act

1. [43]

   The 2019 proceedings before Button J concerning the Defendant are of fundamental importance to the present application. The conduct of the Defendant which gave rise to the orders made by Button J in 2019 remains central to the present application for a further ESO.

2. [44]

   Indeed, as will be seen, a principal argument for the Plaintiff is that the basis upon which Button J determined to direct an ESO for a period of two years in 2019 remains unchanged, with there being no true ameliorating developments since then and with the unacceptable risk identified by Button J remaining constant. In these circumstances, it is appropriate to refer to statements made by Button J and associated findings in the 2019 proceedings.

3. [45]

   The index offence, and associated conduct of the Defendant, was described in Button J’s judgment after the preliminary hearing in State of NSW v Mathers [2019] NSWSC 7 at [1]-[29]:

4. [46]

   Following the final hearing, Button J explained the Court’s decision as to why the requirements of s.20(d) THRO Act had been made out. In State of NSW v Mathers (No. 2), his Honour said at [30]-[48]:

Issues on the Present Application

1. [47]

   The principal issues arising for determination in this judgment are the following:

Chronology of Events Concerning the Defendant

1. [48]

   The present proceedings involve a fresh application by the Plaintiff under the THRO Act with respect to the Defendant. I have set out earlier Button J’s recital of the factual background to the 2019 application, together with his Honour’s conclusions under s.20(d) THRO Act concerning the Defendant.

2. [49]

   For the purposes of the present application, it is appropriate to refer, in chronological order, to relevant events concerning the Defendant. It is necessary to keep in mind events that predated the making of the ESO by Button J on 29 April 2019 and subsequent events that assist, as best one can, a contemporaneous understanding of the Defendant for the purpose of these proceedings.

3. [50]

   As noted earlier, the Defendant was born in October 1972 and is now aged 48 years. He completed the Higher School Certificate and commenced university studies, but ceased those studies to become a jeweller. The Defendant completed a TAFE certificate in the jewellery trade.

4. [51]

   The Defendant had an unremarkable upbringing and family life. He has had two significant relationships which he reported had ended due to mental health issues on the part of each partner. He reported experiencing depression some 10 years prior to the ESO application determined by Button J in 2019.

5. [52]

   The Defendant worked as a jeweller, as an employee or self-employed, for more than 20 years. There is no history of significant alcohol or drug use on his part. He has no criminal history prior to the events in 2017.

6. [53]

   From December 2012, the Defendant conducted a jewellery business from leased commercial premises in the Charlestown Arcade, Charlestown. Mr Paul Booker of Ray White Commercial, Newcastle was the commercial property manager with respect to the leased premises.

7. [54]

   From November 2016, the Defendant sent disturbing and threatening emails to Mr Booker. The context for these emails was the Defendant falling into arrears in rent for the leased premises for his jewellery business. On 7 November 2016, the Defendant sent an email stating:

8. [55]

   On 10 November 2016, the Defendant sent an email to Mr Booker stating:

9. [56]

   In late March 2016, the Defendant downloaded files, including 3D printing files for an assault rifle, which was later identified by Scientific Officer Walter Murphy as an imitation firearm (Exhibit A, pages 794EE-794GG).

10. [57]

    On 24 November 2016, the Defendant made enquiries on Gumtree about the purchase of a commercial-grade pressure cooker for $90.00. A pressure cooker was later located at the Defendant’s premises.

11. [58]

    On 18 December 2016, the Defendant downloaded files, including 3D printing files, for an item later identified by Scientific Officer Murphy as a prohibited pistol capable of firing a projectile. The Defendant downloaded, as well, a number of files relevant to the Sovereign Citizen Movement (“SCM”), about which more will be said later in the judgment (at [118]-[132]).

12. [59]

    On 4 January 2017, the Defendant downloaded 3D printing files for an item later identified by Scientific Officer Murphy as a firearm part.

13. [60]

    On 6 January 2017, the Defendant downloaded a large number of files relating to the SCM (Exhibit A, pages 794MM-794OO).

14. [61]

    On 15 January 2017, the Defendant downloaded files including 3D printing files for an Airsoft gun, later identified by Scientific Officer Murphy as an air gun (a prohibited firearm) and for a Cobra trench knife (a prohibited weapon). In addition, the Defendant downloaded a number of files relevant to the SCM.

15. [62]

    On 3 March 2017, the two letters referred to by Button J in State of NSW v Mathers at [21]-[22] (see [45] above) were located at the Parliamentary Office of Jodie Harrison MLA, the Member for Charlestown. Inside the envelopes was material printed from an Internet website, including writings to the effect that the Commonwealth of Australia is a corporation made up of corporations controlled by foreign corporations, a doctrine consistent with the beliefs of the SCM. The envelopes were examined forensically by NSW Police and were later connected to the Defendant following a search of his jewellery store in May 2017.

16. [63]

    On 20 March 2017, the Defendant reported a mould issue in his Charlestown shop to the caretaker of the Charlestown Arcade. In March-April 2017, the Defendant was engaged in a dispute with the agent, Mr Booker, over the apparent mould issue at the leased premises. Mr Booker stated that he had received a “constant barrage of emails and text messages” from the Defendant, with that flow of communications having intensified between March and May 2017. Mr Booker stated that the “emails and texts talk about law and acts that are nonsensical” and that the Defendant had sent Mr Booker “links to conspiracy theory sites” as well as a link to “a death metal site with disturbing themes” (Exhibit A, pages 494-495).

17. [64]

    Between 22 April and 1 May 2017, the Defendant accessed websites relevant to the SCM.

18. [65]

    On 2-3 May 2017, at the suggestion of Mr Booker, police conducted a welfare check on the Defendant at his business premises. In the course of that welfare check and the subsequent execution of a warrant on 3 May 2017, police located at the Defendant’s business premises:

19. [66]

    Police also seized, on 3 May 2017, the Defendant’s “Callmaster” desktop computer which contained evidence of Internet searches in relation to anti-government propaganda, US Army encyclopaedia of explosives, 3D printable Airsoft guns and other 3D printable guns, rocket propulsion, sniper training, survival training, covert entry techniques for CIA spies, a booby trap field manual, a preparatory manual of explosives and “anti-government documents’ (Exhibit B, pages 554-559).

20. [67]

    Over a period of time in 2016 and 2017 which cannot be reliably identified, the Defendant made multiple posts on LinkedIn indicating knowledge of and apparent support for the SCM. Senior Constable Hampton gave evidence concerning the Defendant’s LinkedIn posts and accepted that the time span over which these posts were made could not be identified with any certainty. Comments made by the Defendant in these LinkedIn posts include strong sentiments adverse to politicians and the Australian Government and had the flavour of SCM beliefs in the illegitimacy of government (Exhibit A, pages 609-676) (see, for example, the posts mentioned at [186]-[187] below).

21. [68]

    On 3 May 2017, the Defendant was arrested and charged with possession of an unregistered firearm contrary to s.36(1) Firearms Act 1996 (NSW), possession of prohibited weapons without a permit contrary to s.7(1) Weapons Prohibition Act 1998 (NSW) and sending a document threatening death to Ms Harrison MLA, the latter being an offence under s.31 Crimes Act 1900 (NSW). The Defendant was released on bail.

22. [69]

    On 1 September 2017, the Defendant was again released on conditional bail by the Local Court having been arrested for failing to appear on 30 August 2017 at the Newcastle Local Court.

23. [70]

    The Crown made a detention application in the Supreme Court seeking revocation of the Defendant’s bail. In those Supreme Court proceedings, the Defendant swore an affidavit on 19 September 2017 which he executed using a red ink fingerprint on each page and included other features consistent with SCM beliefs (Exhibit A, page 426). More will be said about this when outlining the expert evidence concerning the SCM (see [127]-[131] below). It should be kept in mind that the Defendant’s conduct concerning this affidavit occurred some six months after he committed the s.31 Crimes Act 1900 (NSW) offence involving the threatening letters to Ms Harrison MLA. The Defendant’s deep interest in the SCM, and adoption of its practices, was manifesting itself over an extended period in 2017, including an important formal document (an affidavit) which he chose to deploy in a bail application before the Supreme Court.

24. [71]

    On 21 September 2017, the Supreme Court revoked the Defendant’s bail for the offences with which he had been charged on 3 May 2017 and he was remanded in custody.

25. [72]

    On 4 December 2017, police served the Defendant with a Firearms Prohibition Order under s.73(1) Firearms Act 1996 (NSW) and a Weapons Prohibition order under s.33(1) Weapons Prohibition Act 1998 (NSW) whilst the Defendant was in custody at the Long Bay Correctional Centre.

26. [73]

    On 4 December 2017, police attached to the New South Wales Fixated Persons Investigation Unit conducted a search of the Defendant’s residence and they observed (but did not seize) a pressure cooker which had been purchased by the Defendant and a USB device stored in the Defendant’s dressing table.

27. [74]

    On 21 February 2018, following pleas of guilty, the Defendant was sentenced for the offences under s.31 Crimes Act 1900 (NSW), s.36(1) Firearms Act 1996 (NSW) and s.7(1) Weapons Prohibition Act 1998 (NSW), by Magistrate Brennan at the Newcastle Local Court, to a total effective sentence of imprisonment for 16 months commencing on 19 September 2017 with a non-parole period of 12 months expiring on 18 September 2018.

28. [75]

    On 18 September 2018, the day before the Defendant’s potential release on parole, the State Parole Authority determined not to release him on parole as “the defendant poses a serious and immediate risk to the safety of the community”.

29. [76]

    On 3 October 2018, whilst the Defendant was still in custody, police executed a search warrant at the Defendant’s residence and sighted a “Cocoon Create” 3D printer in the Defendant’s workshop. Police seized a USB device stored in the Defendant’s dressing table. The USB contained 720 files including 3D printer blueprints, copies of books and other published material evincing anti-government sentiment and the infliction of injury and death in military contexts, including manuals on kidnapping, how to make booby traps, bombs and explosives. Expert analysis of the USB device later revealed that a large number of the files contained digital blueprints for the 3D printing and manufacture of firearms and replica firearms. Expert analysis also established that these blueprints had been placed on the USB stick before the Defendant’s initial arrest by police in May 2017. The Defendant was subsequently charged on 20 November 2018 with offences relating to possession of these blueprints.

30. [77]

    On 9 October 2018, police returned to the Defendant’s residence and seized the 3D printer sighted during searches on 3 May 2017 and 3 October 2018. Subsequent expert examination of the 3D printer concluded that it was capable of producing physical parts from digital blueprints, although the device did not appear to have been used for any significant duration or to create any significant number of objects. Of the files contained on the USB stick, 411 were digital blueprints of what appeared to be firearms, firearm parts or non-firing ammunition suitable for manufacture on a 3D printer.

31. [78]

    On 20 November 2018, whilst still in custody, the Defendant was arrested and charged at Goulburn Police Station with 12 offences of possession of a digital blueprint for the manufacture of firearms contrary to s.51F(1) Firearms Act 1996 (NSW). The Defendant participated in an electronically recorded interview with respect to these matters (Exhibit B, pages 80-138).

32. [79]

    On 21 November 2018, police executed a search warrant at the Goulburn Correctional Centre where they searched the Defendant’s property and seized paperwork including the affidavit which he had executed using red ink thumbprints in September 2017 for the purpose of the Supreme Court bail application (see [70] above).

33. [80]

    Following a preliminary hearing under the THRO Act held on 11 December 2018, Button J made an ISO on 16 January 2019: State of NSW v Mathers.

34. [81]

    On 18 January 2019, the Defendant’s sentences imposed on 21 February 2018 expired. However, he remained in custody, bail refused, in relation to the charges of possession of digital blueprints for the manufacture of firearm offences.

35. [82]

    On 31 January 2019, the ISO ordered by Button J on 16 January 2019 commenced as the Defendant had been granted bail for the possess digital blueprints for the manufacture of firearm offences on the condition that he comply with the ISO.

36. [83]

    On 18 February 2019, Scientific Officer Dominic Raneri undertook an examination of the 3D printer found at the Defendant’s premises and assessed it as being capable of producing physical parts from digital blueprints. The device did not appear to have been used to create any significant number of objects. The printhead was in a non-operational condition due to a blockage, though such blockages were said to be a common occurrence and “are generally easily rectifiable by the typical user”.

37. [84]

    On 29 April 2019, after a final hearing, Button J ordered an ESO with respect to the Defendant for a period of two years: State of NSW v Mathers (No. 2).

38. [85]

    On 14 May 2019, Scientific Officer Walter Murphy provided a report in relation to firearms produced using some of the digital blueprints held by the Defendant, in relation to which charges had been laid on 20 November 2018. One of the firearms was test fired and determined to be in working condition. The other firearm was assessed as substantially duplicating a firearm for which a licence or permit is required.

39. [86]

    On 28 November 2019, the Defendant attended a THRO Psychology session. The summary of the psychologist’s notes from the session recorded:

40. [87]

    On 6 February 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

41. [88]

    On 5 March 2020, the Defendant attended a THRO Psychology session and the VERA-2R and TRAP-18 risk assessment tools were administered. The assessing psychologist noted:

42. [89]

    On 8 May 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

43. [90]

    On 26 June 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

44. [91]

    On 1 September 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

45. [92]

    The psychologist noted on 1 September 2020, referring back to March 2020 and 17 April 2020 as well, that ongoing attempts by both Community Corrections and the psychologist to encourage the Defendant to engage in an assessment with a psychiatrist had been “adamantly refused” by the Defendant.

46. [93]

    On 5 September 2020, the Defendant attended a THRO Psychology session and the VERA-2R and TRAP-18 tools were administered.

47. [94]

    On 23 September 2020, the Defendant attended a THRO Psychology session with a new psychologist who noted, amongst other things, that the Defendant “presented as indifferent and perceives these psychology sessions as being a tick and flick exercise”.

48. [95]

    On 30 September 2020, Ms Rachel Terry, senior psychologist, produced a THRO Psychology Progress Report with respect to the Defendant. The report stated that the Defendant’s overall risk profile through extremist violence, politically motivated violence or terrorism was assessed as being in the moderate range. It was noted that there had been an overall reduction in risk from the initial risk assessment report completed by Ms Kocak in December 2018, but Ms Terry expressed the view that “this decrease is largely reflective of the containment effect of his ESO, highlighting Mr Hardy’s ongoing avoidant behaviours, rather than being reflective of intrinsic change to his primary risk indicators”. It was stated that the Defendant had demonstrated an ability to follow the conditions of his ESO with precision, but that “this has not coincided with a shift in terms of his awareness of the motivation to engage in interventions targeting the areas of risk or vulnerability”.

49. [96]

    On 14 October 2020, the Defendant attended a THRO Psychology session. The psychologist’s notes of this session stated:

50. [97]

    On 20 October 2020, the Defendant appeared at Newcastle Local Court. After the matters had been listed for a defended hearing on several occasions, the Defendant pleaded guilty to a rolled-up count of possession of digital blueprints for the manufacture of firearms contrary to s.51F(1) Firearms Act 1996 (NSW) and the remaining charges were withdrawn. The charge to which the Defendant pleaded guilty alleged that, between 15 January 2017 and 21 September 2017 at Adamstown Heights, he did possess 411 digital blueprints for potential manufacture of 12 different firearms.

51. [98]

    The proceedings were adjourned for sentence on 11 December 2020.

52. [99]

    On 26 October 2020, the Defendant commenced a university course as a prerequisite for a Bachelor of Laws Degree through the open university at the University of New England (Exhibit B, page 60). He obtained a High Distinction for “Introduction to Legal Studies”, the course undertaken in 2020.

53. [100]

    On 4 December 2020, the Defendant was interviewed by Dr Christopher Bench, psychiatrist, pursuant to a direction issued under his ESO. Dr Bench’s report included the following:

54. [101]

    On 9 December 2020, the Defendant had a meeting with Community Corrections. An OIMS note with respect to that meeting stated:

55. [102]

    On 11 December 2020, the Defendant was sentenced by Magistrate Maiden at Toronto Local Court for the offence of possession of digital blueprints for the manufacture of firearms contrary to s.51F(1) Firearms Act 1996 (NSW). He was sentenced to imprisonment for a term of 18 months to be served by way of intensive correction order (“ICO”) with a work order of 350 hours to be supervised by Community Corrections.

56. [103]

    The Defendant’s plea of guilty to a rolled-up count under s.51F(1) enabled the sentencing court to take into account the Defendant’s total criminality, with the advantage to the Defendant that the maximum available sentence is that which would apply to a single count: Johnston v R [2017] NSWCCA 53 at [68]-[69].

57. [104]

    On 18 January 2021, the Defendant attended a PRAXIS (formerly THRO) Psychology session. A summary of this psychologist’s notes stated:

58. [105]

    On 19 January 2021, the Defendant was interviewed again by Dr Bench, psychiatrist. In the course of his report, Dr Bench stated:

59. [106]

    Dr Bench expressed the opinion that the Defendant was suffering from a psychotic illness, likely delusional disorder, at the time of the index offences. Dr Bench stated that, whilst the Defendant may no longer hold such beliefs to delusional intensity, they continued to hold significant emotional content and “he has great difficulty being able to let them go”, with this being indicative of there being “some degree of obsessionality or overvalued ideas with regard to such beliefs”.

60. [107]

    On 8 February 2021, the Defendant attended a further PRAXIS Psychology session. The psychologist noted that the Defendant challenged the validity of the THRO intervention plan and asserted that he was “under duress”. As a consequence of these statements, and due to the Defendant’s overall lack of motivation, unreceptiveness to treatment, lack of meaningful therapeutic engagement and rigidity, a decision was made that PRAXIS Psychology was withdrawing services from the Defendant on 9 February 2021 for ethical reasons.

61. [108]

    On 15 February 2021, Dr Bench wrote to the THRO Unit’s Senior Psychologist concerning psychopharmacological treatment of the Defendant. He expressed the view that treatment with low dose antipsychotic medication may well assist in the Defendant’s case, with the goal being to minimise any such delusional beliefs in order to decrease the Defendant’s anxiety.

62. [109]

    On 1 March 2021, the Defendant attended a PRAXIS Psychology session and was informed of the decision to disengage from the provision of psychological services to him and the reason for the decision. According to the psychologist’s notes, the Defendant “presented as mistrustful and paranoid in his thinking in relation to the information that was presented (ie ‘You’re trying to railroad me like your predecessor’, You are trying to send me back to gaol’)”.

63. [110]

    On 3 March 2021, Donna Howard, Community Corrections Officer, prepared a report for the purpose of s.31(4) THRO Act in which she stated that the continuation of the Defendant’s ESO was not necessary. Ms Howard observed that the Defendant had been “unwavering” in his compliance with the ESO, but that “There remains a level of superficiality to his compliance”. Ms Howard stated that the Defendant “continued to exhibit a fixation or preoccupation with a number of issues” and that his engagement and interactions with PRAXIS Psychology had been described as “superficial, lacking insight, lacking interpersonal awareness and/or emotional regulation”.

64. [111]

    On 8 March 2021, the Defendant attended a PRAXIS Psychology session and stated that he wished to retract his statement of feeling under duress and provided verbal consent to continue engaging with PRAXIS Psychology.

65. [112]

    On 1 April 2021, Harrison J directed that the Defendant be subject to an ISO, following the preliminary hearing in the present proceedings.

66. [113]

    On 10 May 2021, during an interview with Community Corrections, the Defendant acknowledged having developed an interest in the SCM in connection with the dispute with the landlord of his business premises. The Defendant indicated that, upon researching and finding out more information about SCM, he felt compelled to advertise this in a manner to increase the awareness of lay persons, but he denied having an interest in the SCM beyond the issue with his landlord.

67. [114]

    On 17 May 2021, during an interview with Community Corrections, the Defendant denied again having committed the offence of sending/delivering a threatening letter contrary to s.31 Crimes Act 1900 (NSW), claiming he had only pleaded guilty due to incompetent legal advice. The Defendant stated that his current position (being subject to an ISO under the THRO Act) was due to the Crown fabricating evidence or not submitting in its entirety the evidence against him and only that which assisted the Crown’s version.

68. [115]

    On 7 May 2021, Dr Ellis conducted a clinical interview with the Defendant for the purpose of preparation of his report dated 17 May 2021.

69. [116]

    On 20 May 2021, Dr Lennings interviewed the Defendant for the purpose of preparing his report dated 24 May 2021.

70. [117]

    In 2021, the Defendant has been undertaking law studies at the University of New England Law School.

The Origins and Nature of the SCM

1. [118]

   It is appropriate, at this point, to refer to the unchallenged evidence concerning the SCM.

2. [119]

   Expert reports have been furnished by Dr Mark Pitcavage, a Senior Research Fellow with the Anti-Defamation League’s Center on Extremism. Dr Pitcavage is well qualified to assist the Court with respect to extremism, in the present context involving an understanding of the SCM.

3. [120]

   In a report dated 6 December 2018 (Exhibit B, pages 486-518), Dr Pitcavage described the SCM (Exhibit B, page 489):

4. [121]

   Dr Pitcavage explained that Terry Nichols, the accomplice to the Oklahoma City bomber, Timothy McVeigh, was himself an SCM member (Exhibit B, page 490).

5. [122]

   Dr Pitcavage explained the spread of the SCM to Australia and New Zealand (Exhibit B, page 491):

6. [123]

   Dr Pitcavage explained that, because of its nature, the SCM appeals most strongly to those opposed to government authority with this being demonstrated in a number of contexts in Australia as well as the United States. He explained, as well, what is sometimes described as the survivalist movement and the association of promoters of survivalism with extremist views (Exhibit B, pages 493-495). Dr Pitcavage explained that “most survivalists pose no threat to their neighbours or their community and typically seek to be left alone, although, as with any group of people, there can be survivalists who can be angry or volatile” (Exhibit B, page 495). He observes that there is overlap between the SCM and the survivalist subculture (Exhibit B, page 495).

7. [124]

   Dr Pitcavage examined documents, files, photographs, messages and other items taken from the Defendant’s home or retrieved from his computers, hard drives, cell phones and other devices. He stated that “it is abundantly clear from the materials analysed that Mr Hardy has strong attachments to the Sovereign Citizen Movement” and then expanded upon this statement (Exhibit B, page 496):

8. [125]

   Dr Pitcavage explained some features of the Defendant’s conduct which indicated his association with SCM ideology (Exhibit B, page 497):

9. [126]

   Dr Pitcavage explained the concept of “redemption theory” and stated that, from the documents and manuals downloaded by the Defendant in his Internet searches, the Defendant “has evinced a particular interest in redemption theory and its application to Australia and himself” and observed that the Defendant “also seems to have had at least a passing interest in survivalism as many right-wing extremists do” (Exhibit B, page 499).

10. [127]

    In a further report dated 5 February 2021 (Exhibit A, pages 283-306), Dr Pitcavage addressed specific topics. With respect to the Defendant’s affidavit bearing red ink fingerprints with the Defendant’s signature (see [70] above), Dr Pitcavage said (Exhibit A, page 286):

11. [128]

    By way of further explanation for this practice, Dr Pitcavage stated (Exhibit A, page 287):

12. [129]

    By reference to the affidavit marked by the Defendant with red ink thumbprints, Dr Pitcavage stated (Exhibit A, page 289):

13. [130]

    Dr Pitcavage described a further SCM indicator in the Defendant’s affidavit (Exhibit A, page 289):

14. [131]

    Finally, Dr Pitcavage referred to a further feature of the Defendant’s affidavit which had the hallmarks of SCM adherence (Exhibit A, page 289):

15. [132]

    It is appropriate to keep in mind these features of the objective evidence, and Dr Pitcavage’s unchallenged opinions with respect to them, when considering submissions as to the depth of the Defendant’s beliefs concerning SCM in 2017 and what he now says to the various persons who have interviewed him about those beliefs.

The THRO Act – Relevant Provisions and Principles

1. [133]

   The scheme established by the THRO Act for the making of ESOs involves that Act, as well as provisions of the Criminal Code (Cth). In the course of the second reading speech for the Terrorism (High Risk Offenders) Bill 2017 (Hansard, Legislative Assembly, 15 November 2017), the Attorney General, Mr Speakman, observed that the legislation would complement the Commonwealth’s post-sentence detention scheme for Commonwealth offenders (contained in Division 104 of the Criminal Code (Cth)) and that it “builds on structures in place for the New South Wales post-sentence supervision and detention framework for serious sex and violence offenders”.

2. [134]

   In many (but not all) respects, the THRO Act is modelled upon the Crimes (High Risk Offenders) Act 2006 (NSW). There are similarities and differences between the two statutes: Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 at [10]-[11].

3. [135]

   Section 3 states the objects of the THRO Act:

4. [136]

   Sections 10 and 11 THRO Act are of particular significance to the present application. Section 10 provides:

5. [137]

   Section 11 provides:

6. [138]

   The Court’s power to make an ESO is governed by s.20 which provides:

7. [139]

   A “serious terrorism offence” is defined in s.4(1) THRO Act to mean:

8. [140]

   Sections 21 and 25 THRO Act are important to the Court’s determination as to whether an ESO should be ordered. Section 21 provides:

9. [141]

   Section 25 THRO Act provides:

10. [142]

    If an ESO is made, s.26 THRO Act deals with the term or duration of the order which cannot exceed a period of three years from the day on which it commences.

11. [143]

    Section 29 provides for the imposition of conditions under an ESO.

12. [144]

    The term “serious terrorism offence” as defined in s.4(1) THRO Act has been described as broad, extending to a wide variety of preparatory, planning and completed offences as contained in ss.101 and 102 Criminal Code (Cth): State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [35]-[42].

13. [145]

    In considering, for the purposes of s.20(d) THRO Act, whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO, the Court must keep in mind what was said by the Court of Appeal (Basten, Macfarlan and Leeming JJA) in State of New South Wales v Naaman (No. 2) (2018) 365 ALR 179; [2018] NSWCA 328 at [29]:

14. [146]

    In State of New South Wales v Fayad (Final) [2021] NSWSC 294, Wright J referred (at [25]) to the requirement under s.20(d) THRO Act for the Court to be satisfied to a “high degree of probability”:

15. [147]

    The expression “unacceptable risk” is not defined in the THRO Act. As Wright J observed in State of New South Wales v Fayad (Final) at [32], in light of the authorities concerning the same wording in the Crimes (High Risk Offenders) Act 2006 (NSW), this phrase is to be given its everyday meaning in its context and having regard to the objects of the THRO Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58]. The test whether a person poses an unacceptable risk is an evaluative one that requires the exercise of discretionary judgment: Lynn v State of New South Wales at [82].

16. [148]

    In State of New South Wales v Fayad (Final), Wright J summarised helpfully other principles to be applied in application of the unacceptable risk test (at [33]-[34]):

17. [149]

    These authorities make clear that it is necessary for the Court to determine the application by reference to a state of satisfaction based upon the evidence and not “mere speculation”. The Plaintiff’s case relies upon consideration of the totality of the evidence which is not to be looked at in a piecemeal fashion. In this respect, I will consider the evidence in accordance with what was said in State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [161]-[162]:

18. [150]

    Insofar as the Plaintiff’s case is based upon the drawing of an inference or inferences, I bear in mind that, for an inference to be reasonable, it must rest upon something more than mere conjecture: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47]. There is a very real distinction between drawing an inference from facts disclosed in evidence and engaging in speculation: Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [109]-[110].

19. [151]

    In Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; [2021] HCA 4, Kiefel CJ, Bell, Keane and Steward JJ noted (at [46]) the statement of Spigelman CJ in Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121 at [66] concerning the breadth of offences (including preparatory acts) provided for in the Criminal Code (Cth), and then stated (emphasis added):

20. [152]

    With respect to the specification of a “serious terrorism offence” for the purpose of s.20(d) THRO Act, I remain of the view expressed in State of New South Wales v Fayad (Preliminary) at [276]:

Has the Plaintiff Established on the Balance of Probabilities that the Defendant is a Convicted NSW Terrorism Activity Offender Under s.20(c)(iii) THRO Act?

1. [153]

   It is helpful to note the way in which issues under this heading emerged during the exchange of written submissions by the parties in advance of the final hearing.

2. [154]

   In written submissions dated 31 May 2021, Mr Emmett SC submitted that, as found by Button J in 2019, the Defendant is a “convicted NSW terrorism activity offender” under ss.10 and 20(c)(iii) THRO Act. It was noted that Button J determined that the Defendant is a convicted NSW terrorism activity terrorism offender because, in accordance with s.10(1)(c)(i) THRO, he had previously made a statement advocating support for violent extremism: State of NSW Mathers (No. 2) at [13]-[22].

3. [155]

   Notwithstanding the Defendant’s recent denial that he wrote the message on the envelopes directed to Ms Harrison MLA, the Plaintiff submitted that there is nothing that could sensibly allow the Court to depart from the previous findings that the Defendant was, in fact, responsible for the relevant text contained in the letter.

4. [156]

   In these circumstances, the Plaintiff submitted that this Court should adopt the reasoning of Button J in State of NSW v Mathers (No. 2) (see [46] above) that the threat marked on the envelopes constituted a “statement … advocating support for … violent extremism”.

5. [157]

   In written submissions dated 15 June 2021, Mr O’Donnell SC submitted that the Court should not make a finding that the Defendant is a convicted NSW terrorism activity offender under s.10(1)(c)(i) THRO Act. It was submitted that the term “advocating support” directs attention to the intention or purpose of conduct, not merely its objective character in terms of words and actions. To show “support” for a terrorist or violent extremism, it was submitted, requires active approval or encouragement.

6. [158]

   It was submitted that the requirement for an intentional element in “advocating support” is consistent with the objects in s.3 THRO Act. Reliance was placed upon the statement of Bathurst CJ in Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [59] concerning s.10(1)(c)(ii) THRO Act. It was submitted that this reasoning should be applied as well to s.10(1)(c)(i) THRO Act.

7. [159]

   Reliance was placed, as well, upon the judgment of the Court of Appeal in Cheema v State of New South Wales at [65] concerning s.10(1A)(a)(ii) THRO Act.

8. [160]

   Mr O’Donnell SC submitted that the overwhelming weight of the medical evidence indicated that the Defendant was suffering from transient delusions at the time of the commission of the index offence under s.31 Crimes Act 1900 (NSW). In this regard, reference was made to opinions expressed by Dr Kerri Eagle, Dr Katie Seidler, Dr Bench, Dr Ellis and Dr Lennings.

9. [161]

   If it be accepted that the Defendant was suffering from delusions at the time of the index offence, it was submitted that the Court needs to make determinations on the following matters:

10. [162]

    It was submitted for the Defendant that both questions should be answered in the negative and that any other finding would be speculative. If the Court accepted this submission, it was noted that it would not be necessary for the Court to proceed with a risk assessment for the purpose of s.20(d) THRO Act.

11. [163]

    In written submissions in reply dated 28 June 2021, the Plaintiff responded to the Defendant’s submissions which, by reference to the suggested transient delusional state of the Defendant, challenged the conclusion that he was a convicted NSW terrorism activity offender under s.10(1)(c)(i) THRO Act.

12. [164]

    The Plaintiff submitted that the Defendant was seeking to revisit a matter that was the subject of the Court’s determination by Button J in 2019 and that the Defendant is estopped from doing so. Reliance was placed upon principles of issue estoppel in Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 at 531; [1939] HCA 23 and Ekes v Commonwealth Bank of Australia (2013) 313 ALR 665; [2014] NSWCA 336 at [110]-[112].

13. [165]

    The Plaintiff submitted that application of these principles ought lead to the conclusion that the Defendant is prevented from seeking now to assert that he has not advocated support for terrorist acts or violent extremism within the meaning of s.10(1)(c)(i) THRO Act.

14. [166]

    In this regard, it was submitted that:

15. [167]

    In addition to the issue estoppel argument, the Plaintiff relied upon the fact that the Defendant had pleaded guilty to the index offence whilst represented and that there had never been an application to withdraw the guilty plea.

16. [168]

    By pleading guilty to the index offence, it was submitted that the Defendant was taken to have sent or delivered the threatening envelope intentionally or recklessly and knowing of its contents.

17. [169]

    Mr Emmett SC noted that the extent to which a person’s guilty plea for a particular offence is able to be revisited does not appear to have been the subject of consideration in the context of the THRO Act. It was submitted, however, that a number of authorities considering the question in the context of administrative tribunals presented analogous questions. In this respect, reference was made to Secretary, Department of Justice and Regulation v LLF (A Pseudonym) [2018] VSCA 155 at [42].

18. [170]

    It was submitted for the Plaintiff that the Court’s jurisdiction to make an ESO under the THRO is dependent on, amongst other things, the Defendant’s conviction for the index offence. That being so, it was submitted that the essential factual basis of his conviction (including the mental element) is not susceptible to challenge before this Court. If that were not so, it was submitted that the Court could be required to conduct a re-examination of criminal convictions in the context of proceedings under the THRO Act (and the analogous Crimes (High Risk Offenders) Act 2006 (NSW)), and that doing so would potentially place an enormous burden on the Court and have the potential to undermine the finality of a determination of guilt made by operation of the criminal justice system. In addition, it was argued that it would raise the spectre of inconsistency between the decisions of this Court and those made by courts dealing with criminal proceedings: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 at [42]-[43].

19. [171]

    It was submitted for the Plaintiff that there are a number of features of the statutory regime that would stand against a conclusion that allowed the course proposed by the Defendant. These features included:

20. [172]

    It was submitted for the Plaintiff that s.11(c) allows for consideration of the evidence adduced in proceedings for the relevant offence, however, that is clearly designed to permit consideration of the wider circumstances of an offence and does not suggest that the THRO Act contemplates a reconsideration of whether the elements of the relevant charge were made out.

21. [173]

    Mr Emmett SC noted that there are some potential exceptions to the operation of issue estoppel that warrant consideration.

22. [174]

    Firstly, generally speaking, the relevant statutory scheme may allow for relitigation of matters that would otherwise be precluded. The Plaintiff submitted that s.10 THRO Act does not include any exception to the operation of issue estoppel principles. It was noted, however, that one aspect of the THRO Act might be taken to suggest that the legislature intended to exclude the operation of issue estoppel in the context of s.10. Specifically, s.12 THRO Act allows for declarations to be sought that a person is a convicted NSW terrorist offender, a convicted NSW underlying terrorism offender or a convicted NSW terrorism activity offender and provides for the expiry of a declaration that a person is a convicted NSW terrorism activity offender after a period of 15 months: s.12(5) THRO Act.

23. [175]

    To the extent that this may suggest that the legislature contemplated the possibility that the question whether a person is a convicted NSW terrorism activity offender might be relitigated in future proceedings, the Plaintiff submitted that any exception to the principle of issue estoppel created by s.12 are limited to declarations sought under that section.

24. [176]

    It was submitted that the fact that a declaration under s.12 is subject to expiry should not be taken to undermine the operation of issue estoppel generally in respect of the THRO Act.

25. [177]

    Mr Emmett SC noted authority which suggests that there may be a more general exception to the operation of the principles relating to issue estoppel arising from “special circumstances” where estoppel does not operate: Arnold v National Westminster Bank plc [1991] 2 AC 93 at 108-109.

26. [178]

    It was noted that the applicability of such an exception has not been considered by the High Court of Australia and that intermediate appellate courts have either stated that there is no such exception to issue estoppel under Australian law or have doubted the existence of such an exception: Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at [434]-[437], [460]-[487]; Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International (2021) 389 ALR 612; [2021] FCAFC 77 at [339].

27. [179]

    Even if there were an exception to the principle of issue estoppel, it was submitted for the Plaintiff that the relevant conditions would not be met in the present case. In this respect, it was submitted that the evidence concerning transient delusions at the time of commission of the index offence was known at the time of the 2019 decision of Button J. The opinions of Dr Eagle and Dr Seidler were expressed in the context of the Plaintiff’s first application determined in 2019. It was submitted that there had not, in truth, been any significant development in the evidence, with the evidence of Dr Bench, Dr Ellis and Dr Lennings simply reinforcing evidence that was available at the time of the 2019 decision.

28. [180]

    It was submitted that the additional expert opinion evidence on this issue could have been adduced with reasonable diligence so that, in any event, the Defendant could not satisfy the special circumstances exception, as explained in Arnold v National Westminster Bank.

29. [181]

    If, contrary to the Plaintiff’s primary submission, the Defendant was permitted to reagitate the issue of whether he advocated support for terrorist acts or violent extremism, the Plaintiff submitted that there was nevertheless no basis to depart from the reasoning of the Court in 2019.

30. [182]

    It was submitted that advocacy of support for violent extremism can, in certain circumstances, readily be inferred from an act itself: State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [48]. To threaten to engage in particular conduct, it was submitted, must be to advocate support for that conduct.

31. [183]

    To the extent that the Defendant sought to rely upon Lawrence v State of New South Wales at [59], it was submitted that there was an important distinction between s.10(1)(c)(ii) (regarding associations) and s.10(1)(c)(i) THRO Act. It was submitted that advocating support for violent extremism may well provide an indicator of the risk of a person committing a serious terrorism offence irrespective of whether, at the time they were advocating support, the person was affected by some form of delusion or other disorder.

32. [184]

    In any event, it was submitted for the Plaintiff that the evidence regarding the Defendant’s delusional disorder did not suggest that it was such as to render him unfit to be tried at the time of the index offending. Nor, it was submitted, was it of a quality that would have justified a finding of not guilty by reason of mental illness.

33. [185]

    Finally, should the Court accede to the Defendant’s attempt to relitigate the point, it was submitted for the Plaintiff that the Defendant is a convicted NSW terrorism activity offender, not only because of the s.31 Crimes Act 1900 (NSW) offence, but also because of his other online activities. In this respect, the Plaintiff noted that the approach taken to the proceedings in its primary submissions was based upon the finding in the 2019 proceedings.

34. [186]

    In this respect, the Plaintiff relied upon the Defendant’s LinkedIn posts which included:

35. [187]

    Reliance was placed, as well, upon references in the Defendant’s posts to “treason”, on a number of occasions, on the part of the government or particular government figures and references to the Australian Government as a “corporation”, an assertion which the Plaintiff submitted was consistent with the SCM-related material contained in the envelope addressed to Ms Harrison MLA that gave rise to the offence under s.31 Crimes Act 1900 (NSW).

36. [188]

    It was submitted that these posts made clear that the Defendant held extreme political views regarding the Australian Government’s legitimacy and the commission of treason by political figures. The Defendant’s posts publicly advocated violence against the government and political figures on the basis of its illegitimacy, treason and the use of fluoride by the “government corporation”. In doing so, the Plaintiff submitted that he advocated support for violence in furtherance of his extreme political views.

37. [189]

    The Plaintiff accepted that this was an alternative case in chief and sought leave to advance that case in submissions. It was noted that the first time the Defendant indicated that he wished to reagitate the s.10(1)(c)(i) question was in his submissions of 15 June 2021.

38. [190]

    If the Defendant’s point about the index offence was a good one (which was denied by the Plaintiff), it was submitted that the protective purposes of the THRO Act required the Court to consider any alternative basis on which the THRO Act might be engaged, at least provided it could do so fairly to both parties. It was submitted for the Plaintiff that this alternative case was based on the same evidence that is before the Court and there was ample time for the Defendant to respond to it at the hearing.

39. [191]

    In written submissions in reply dated 6 July 2021 (permitted by leave of the Court), Mr O’Donnell SC responded to the Plaintiff’s submissions with respect to questions of issue estoppel, traversal of the guilty pleas, the intentional element of terrorism offences and the Plaintiff’s alternative basis arising from the Defendant’s LinkedIn posts.

40. [192]

    It was submitted that the Plaintiff’s primary issue estoppel argument ought be rejected. The Defendant submitted that the scheme of the THRO Act required the threshold issue under s.20(c) to be reconsidered and re-established each time a further ESO was sought against a person, and that reconsideration must be on the evidence relevant and available at the time of the further application.

41. [193]

    It was submitted that the THRO Act places no restriction on the ability of the Plaintiff to seek a second or subsequent ESO against an eligible offender but equally, does not abrogate any of the four requirements in s.20 that need to be re-established on each occasion before the making of a second or subsequent order against that person. It was submitted that this meant that each of the requirements under s.20, including the s.20(c) requirement, needs to be established afresh on every application for an ESO against that person whether it be the first, second or subsequent application.

42. [194]

    The Defendant submitted that, had the legislature intended otherwise, it would have been made abundantly clear in the THRO Act and a stand-alone test (like s.12) would have been enacted. Instead, the requirement under s.20(c) had been placed alongside the “unacceptable risk” test in s.20(d), which is undoubtedly a matter that needs to be determined separately and afresh at each and every application.

43. [195]

    It was submitted that this construction is consistent with the remainder of the THRO Act. By reference to s.12, it was submitted that, under s.12(5)(a), a declaration only has a 15-month period of validity. It would be inconsistent to conclude that the legislature intended to limit the period of declarations, but intended for a similar finding made under s.20(c) to be fixed in perpetuity.

44. [196]

    For this reason, it was submitted that no issue estoppel applies in the present case because the decision of Button J on the s.20(c) threshold issue was not final: Ekes v Commonwealth Bank of Australia at [110]. It only applied for the duration of the ESO made by Button J in 2019. It does not apply to the present application for a second ESO, where the threshold issue under s.20(c) must be reconsidered on the basis of the relevant evidence now available on that issue, including the evidence in the reports of Dr Ellis and Dr Lennings.

45. [197]

    It was submitted for the Defendant that one reason why s.20(c) needs to be established at the time of each application is because terrorism is a fluid concept, the definition of which will change over time. Reliance was placed upon the obiter statement of the Court of Appeal in Cheema v State of New South Wales at [84] concerning the evolving nature of terrorism.

46. [198]

    It was submitted for the Defendant that, taken to its extreme, the Plaintiff’s interpretation would mean that the fact that Button J made a finding in 2019 that the Defendant was a “convicted NSW terrorism activity offender” would continue to ground an application for an ESO against the Defendant even 10 or 20 years into the future, no matter what the state of the evidence on the question was at that time. Considering that the THRO Act gives what was described as an unparalleled ability to restrict liberty that does not rest on a finding of guilt, it was submitted that such a broad interpretation should be rejected.

47. [199]

    If the Court did not find that the statutory scheme required a fresh determination under s.20(c), the Defendant submitted that this matter falls within the special circumstances exception to the general rule of issue estoppel. Reliance was placed upon the explanation of issue estoppel in Cassegrain v Gerard Cassegrain & Co Pty Ltd (2013) 305 ALR 648; [2013] NSWCA 454 at [94].

48. [200]

    The Defendant submitted that the special circumstances in this case arose from three factors:

49. [201]

    With respect to the Plaintiff’s submissions concerning traversal of the Defendant’s plea of guilty, it was acknowledged that the Defendant’s plea of guilty constituted a formal admission of the elements of the s.31 Crimes Act 1900 (NSW) offence.

50. [202]

    It was submitted that the Defendant’s plea of guilty was not an admission to advocating support for violent extremism and that this was not an element of the index offence. In oral submissions at the final hearing (T154), Mr O’Donnell SC made clear that the Defendant was not seeking to go behind the conviction for the s.31 Crimes Act 1900 (NSW) offence and that he was not “seeking in effect a de facto traversal of the plea”.

51. [203]

    It was submitted that the Plaintiff needs to establish something separate from and additional to the elements of the s.31 Crimes Act 1900 (NSW) offence, that is, that the Defendant was advocating support for violent extremism. It was submitted for the Defendant that, given the medical evidence that the Defendant was suffering from transient delusions at the time of the index offence, this additional matter cannot be established by the Plaintiff.

52. [204]

    With respect to the Plaintiff’s reliance upon the Defendant’s LinkedIn posts as an alternative basis for a finding that the Defendant is a “convicted NSW terrorism activity offender”, the Defendant objected to the Plaintiff seeking to reformulate its case at this late stage. It was submitted that it would be unfair to the Defendant to allow the Plaintiff to rely upon this different case and that the Defendant was not in a position to meet this case in the short timeframe available.

53. [205]

    Submissions were made concerning aspects of the LinkedIn screenshots and the difficulty in appropriately dating them. It was submitted that, given the timeframe, the Defendant was precluded from engaging an expert to provide evidence on the effect and reliability of this evidence.

54. [206]

    Even if the Court did grant the Plaintiff leave to rely upon this alternative case, it was submitted for the Defendant that the LinkedIn posts did not ground a finding that the Defendant has “advocated support” for violent extremism for the purpose of s.10(1)(c)(i) THRO Act. It was submitted that the evidence indicated that the Defendant was suffering from transient delusions at the time of the index offence so that, whilst he was labouring under those delusions, he would have been incapable of advocating support as required by the legislative test.

55. [207]

    With respect to the intentional element of terrorism offences, it was submitted for the Defendant that the THRO Act is solely concerned with the commission of serious terrorism offences and is not designed to prevent acts, even acts that cause widespread harm, unless those acts are performed alongside the double intention requirement in order to be classified as a terrorist act.

56. [208]

    It was submitted for the Defendant that the approach suggested by the Plaintiff was contrary to the approach adopted by Ierace J in State of New South Wales v Dickson (Final) [2020] NSWSC 100 at [76].

57. [209]

    I have set out, in some detail, the cascading arguments advanced by the parties concerning the element contained in s.20(c) THRO Act.

58. [210]

    Arguments advanced with respect to the proper construction of s.20(c) THRO Act by reference to the Defendant’s plea of guilty, issue estoppel and the capacity to relitigate matters associated with those issues have not been considered by this Court in any earlier decisions under the THRO Act or the related legislation in the Crimes (High Risk Offenders) Act 2006 (NSW).

59. [211]

    If the question involved solely the conviction for an offence, such as “a convicted NSW terrorist offender” under s.8, then there would be no real capacity to revisit the conviction for a specific offence which would constitute the requirement under s.20(c)(i) THRO Act.

60. [212]

    However, here the Plaintiff relies upon s.20(c)(iii) and the extended statutory concept of “a convicted NSW terrorism activity offender” as defined in ss.10 and 11 THRO Act. These concepts involve a combination of a conviction and further circumstances or elements arising from the particular part or parts of ss.10 and 11 which are relied upon in the particular case. Accordingly, the position is not as simple as one where the conviction itself forms the sole foundation under s.20(c).

61. [213]

    For the purpose of s.10(1), the Plaintiff relies upon the offence under s.31 Crimes Act 1900 (NSW), which is a “NSW indictable offence” as defined in s.4(1) THRO Act. That is the first element to be satisfied to render the Defendant a “convicted NSW terrorism activity offender” and it is satisfied in this case.

62. [214]

    The second element relied upon by the Plaintiff before Button J, and again on this application, is that under s.10(1)(c)(i) whereby the Defendant advocated support for any terrorist act or violent extremism by his conduct concerning the threatening letter delivered to Ms Harrison MLA which gave rise to the s.31 Crimes Act 1900 (NSW) offence. In considering whether that second element is made out, the Court should have regard to factors identified in s.10(1A) and s.11 THRO Act.

63. [215]

    The second element may involve factual matters which lie outside the boundaries of the particular “NSW indictable offence” which is relied upon. Here, however, the Plaintiff argued successfully before Button J, and argues again on this application, that the advocacy in support for any terrorist act or violent extremism arose from the s.31 Crimes Act 1900 (NSW) offence itself, although with this aspect fortified by the Defendant’s conduct surrounding that offence, including his LinkedIn postings.

64. [216]

    The Defendant should not be allowed to go behind his conviction following his plea of guilty to the offence under s.31 Crimes Act 1900 (NSW) or, for that matter, his conviction, following his further plea of guilty, for the offence under s.51F(1) Firearms Act 1996 (NSW).

65. [217]

    The Defendant did not seek leave to withdraw his pleas of guilty before a criminal court, nor did he seek to appeal against his convictions nor make application under Part 7 Crimes (Appeal and Review) Act 2001 (NSW) with respect to these matters.

66. [218]

    However, the Defendant is entitled to rely upon such evidence as is before the Court at the present hearing concerning aspects of his conduct which gave rise to those offences. This is not for the purpose of seeking to advance a defence of mental illness in these civil proceedings. The time for advancing a defence of mental illness in criminal proceedings has long passed, so that the Court should not seek to apply those principles (as summarised in R v Kemball [2020] NSWSC 1559 at [13]-[17]) in these civil proceedings.

67. [219]

    There is a broad analogy, in this respect, with disciplinary proceedings brought against a medical practitioner based solely upon a conviction as opposed to the broader complaint that the medical practitioner is not of good character. In Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171, the Court of Appeal (Meagher JA, Whealy JA agreeing, Basten JA not deciding this question), said at [80]-[82]:

68. [220]

    Meagher JA continued at [83]:

69. [221]

    Meagher JA stated (at [101]-[104]):

70. [222]

    In Secretary to the Department of Justice and Regulation v LLF, the Victorian Court of Appeal (Beach, McLeish and Niall JJA) said at [42] (footnotes omitted):

71. [223]

    Having regard to the principles summarised in Sudath v Health Care Complaints Commission (which assist by analogy) and the fact that it is for the Plaintiff to establish the s.20(c) requirement, the Court may have regard to further evidence with respect to surrounding circumstances which impacted upon the commission of the offence or offences.

72. [224]

    In 2019, Button J found that the Defendant was a “convicted NSW terrorism activity offender” for the purpose of s.20(c)(iii) THRO Act. That finding played an indispensable part in the imposition of an ESO for two years in 2019. The decision of Button J was not challenged by way of appeal.

73. [225]

    The present proceedings constitute fresh proceedings in which the Plaintiff must establish the elements contained in s.20 THRO Act. The statute modifies the elements to an extent in that, for the purpose of s.20(a)(ii), that element may be satisfied where (as here) the person is subject to an existing ESO or ISO, having served the sentence of imprisonment for a “NSW indictable offence”.

74. [226]

    The Plaintiff is entitled to place before the Court the facts of the “NSW indictable offence” relied upon, the s.31 Crimes Act 1900 (NSW) offence, and the sentencing remarks which gave rise to the conviction and penalty. In THRO Act proceedings, it is not open to the Defendant to seek to challenge the conviction or sentence by way of an attempt to go behind a guilty plea or an attempt to rely upon a defence of mental illness.

75. [227]

    However, it is open to a party to a second or subsequent application under the THRO Act to adduce evidence which bears upon the additional element in s.10(1)(c)(i) THRO Act, being the conduct of the person which is said (in this case) to advocate support for any terrorist act or violent extremism.

76. [228]

    For example, it may be open to the Plaintiff to adduce further evidence of alleged later admissions, relating to the conduct under s.10(1)(c)(i) THRO Act which had been relied upon by the Court in the earlier application under that Act. Further, if the Defendant had available other evidence which was capable of weakening or undermining the s.10(1)(c)(i) finding made on the earlier application, there is no impediment to that evidence being allowed.

77. [229]

    This approach does not operate to challenge the conviction for the “NSW indictable offence”. Rather, it permits the giving of further evidence which may bear upon the second element in s.10(1)(c)(i) THRO Act.

78. [230]

    I do not think that the issue estoppel principle operates to prevent this approach to a second or subsequent application under the THRO Act. The conviction for the “NSW indictable offence” is a fixed element. However, additional evidence may be adduced concerning the second element in s.10(c)(i), which may serve to strengthen or weaken the foundation for the finding made at the earlier application.

79. [231]

    I have reached this conclusion by way of construction of the THRO Act and bearing in mind, by analogy, the approach outlined in Sudath v Health Care Complaints Commission. I accept that the statutory scheme under the THRO Act allows a party to relitigate the s.10(1)(c)(i) issue in a subsequent fresh application for an ESO. In this respect, I do not accept the Plaintiff’s submission referred to at [174] above.

80. [232]

    Given this conclusion, it is not necessary to consider further the submission made concerning issue estoppel and the possible “special circumstances” exception to that principle.

81. [233]

    It is the fact that there was evidence before Button J in 2019 which led his Honour to conclude that “emotional disturbance or mental illness of some kind had played a role in the bizarre actions” of the Defendant: State of NSW v Mathers (No. 2) at [37] (see [46] above).

82. [234]

    I am satisfied that the Court should adopt the finding made concerning s.20(c)(iii) as reached by Button J in the 2019 proceedings. By the time of the final hearing when his Honour made the operative finding under s.20(c)(iii), the parties had available to them the reports of Dr Eagle and Dr Seidler, which had raised the existence of a delusional state on the part of the Defendant at the time of the index offence. Button J’s finding was made having heard the parties on the evidence which included that evidence.

83. [235]

    The additional evidence adduced at the present hearing from Dr Bench, Dr Ellis and Dr Lennings merely serves to repeat or emphasise that aspect.

84. [236]

    In any event, I do not consider that the existence of a transient delusional state at the time of the index offence stands in the way of a finding adverse to the Defendant for the purpose of s.20(c)(iii) in this case.

85. [237]

    Further, I do not consider that the evidence concerning the Defendant’s mental state in 2017 stands in the way of a finding that he did, at that time, advocate support for violent extremism and that he intended to do so. To the extent it is necessary, I respond to the issues posed by the Defendant (at [161] above) by expressing my satisfaction that the Defendant was capable of forming the intention required for advocating support for violent extremism and that he intended to achieve this object through the s.31 Crimes Act 1900 (NSW) offence. This conclusion is fortified by reference to the Defendant’s conduct over an extended period of time in 2017, including his LinkedIn posts. I have kept in mind, as well, that the Defendant himself has denied, and continues to deny, that he was subject to a delusional state at the time of the s.31 Crimes Act 1900 (NSW) offence.

86. [238]

    Accordingly, I am satisfied for the purpose of these proceedings, that the Defendant is a “convicted NSW terrorism activity offender” for the purpose of s.10(1)(c)(i) and s.20(c)(iii) THRO Act.

87. [239]

    In these circumstances, it is not necessary to consider the Plaintiff’s alternative argument based solely upon the Defendant’s LinkedIn posts (see [185]-[190] above). This evidence itself is relevant to the issues raised in these proceedings, including the s.20(c)(iii) question. The Plaintiff has always relied upon the LinkedIn posts and did so in the proceedings before Button J, as well as in its primary submissions at this final hearing. This is not new evidence, although the emphasis which is sought to be placed upon it by the Plaintiff has changed to the extent that it was relied upon in support of an alternative argument as well.

88. [240]

    There is no unfairness to the Defendant in the Plaintiff emphasising the LinkedIn posts in the way in which it has sought to do.

89. [241]

    I am satisfied that the Plaintiff has demonstrated that the Defendant falls within s.10(1)(c)(i) and s.20(c)(iii) THRO Act.

Assessment of the Risk Posed by Defendant Without Evidence from the Defendant

1. [242]

   Before turning to the s.20(d) issue, some further observations are pertinent.

2. [243]

   As the submissions make clear, the determination of the present application involves an assessment of aspects of the Defendant’s behaviour, beliefs and other thought processes not just in 2017, but at the present time. What the Defendant has said recently in interviews and assessments concerning his past conduct and beliefs is important to the resolution of this application. The task for the Court under s.20(d) is to make an assessment concerning the Defendant for the future, but with his present thoughts and beliefs being a most important factor to assess in undertaking the risk assessment process required under the THRO Act.

3. [244]

   In circumstances where the Defendant has not given evidence himself in these proceedings, the Court must do the best it can, working off the accounts given by the Defendant to others as contained in reports and in the evidence of witnesses who testified at the final hearing.

4. [245]

   The Court has not been able to make an assessment of the Defendant directly. In the context of sentencing, it has been said that assessment of the genuineness and value of remorse is likely to be better informed in circumstances in which it is expressed by an offender directly (that is, face-to-face by way of evidence), as remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction: Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39].

5. [246]

   In making this observation, I am not seeking to equate an assessment of remorse in sentencing proceedings with the task to be undertaken by the Court at a hearing under the THRO Act. It is the Plaintiff which bears the onus of proof with respect to the elements contained in s.20 THRO Act. The Defendant does not bear any onus of proof on the application. Nor should any inference be drawn adverse to the Defendant because he has not given evidence.

6. [247]

   However, in circumstances where the Defendant has given varying accounts over the years, and where a number of health professionals have noted that there is an issue of credibility to be considered with respect to him, the absence of the opportunity for the Court to undertake its own assessment of the Defendant bears upon the outcome of the application.

7. [248]

   This is especially so as, despite his pleas of guilty to the offences under s.31 Crimes Act 1900 (NSW) and s.51F(1) Firearms At 1996 (NSW), the Defendant has denied his guilt of those offences in his various discussions with persons for the purpose of this application.

8. [249]

   In addition, although it is submitted on his behalf that the Defendant was suffering from a transient delusional state at the time of the s.31 Crimes Act 1900 (NSW) offence in March 2017 and that this should be taken into account in his favour on the present application, the Defendant himself has denied that he was subject to any delusion at that time.

9. [250]

   As the various health professionals and experts who have reported on the Defendant have made clear, it is for the Court, and not the individual health professional, to undertake the necessary risk assessment for the purpose of the THRO Act. The Court does not, in some way, delegate that function to expert witnesses, although the reports of expert witnesses who have examined the Defendant are very important considerations to be taken into account under s.25 THRO Act.

10. [251]

    Rather, the Court is presented with troubling features concerning the Defendant, originating from his own extraordinary conduct in 2017 which gave rise to the charges to which he has pleaded guilty and been sentenced without any appeal being brought with respect to those findings. The Defendant has not sought leave to withdraw his plea of guilty with respect to the offences, a course which is itself attended by significant difficulty: Wong v Director of Public Prosecutions (DPP) (2005) 155 A Crim R 37; [2005] NSWSC 129 at [33]-[39], applying Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 and Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46. The Defendant’s convictions, arising from his pleas of guilty, stand and ought be given full weight.

11. [252]

    Further, it might be said that the Defendant’s continuing vigorous challenge to what was clearly established guilt may be indicative of a lack of insight into his offending and be relevant as well to an assessment of the Defendant’s present reliability, and what weight can be given to his statements concerning his present beliefs given what he has said and done in the past.

12. [253]

    This is an aspect of significance to the determination of this application where the safety of the community must be the paramount consideration in determining whether or not to make an ESO: s.25(2) THRO Act.

13. [254]

    By way of broad analogy, the approach taken by courts where there is continuing vigorous challenge to clearly established guilt on the part of a medical practitioner, as indicating continuing unfitness to practice medicine, may be relevant in determining whether an ESO should be made under the THRO Act: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 100.

Has the Plaintiff Demonstrated to a High Degree of Probability that the Defendant Poses an Unacceptable Risk of Committing a Serious Terrorism Offence if he is not Subject to an ESO?

1. [255]

   I will set out, in some detail, the submissions made by the parties concerning the s.20(d) issue.

2. [256]

   In written submissions dated 31 May 2021, submissions were made for the Plaintiff by reference to the statutory factors contained in s.25(3) THRO Act.

3. [257]

   For the purpose of s.25(3)(b) and (c), reference was made to the risk assessment reports of Ms Kocak, forensic psychologist. Although Ms Kocak noted that the Defendant had been highly compliant, polite and respectful during interactions with Community Corrections, she observed that the Defendant had demonstrated a lack of true engagement on a number of significant issues. With respect to an assessment of the Defendant’s risk of violent extremism, Ms Kocak adjudged that the Defendant to be in the moderate range by application of the VERA-2R assessment tool. Reference was made to Ms Kocak’s conclusions concerning the Defendant’s beliefs, attitudes and ideology, his social context and intention, his history, action and capacity and commitment and motivation as well as what was said to be limited protective factors available to him.

4. [258]

   It was noted that Ms Kocak’s risk assessment report of 8 February 2021 identified four primary issues:

5. [259]

   The Plaintiff pointed to Ms Kocak’s opinion that any notable change in the Defendant’s risk profile appeared to be as a direct result of the restrictions currently imposed on him under the ESO/ISO. Ms Kocak considered that there appeared to be no candid or intrinsic change from the Defendant’s assessed risk from the time when Button J issued the ESO in 2019.

6. [260]

   The Plaintiff referred to Ms Kocak’s supplementary risk assessment report dated 24 May 2021, which confirmed that the Defendant had continued to attend psychology sessions, though consistently presented with what was described by treating psychologists as “low motivation to meaningfully engage in psychological intervention”, and resistance to meaningfully exploring his cognitive processes and behaviours. Ms Kocak maintained her assessment that the Defendant posed a moderate risk of extremist violence.

7. [261]

   The Plaintiff made submissions by reference to the reports of Dr Ellis and Dr Lennings, the Court-appointed experts, for the purpose of s.25(3)(a) THRO Act. It is not necessary to repeat here the summaries of the reports of Dr Ellis and Dr Lennings contained in the Plaintiff’s submissions. I have summarised the reports and oral evidence of Dr Ellis and Dr Lennings later in the judgment (at [314]-[366]). It is sufficient, for present purposes, to move to the submissions made by the Plaintiff concerning the reports of Dr Ellis and Dr Lennings.

8. [262]

   It was submitted for the Plaintiff that there were real reasons to doubt the Defendant’s attempts to explain away various pieces of evidence, and that this aspect was to be kept in mind in considering the evidence of Dr Ellis and Dr Lennings. The Plaintiff pointed, in particular, to the following matters:

9. [263]

   It was submitted for the Plaintiff that these difficulties in the Defendant’s accounts call into question the reliability of his assertions to the expert witnesses and that, to the extent that the opinions of Dr Ellis and Dr Lennings were premised on the Defendant’s self-report as to his past intentions and behaviour, they must be approached with caution. The Plaintiff submitted that when the Court conducted its evaluative risk assessment, it should proceed on the basis that there is a significant risk that the Defendant’s self-reports are untrue or unreliable and it would be a matter for the Court to weigh up the extent of that risk alongside all the other evidence.

10. [264]

    It should be noted that, in closing oral submissions, Mr Emmett SC made clear that, given the onus of proof on the Plaintiff, it was not submitted for the Plaintiff that any inference adverse to the Defendant should be drawn as a result of him not giving evidence at the final hearing (T147).

11. [265]

    In any event, it was submitted for the Plaintiff that both Dr Ellis and Dr Lennings acknowledged that the potential for the Defendant’s mental state to deteriorate remains. Reliance was placed upon the evidence of Dr Ellis that the Defendant appears to have been “easily drawn” into “fringe ideas” and there was nothing to indicate that his susceptibility in that respect has moderated.

12. [266]

    Accordingly, it was submitted that there remained a very real risk that the Defendant will, perhaps in a time of stress, resume his previous affiliation with the SCM (or with other ideologies that may support or encourage extremist violence). Should that occur in the absence of supervision, it was submitted that it would be unsurprising for the Defendant to resume behaviour which paralleled his conduct of 2017 and such behaviour would present a risk that the Defendant would engage in a serious terrorism offence.

13. [267]

    In this respect, the Plaintiff submitted that, even if the assessment of Dr Ellis and Dr Lennings of the level of risk presented by the Defendant is accepted, it does not necessarily follow that the risk posed is an acceptable one.

14. [268]

    The Plaintiff referred to other reports for the purpose of s.25(3)(b) and (c) THRO Act. Reference was made to the report of Dr Eagle dated 27 February 2019 and the report of Dr Susan Pulman dated 7 March 2019 which were before Button J at the 2019 final hearing. Button J’s assessment of the reports of Dr Eagle and Dr Pulman were referred to in State of NSW v Mathers (No. 2).

15. [269]

    Reference was made as well to the report of Rachel Terry dated 30 September 2020. Ms Terry expressed the view that the reduction in the risk posed by the Defendant was “largely reflective of the containment effect of his ESO, highlighting Mr Hardy’s ongoing avoidant behaviours, rather than being reflective of intrinsic change to his primary risk indicators”.

16. [270]

    Ms Terry considered that the Defendant was in the “pre-contemplative stage of change” and she pointed to the Defendant’s denial of any problematic ideology and the absence of any insight on his behalf in a number of significant respects.

17. [271]

    The Plaintiff referred as well to the report of Ms Filipa Abreu dated 26 April 2021 which effectively confirmed the report of Ms Terry.

18. [272]

    Concerning s.25(3)(d), the Plaintiff referred to the risk management report prepared by Donna-Marie Howard dated 22 January 2021 which suggested generally that the Defendant may be adequately managed by community-based supervision, albeit with some limitations due to his rigidity and resistance to meaningful engagement as evidenced in his supervision under the existing ESO.

19. [273]

    With respect to s.25(3)(f) concerning treatment or rehabilitation programs, the Plaintiff pointed to material in the THRO Psychology Progress Reports that, despite being encouraged to participate in additional mental health treatment and/or other education, employment and prosocial activities or initiatives, the Defendant had demonstrated no real willingness to engage in any of the activities offered with the exception of pursuing a law degree (which appears to have been driven by his sense of victimisation, personal grievance and persecution by government) and had participated only to the extent required to ensure he is compliant with the conditions of the ESO and directions of those supervising him.

20. [274]

    With respect to s.25(3)(g) concerning options that might reduce the likelihood of offending, the Plaintiff pointed to Ms Kocak’s report and other material in support of the submission that specific treatment and supervision would likely reduce the Defendant’s risk.

21. [275]

    With respect to s.25(3)(h) and (i) concerning the Defendant’s compliance with obligations, the Plaintiff submitted that the Defendant had strictly complied with his supervision under the ESO and then the ISO and that this suggested a strong likelihood that he will comply with any further ESO. It was submitted, however, that the Defendant’s compliance appeared to be motivated only by a desire to reach the end of the ESO/ISO without incident, and not by any acceptance or recognition of any additional benefit deriving from the supervision or any genuine recognition of the need for rehabilitation.

22. [276]

    With respect to s.25(3)(j) concerning the Defendant’s criminal history, it was submitted that, if the Defendant’s explanation at the sentencing proceedings for his 2017 possession of the firearms blueprints is not accepted or is doubted by the Court, that conviction may be regarded as adding weight to a pattern of serious and persistent interest in weapons/firearms on the part of the Defendant. It had been argued for the Defendant on sentence for the s.51F Firearms Act 1996 (NSW) offence that he planned to use the blueprints to make small items to form part of decorative jewellery. As the Defendant has been under containment measures (bail, imprisonment and then an ESO) and has failed to meaningfully engage in rehabilitation, the Plaintiff submitted that there is no convincing evidence to suggest that his interest in firearm manufacture will not remain as at the conclusion of the ESO.

23. [277]

    The Plaintiff submitted that the s.31 Crimes Act 1900 (NSW) offence itself revealed a propensity to contemplate the commission of violence against political figures, and that there is a risk that such contemplation might manifest in actual conduct that mirrored the threats previously made.

24. [278]

    With respect to s.25(3)(k) concerning the views of the sentencing court, the Plaintiff noted that the relevant sentence of imprisonment is that for the s.31 Crimes Act 1900 (NSW) offence, and the other offences for which the Defendant was sentenced on that day. It was noted that the sentencing Magistrate had expressed surprise at an observation in the presentence report that supervision was not necessary, noting that “because of the oddness of the offences” his Honour was “not so sure that you are a low risk”.

25. [279]

    With respect to s.25(3)(l) concerning the beliefs or commitments of the Defendant, the Plaintiff submitted that there are a number of indicators that the Defendant previously held a strong ideological association with the SCM. That association, it was submitted, was demonstrated by a number of the LinkedIn posts with the Defendant using titles for himself indicative of SCM beliefs.

26. [280]

    The Plaintiff submitted that the Defendant’s affinity with the SCM was also evidenced by his affixing of a red fingerprint over his signature on the affidavit he swore on 19 September 2017. It was submitted that there were other indicators in that affidavit suggesting a connection between the Defendant and the SCM.

27. [281]

    While, as the Plaintiff noted, there is no evidence that clearly demonstrated that the Defendant currently holds a particular belief or commitment that supports engaging in or participating in terrorism activities as defined, it was submitted that it was clear from the material underlying Ms Kocak’s report, and from the reports of Dr Bench, that he continues to possess anti-authority and anti-government ideological views. It was submitted, as well, that the material suggested that the Defendant’s personal grievances and sense of persecution persists strongly.

28. [282]

    If the Defendant’s mental health deteriorated, it was submitted that, in the absence of supervision and constraints on his behaviour, strongly held beliefs such as these may lead him to commit a serious terrorism offence which might range from the commission of an act of the type previously threatened against Ms Harrison MLA to the preparation of a document connected with the engagement of a person in a terrorist act.

29. [283]

    With respect to s.25(3)(m) being other relevant matters including further psychological and psychiatric assessments, the Plaintiff referred to the report of Dr Gordon Elliott in December 2018 concerning the Defendant and the assessment made by Dr Bench in late 2020 and early 2021 concerning the Defendant. It was noted that Dr Bench concluded that the Defendant was likely suffering a delusional disorder at the time of the index offence. The Plaintiff noted that the interview with the Defendant caused Dr Bench to question the Defendant’s credibility.

30. [284]

    The Plaintiff submitted that the Defendant’s treating psychologists had expressed views that aligned with those contained in Ms Kocak’s February 2021 risk assessment report, noting that the Defendant’s overall risk profile had only declined because of the containment effect of his ESO conditions along with his current avoidant behaviours, rather being reflective of intrinsic change to his primary indicators.

31. [285]

    The Plaintiff pointed to the following matters as bearing upon the Court’s assessment of the Defendant’s risk:

32. [286]

    It was submitted for the Plaintiff that these matters demonstrated that there is a real risk that the Defendant’s ideological beliefs may intensify and interact with a sense of personal grievance such that he:

33. [287]

    Whilst noting that there is no currently available direct or expert evidence of the specific kind of serious terrorism offence that the Defendant might commit or the likely or possible consequences of such an act, the Plaintiff submitted that, based on the violence-related historical context matters, the consequences of any such act by the Defendant could well be very serious. In this respect, reference was made to the Defendant’s possession of weapons (nunchucks and a slingshot for which he was sentenced, as well as a number of larger knives, torch batons and a machete), a prohibited replica firearm (pistol), voluminous violence-related literature including explosives and paramilitary manuals, a commercial grade pressure cooker, hundreds of 3D printer blueprints for the manufacture of a prohibited pistol and self-loading rifle as well as multiple replica firearms and a 3D printer.

34. [288]

    The Plaintiff submitted that, if the Defendant is not kept under supervision pursuant to a further ESO, it appears he will be under limited alternative constraints in the form of the ICO until June 2022 and Weapons and Firearms Prohibition Orders. However, such alternative constraints, it was submitted, appear insufficient to ameliorate the Defendant’s risk because he is not likely to be supervised by Community Corrections under the ICO, the Weapons and Firearms Prohibition Orders are reactive and not proactive in nature, and the nature of the Defendant’s risk is such that, in the absence of the capacity to self-manage, only intensive supervision and constraints will sufficiently ameliorate his risk.

35. [289]

    Whilst noting that the Court retained a discretion as to whether or not to make an ESO, the Plaintiff submitted that the community safety object of the THRO Act could only be met by the imposition of a further ESO in this case given:

36. [290]

    In written submissions dated 15 June 2021, Senior Counsel for the Defendant submitted that an ESO should not be directed in this case.

37. [291]

    By reference to s.25(3)(a)-(c) THRO Act, it was noted that both Dr Ellis and Dr Lennings determined that the Defendant was a low risk of committing a serious terrorism offence.

38. [292]

    Even if the finding of low risk was accepted by the Court, it was submitted that this should not be equated with a foundation for the making of an ESO.

39. [293]

    It was submitted that both court-appointed experts had concluded that the Defendant is presently not motivated by any ideology or doctrine and that the Plaintiff’s submission with respect to risk was based upon mere speculation, and not a proper foundation as noted by the Court of Appeal in State of New South Wales v Naaman (No. 2) at [26](d) (see [145] above).

40. [294]

    It was submitted for the Defendant that Dr Ellis and Dr Lennings agreed that one of the Defendant’s primary risk factors is a decompensation of his mental health. It was submitted that the legislative regime under the THRO Act is not designed, nor should it be used, to try and address an offender’s mental health stability.

41. [295]

    With respect to the Plaintiff’s reliance upon the risk assessment report of Ms Kocak, it was submitted that the Court should prefer the opinions of Dr Ellis and Dr Lennings. In this regard, it was submitted that each of them were court-appointed experts and entirely independent of the proceedings, and that each of them had recent lengthy interviews with the Defendant and took those interviews into account as part of their sources of information and that each had a greater breadth and depth of experience than Ms Kocak. In addition, it was submitted that the inability of the Defendant to cross-examine Ms Kocak meant that little weight should be given to her report.

42. [296]

    With respect to s.25(3)(g) and (i), the Defendant pointed to the report of Ms Howard who had the primary day-to-day contact with the Defendant from 23 March 2020 to 30 April 2021. It was noted that Ms Howard had stated that a continuation of the Defendant’s ESO was “not necessary”. It was submitted that the report of Ms Howard, and her views, should be given significant weight by the Court.

43. [297]

    For the purpose of s.25(3)(g), reference was made to other measures which might reduce the likelihood of the commission of a serious terrorism offence, being the ICO to which the Defendant will be subject until 10 June 2022. It was submitted that the conditions of the ICO were stringent and that there remained the prospect that the Defendant would be placed under supervision in the exercise of discretion as explained by Ms Newton in evidence.

44. [298]

    Reference was made to the Weapons Prohibition Order and Firearms Prohibition Order to which the Defendant is subject, which are not time restricted and which constitute protective measures to which the Court should have regard on the present application.

45. [299]

    It was submitted that the Defendant would likely remain under the scrutiny of the New South Wales Police Fixated Persons Unit and that this was relevant to the risk assessment under the THRO Act.

46. [300]

    Further, if the Defendant experienced a mental health decline to the point where he is a danger to himself or others, he could be detained by the police and taken to a mental health facility under the Mental Health Act 2007 (NSW). It was submitted that this available protective step operated as well against the making of an ESO in this case.

47. [301]

    With respect to s.25(3)(i), it was submitted that the Defendant had been subjected to an ESO or an ISO for a period exceeding two years and five months without a single alleged breach of the order. It was submitted that this aspect operated strongly in favour of the Defendant against the making of a further ESO.

48. [302]

    With respect to the beliefs or commitments of the Defendant for the purpose of s.25(3)(i) THRO Act, the Defendant placed reliance upon the evidence of Dr Ellis and Dr Lennings and submitted that all of the evidence relied upon by the Plaintiff to demonstrate the Defendant’s commitment to an ideology is significantly dated and is stale. In this regard, reference was made to the LinkedIn posts and other evidence relied upon by the Plaintiff.

49. [303]

    Concerning the Plaintiff’s submissions that the Defendant currently holds anti-authority and anti-government beliefs, it was submitted that there is no evidence of any threatening or violent behaviour to suggest that such beliefs might lead to the commission of a serious terrorism offence.

50. [304]

    Even if the Court was satisfied to a high degree of probability that the Defendant posed an unacceptable risk of committing a serious terrorism offence, it was submitted for the Defendant that this is an appropriate case in which the Court could exercise its discretion not to impose an ESO.

51. [305]

    In this regard, reliance was placed upon the connection between the matters under consideration and the Defendant’s mental health. It was submitted that the Court could be satisfied that there are other more appropriate mechanisms to address the Defendant’s mental health issues, including the Mental Health Act 2007 (NSW) in combination with the Defendant’s ICO, which will be in force until June 2022.

52. [306]

    Further, it was submitted that to impose a further ESO upon the Defendant, in his current state of stability, would likely mean that the Defendant will perpetually be under rolling ESOs into the future. It was submitted that this was not consistent with the stated purpose of the legislative scheme as noted by the Attorney General in the second reading speech for the Terrorism (High Risk Offenders) Bill 2017.

53. [307]

    In written submissions in reply dated 28 June 2021, the Plaintiff submitted that there is a sound basis to doubt key aspects of the Defendant’s assertions to Dr Ellis and Dr Lennings. The fact that Dr Lennings’ administration of the Paulhus Deception Scale did not suggest the Defendant was being deliberately deceptive cannot, it was submitted, be regarded as establishing the Defendant’s reliability in circumstances where a number of his assertions run counter to the objective evidence.

54. [308]

    It was submitted that, despite the Defendant seeking to distance himself from his previously espoused SCM-related beliefs in his interviews with Dr Ellis and Dr Lennings, there was other recent evidence that he adheres to a number of unusual beliefs. Reference was made to the recent assessment by Dr Bench in which it was said that the Defendant continues to “harbour great emotional attachment to the mould issue”. Even if the Defendant’s assertions in relation to his changed beliefs are accepted, it was submitted that there remains a real risk that the Defendant’s ideological beliefs will intensify and interact with personal grievances in a way that leads the Defendant to commit a terrorism offence as argued for the Plaintiff.

55. [309]

    In response to the submissions for the Defendant concerning the connection between risk and mental health, it was submitted for the Plaintiff that the possibility that a risk may be dealt with under the Mental Health Act 2007 (NSW) did not mean that the THRO Act does not apply, or is not designed to apply. To the contrary, the Plaintiff submitted that the THRO Act is plainly intended to apply to offenders with mental health difficulties. It was noted that one of the primary risk factors applying to the Defendant is one of decompensation in his psychiatric condition with reliance being placed in this regard upon the recent report of Dr Bench.

56. [310]

    Concerning the Defendant’s reliance upon the report of Ms Howard, the Plaintiff noted that the report did not include a detailed exploration of the basis for a conclusion that the continuation of the Defendant’s ESO was not necessary. It was submitted that Ms Howard’s conclusion was predicated largely on the Defendant’s compliance with his ESO conditions and not on an evaluation of the risk he poses or any reduction to it during the supervision process. The Plaintiff submitted that, even in Ms Howard’s report, there were observations made which did not assist the Defendant including her view that there “remains a level of superficiality to his compliance”. It was noted that Ms Howard states in the report that the Defendant’s engagement and interactions at times are described as “superficial, lacking insight, lacking interpersonal awareness and/or emotional regulation” and that the Defendant “continued to exhibit a fixation or preoccupation with a number of issues”.

57. [311]

    The Plaintiff submitted that the Court should regard Ms Howard’s report as simply reflecting the quality of the Defendant’s compliance, and not as a risk assessment, with the primary question being for the Court to determine whether the Defendant poses an unacceptable risk of committing a serious terrorism offence if not supervised under the THRO Act. It was submitted that Ms Howard’s report was of limited value in answering that question.

58. [312]

    The Plaintiff reiterated submissions concerning the beliefs of the Defendant and submitted, as well, that there was no basis for declining to order an ESO on discretionary grounds.

59. [313]

    In closing addresses, Mr Emmett SC and Mr O’Donnell SC emphasised aspects of the written submissions and made short additional submissions by reference to the oral evidence adduced at the final hearing.

The Evidence of Dr Ellis and Dr Lennings

1. [314]

   In the course of this judgment, I have referred to opinions expressed by a range of persons concerning the Defendant. The written submissions of the parties addressed this opinion evidence in some detail.

2. [315]

   The Defendant was examined in May 2021 by Dr Ellis and Dr Lennings. Considerable weight is to be given to the evidence of Dr Ellis and Dr Lennings, who have undertaken the important function of making independent assessments of the Defendant on behalf of the Court.

3. [316]

   Each of Dr Ellis and Dr Lennings is an eminent and highly respected practitioner in his respective field.

4. [317]

   In his report dated 17 May 2021, Dr Ellis recounted his clinical interview with the Defendant on 7 May 2021. In advance of that interview, Dr Ellis had been provided with a substantial volume of material including all relevant reports and documents. Dr Ellis observed that the Defendant “was initially standoffish but warmed over the course of the interview”. The Defendant “tended to use legalistic phrases”, but there was no evidence of formal thought disorder nor were current delusional ideas identified. The Defendant denied experiencing hallucinations. He was attentive to the interview and was oriented to time, place and person.

5. [318]

   The Defendant informed Dr Ellis that he felt the application for a further ESO was “unfair’ and that he had not breached any condition of the ESO and is not violent. The Defendant said that he was educating himself and that he knows he has changed.

6. [319]

   By way of psychiatric diagnosis, Dr Ellis raised personality disorder on the basis of the Defendant’s superficial emotional responses over a lengthy interview, his idiosyncratic use of language, his persistent interest in fringe topics, his chronic poor function in intimate relationships, difficulty engaging with treatment and supervision and difficulty regulating emotional response and impulses at times of stress. Dr Ellis observed that a pattern of the Defendant being easily drawn into fringe ideas such as the SCM, and then quickly rejecting them, “is in keeping with a diffuse self identity”. Dr Ellis agreed with prior assessments that, at the time of the offences, the Defendant’s mental state “had likely deteriorated to the point of being delusional, which can be a common response to stress in personality disorder”. Dr Ellis observed (report, 17 May 2021, page 13):

7. [320]

   Dr Ellis noted that there is no evidence for a chronic major mood or a psychotic disorder and no evidence for a significant cognitive disorder.

8. [321]

   With respect to the Defendant’s risk of general personal violence, Dr Ellis noted that there was no history of problems with physical violence across the Defendant’s life by self-report or documents. There was a less serious history of other antisocial behaviour (the index offence) in his adult life. There is a history of problems in relationships with multiple failed intimate relationships. Overall, the Defendant showed a good record of employment with early positive employment and current study. The Defendant has “a diagnosis of personality disorder, however not a diagnosis of antisocial personality which has a greater association with violence”.

9. [322]

   Dr Ellis noted that the Defendant had not reoffended on previous conditional supervised release, but had failed to attend bail once. According to Dr Ellis, the Defendant “currently displays only a superficial insight into his propensity for violence in the form of threats and understanding of need for treatment and management of this”. Dr Ellis continued (report, 17 May 2021, page 15):

10. [323]

    Dr Ellis noted that the Defendant “has a longstanding distrust of authority, however his institutional adjustment has been positive” and his “current living circumstances are likely supportive”.

11. [324]

    Dr Ellis noted that the Defendant has not engaged in physical violence and the charges indicate threats and preparation by reading literature about violence, possibly sourcing materials that could be used in violence. There had been four years since the last evidenced threat of violence by the Defendant. Dr Ellis considered that the Defendant “would fall into a group of persons with a risk for violent offending that is low in frequency with potential for serious consequence in his specific case only when engaged with extremist literature or online materials that he had incorporated into a personal grievance”.

12. [325]

    Dr Ellis continued (report, 17 May 2021, page 15):

13. [326]

    Dr Ellis then turned to an assessment of the Defendant’s risk of serious terrorism offences. According to the TRAP-18 assessment tool, Dr Ellis noted that the Defendant no longer had a fixation or pathological preoccupation with SCM and related doctrine (report, 17 May 2021, page 16). Dr Ellis observed that the Defendant “shows no strong identification with the warrior mentality of terror groups, although he may admire weapons”.

14. [327]

    By reference to the VERA-2R assessment tool, Dr Ellis noted that the Defendant “does not currently express an intention to act upon his grievances”. Dr Ellis observed that the Defendant “appears isolated and with unstable identity and may seek survivalist or extremist literature if he reverts to a state where his ‘survival instinct’ reactivates” and that the Defendant “does not expressly espouse any religious or moral obligations to violence, or voice a higher political purpose in extremist acts, however there is no way to determine if he is genuine in this” (report, 17 May 2021, page 17).

15. [328]

    With respect to protective factors, Dr Ellis noted that the Defendant “voices a generalised retraction of his past statements, but tends to minimise them” and that he had been “offered but not participated to satisfaction in programs designed to reduce violence and extremism” with this “considered most likely due to his personality style” (report, 17 May 2021, page 17).

16. [329]

    In considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence, Dr Ellis considered that the Defendant “now displays a low number of the characteristics associated with terrorist related violence” (report, 17 May 2021, page 18). However, Dr Ellis continued (report, 17 May 2021, page 18):

17. [330]

    Dr Ellis went on to address the issue of duration and conditions of an ESO if the Court was satisfied that such an order should be made (report, 17 May 2021, pages 18-20).

18. [331]

    Dr Lennings interviewed the Defendant on 20 May 2021 after receiving and considering a large volume of documentary material including reports and other relevant documents. Dr Lennings observed that, although the nature of the interview was at times intrusive, the Defendant “showed even temperament and a calm disposition throughout” (report, 20 May 2021, page 3).

19. [332]

    Dr Lennings provided a detailed summary of the reports of Ms Kocak and other material, including the reports of Dr Pitcavage and the reports of Dr Eagle, Dr Pulman, Dr Seidler and Dr Bench, all of which were taken into account by Dr Lennings in his assessment of the Defendant (report, 20 May 2021, pages 4-14).

20. [333]

    Following a detailed document review, Dr Lennings turned to his interview with the Defendant, including the Defendant’s account of relevant matters, his history, mental state examination and psychometric assessment (report, 20 May 2021, pages 17-26). The Defendant continued to assert that he did not write the offensive letter to Ms Harrison MLA (report, 20 May 2021, page 18). Dr Lennings spoke to the Defendant at some length concerning the SCM and the Defendant said that he was not a follower of it and sought to explain to Dr Lennings how he had come to place his red thumbprint on the affidavit he had sworn in 2017 (report, 20 May 2021, pages 19-20).

21. [334]

    Dr Lennings considered that the Defendant appeared open and co-operative in the interview, he maintained good temper control and there was no evidence of thought blocking or attending to unseen stimuli or irrational references (report, 20 May 2021, pages 21-22).

22. [335]

    With respect to psychometric assessments undertaken by Ms Kocak, Dr Pulman and Dr Seidler, Dr Lennings observed that the “competing hypotheses emerging from the various psychometric assessments are that Mr Hardy is defensive, and that such defensiveness is either a function of deliberate manipulativeness (Ms Kocak seemingly supported by Dr Pulman) or lack of insight (the weight of other psychiatric assessment and Dr Seidler)” (report, 20 May 2021, page 22). Dr Lennings applied the PAI together with the Paulhus Deception Scale. Dr Lennings stated that the “PAI established a defensive but not deliberately false self-report” and the “Paulhus suggests a similar interpretation” (report, 20 May 2021, page 23). The resulting scores “suggest a somewhat arrogant man, potentially narcissistic, who is blindly accepting of the self and lacks self-critical appreciation but not someone who is deliberately deceptive” (report, 20 May 2021, page 23).

23. [336]

    With respect to the question whether the Defendant is blind to problems which may exist, Dr Lennings stated (report, 20 May 201, page 24):

24. [337]

    Dr Lennings observed that the Defendant does not present with a psychological disorder or a personality disorder, but that he likely has traits of Cluster A personality disorder “specifically schizotypal traits, but these are not elevated and seemingly have not been a dominant feature in Mr Hardy’s life, other than assisting him to enjoy and prosper within a relatively lonely existence”. Dr Lennings doubted that there was a substantial risk of decompensation (report, 20 May 2021, page 25).

25. [338]

    Dr Lennings observed that the most troubling element of the Defendant’s situation is “his denial of what he previously admitted: the threat to kill” and that his denial is relevant to any assessment of the Defendant (report, 20 May 2021, page 25). Dr Lennings observed that evidence from research into other forms of violent offending has not revealed denial to be a potent predictor of future offending (report, 20 May 2021, page 25).

26. [339]

    Dr Lennings undertook a risk assessment with respect to the Defendant by reference to both static and dynamic factors. Dr Lennings utilised the VERA-2R assessment tool with respect to the Defendant and concluded that the risk assessment is low and does not support a view that the Defendant is at risk of affiliation with an extremist view supporting or advocating violence and is unlikely to perform an act of extremist violence in the future (report, 20 May 2021, pages 26-33).

27. [340]

    Dr Lennings described the Defendant as “a somewhat odd and withdrawn man who likely evidences some cluster A personality disorder traits such as aloofness, lack of emotional connection, and some preference for odd and alternative ideas” (report, 20 May 2021, page 33). Dr Lennings stated that “it is likely that in 2017 the mix of schizotypal traits and a transient delusional state combined to cause a situation that has since evolved into him being considered a potential extremist violence perpetrator” (report, 20 May 2021, page 33).

28. [341]

    Whatever the Defendant’s beliefs in 2017, Dr Lennings noted that he currently espoused prosocial means to further his agenda. Dr Lennings observed (report, 20 May 2021, page 33) “There is no sense that he currently embraces extremist violence views, and his embracing of alternative ideologies and conspiracy like ‘facts’ is not fixated or likely to lead to violence. For my assessment I accept the weight of opinion that in 2017 Mr Hardy experienced a delusional disorder”.

29. [342]

    Dr Lennings expressed a risk assessment of low, but observed that risk assessment occurs along two dimensions, that of likelihood and of consequence. If the consequence is unacceptably high, even a likelihood can make the risk seem unacceptable overall, but he noted that is “a balance the court must come to and not one that I come to” (report, 20 May 2021, page 33).

30. [343]

    In responding to specific questions posed to him, Dr Lennings observed, at one point (report, 20 May 2021, page 34):

31. [344]

    Dr Lennings stated that it was not his view that the Defendant posed a current risk of committing a serious terrorism offence. He assessed the Defendant’s risk as low whilst noting, once again, that a determination of unacceptable risk was a matter for the Court (report, 20 May 2021, page 34).

32. [345]

    Dr Lennings stated that he did not believe that the Defendant will engage in conduct that will amount to a serious terrorism offence (report, 20 May 2021, page 34).

33. [346]

    In response to a question concerning the Defendant’s attitudes, religious beliefs and ideologies, Dr Lennings stated (report, 20 May 2021, page 35):

34. [347]

    With respect to the gap of time between the index offence and the present, Dr Lennings stated (report, 20 May 2021, page 35):

35. [348]

    It may be seen then from the thorough reports of Dr Ellis and Dr Lennings that low risk assessments have been expressed by each of them with respect to the risk of violent offending and the risk of commission of serious terrorism offences.

36. [349]

    It was against this background that Dr Ellis and Dr Lennings gave concurrent evidence by audio-visual link at the final hearing on 8 and 9 July 2021. Some reference should be made to parts of that evidence.

37. [350]

    Each of Dr Ellis and Dr Lennings was aware that the Defendant had deleted certain posts because he had considered that he had “gone too far” and each of them agreed that this conduct indicated a capacity on the part of the Defendant to distinguish between right and wrong at the time when he deleted the posts (T58).

38. [351]

    Each of Dr Ellis and Dr Lennings stated that the Defendant would not accept any psychiatric label (including delusion) as being applicable to him in 2016 and 2017 and that he did not agree with Dr Bench’s assessment in this respect (T60). With respect to the Defendant’s statements about the SCM and the content of some of his posts, Dr Lennings observed that the Defendant told him that he did not believe those things, but Dr Lennings “had to kind of really push to get him to that point” (T61). The Defendant told Dr Lennings that some of what “he was writing was designed to get a reaction rather than necessarily being a deeply-held belief” (T61).

39. [352]

    Both Dr Ellis and Dr Lennings were asked about the Defendant’s denial of the index offence with Dr Ellis describing a process called “psychotic denial” (T63). Dr Lennings emphasised that the Paulhus Deception Scale does not operate as a type of lie detector test, but rather as a measure of the attitude that the person takes towards describing themselves (T65).

40. [353]

    Dr Lennings observed that the Defendant’s university studies indicated that he had taken “like a duck to water to academia” (T68). In response to a question from Mr Emmett SC concerning the difficulty in assessing the Defendant’s risk by reference to certain factors, Dr Lennings observed (T69):

41. [354]

    In answer to questions from Mr Emmett SC, Dr Lennings accepted that any risk assessment concerning the Defendant may need to be adjusted if the Court formed the view that he might not be telling the truth about the reasons why he downloaded the firearm blueprints which gave rise to the s.51F(1) Firearms Act 1996 (NSW) offence (T79-80).

42. [355]

    Each of Dr Ellis and Dr Lennings acknowledged the need to consider the possibility that the Defendant had been telling them what he thought each of them wanted to hear (T81-82).

43. [356]

    In answer to questions from Mr O’Donnell SC, Dr Ellis considered that the most likely explanation for the Defendant’s behaviour at the time of the index offence was that he was suffering from a transient delusional state (T101-102).

44. [357]

    Dr Ellis was asked a question by the Court concerning the Defendant’s denial of the s.31 Crimes Act 1900 (NSW) offence in the face of his earlier plea of guilty (T102-103):

45. [358]

    Soon after, the Court raised the following issue with Dr Ellis (T103):

46. [359]

    In answer to a further question from the Bench concerning the relevance of insight or lack of insight, Dr Ellis said (T104):

47. [360]

    Dr Lennings agreed with the responses of Dr Ellis concerning the notion of insight and continued (T105):

48. [361]

    Dr Lennings considered that the Defendant had insight into how he was influenced or affected by his association with ideologies including the SCM, and that there was a shift in the Defendant’s thought processes in that respect away from such ideology which Dr Lennings considered to be a genuine shift (T106-107).

49. [362]

    Dr Ellis stated that the questions asked of him concerning insight (or lack thereof) and denial did not change the opinions he had expressed in his report as he had considered both of those things at the time of making the report and had incorporated the into his overall assessment (T108).

50. [363]

    In answer to a question from Mr O’Donnell SC, Dr Ellis considered that the totality of the evidence suggested that the Defendant was in a psychotic state at the time of the index offence, involving the letter delivered to Ms Harrison MLA, and that “his thinking was disorganised and that he had incorporated a number of persecuted beliefs … that related to his circumstance and that he began to act upon those beliefs in a disorganised manner and preoccupied manner” (T122).

51. [364]

    Dr Ellis considered that these thought processes may well extend to explain the Defendant’s Internet preoccupation with the SCM and his LinkedIn posts (T122-123).

52. [365]

    Mr O’Donnell SC embarked upon questioning of Dr Ellis as to whether the Defendant might “have met the criteria for a mental impairment defence” (T125). I expressed concern at the line of questioning, given the Defendant’s own denial that he suffered a delusion at the time of the index offence, and a discussion ensued with Senior Counsel for the Defendant as to the role of this questioning at the final hearing (T125-127).

53. [366]

    Shortly before the conclusion of the evidence of Dr Ellis and Dr Lennings, Mr O’Donnell SC asked Dr Ellis the following question (T128):

Decision Concerning s.20(d) Issue

1. [367]

   I have set out, in some detail, submissions made by the parties concerning application of the unacceptable risk test in s.20(d), including submissions made concerning factors under s.25(3) THRO Act.

2. [368]

   The present task for the Court is to determine whether it is satisfied, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision by way of an ESO.

3. [369]

   This question must be answered by reference to the totality of the evidence adduced at the final hearing. This evidence includes voluminous documentary evidence together with oral evidence, most significantly from Dr Ellis and Dr Lennings.

4. [370]

   The starting point is that the Defendant committed grave and troubling offences in 2017 including the index offence under s.31 Crimes Act 1900 (NSW) for which he was sentenced to a term of imprisonment. That offence was clearly motivated by adherence to SCM beliefs, as demonstrated by the contents of the envelopes delivered by the Defendant to the office of Ms Harrison MLA, and by surrounding acts of the Defendant, in preceding and following months, including persistent LinkedIn posts which had the strong flavour of support for SCM beliefs. Added to this are further acts including the formal and solemn act of making an affidavit in September 2017 for use in this Court which manifested, in various disturbing respects, adherence to SCM beliefs and practices.

5. [371]

   Added further to this is the gathering by the Defendant of firearm blueprints at a time when he possessed a 3D printer and with other features of his conduct being, to say the least, troubling in this respect.

6. [372]

   I have kept in mind that the Defendant has denied any sinister purpose in downloading the firearm blueprints and possessing a 3D printer. At the sentencing hearing for those matters, statements from persons were tendered on behalf of the Defendant which provided some support for this account. However, there remain disturbing features of this account, and its plausibility, given the range of conduct carried out by the Defendant over many months, including firearms, prohibited weapons, the threatening letter directed to a politician, the Defendant’s support for the SCM and his repeated expression of extremist and violent views in LinkedIn posts. It is necessary to consider the whole of the evidence and not engage in a piecemeal examination of it (see [149] above). The Defendant has not given evidence at the final hearing (see [242]-[254] above). He is not required to do so, and he carries no onus, but I have considerable reservations concerning the plausibility of the account given by him to others for possessing the firearm blueprints.

7. [373]

   It is the case that the various accounts given by the Defendant are concerning and at times inconsistent, including his denial of the commission of the s.31 Crimes Act 1900 (NSW) offence itself. Added to that is the expression of psychiatric opinions by a number of medical practitioners that, at the time of the s.31 Crimes Act 1900 (NSW) offence, the Defendant was experiencing transient delusional beliefs. The Defendant himself denies having any delusions at that time. It seems clear from the evidence that the Defendant had developed a curious and troubling obsession with mould at his leased jewellery premises. It is clear that the Defendant was a troubled man with some disturbed thought processes in 2017. Button J so found in the final judgment leading to the 2019 ESO.

8. [374]

   As noted earlier, a difficulty which confronts the Court at present is the need to undertake a risk assessment of the Defendant when he himself has not given evidence at the final hearing. Rather, the Court is left to assess a range of opinions expressed by various psychiatrists and psychologists who have interviewed the Defendant over a period of years about relevant topics. The opinions of these various professionals have varied in different respects as Button J noted in his 2019 judgment where an ESO was ordered. The Court must undertake the risk assessment process effectively one step removed from the Defendant.

9. [375]

   What may be said is that the Defendant has demonstrated a capacity to comply technically with the terms and conditions of his ESO so that there has been no breach of the ESO or ISO on his part. However, in circumstances where the Defendant has the history reflected in the evidence, there is a proper basis for the Court to have expected a more co-operative and reflective approach by the Defendant as to the need for assistance to be given to him by health professionals who have engaged with him.

10. [376]

    Instead, there has been a chronic lack of insight on the part of the Defendant accompanied by a substantial level of denial (accompanied by persecutory beliefs), so that it may be fairly stated that there has been no movement forward, in a constructive way, in the Defendant’s thought processes as a result of the treatment and counselling offered to him as part of the ESO and ISO over several years.

11. [377]

    In a practical sense, the Court is in no better position than Button J was at the time of the final hearing in 2019. It is necessary, however, to refer to aspects of the evidence of Dr Ellis and Dr Lennings for the purpose of making the necessary determination as to whether an ESO should be ordered.

12. [378]

    The evidence of Dr Ellis and Dr Lennings plays an important part on this application by reference to s.25(3)(a) THRO Act. In assessing the Defendant and expressing their own opinions, each of Dr Ellis and Dr Lennings considered, in effect, all the other evidence that is before the Court on this application. Each of them was careful to observe that it is for the Court and not the expert witnesses to determine the issues in the application, but their careful and thoughtful opinions carry considerable weight in the determination of this application.

13. [379]

    It is necessary to keep firmly in mind that the Plaintiff bears the onus of proof to demonstrate, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO: s.20(d) THRO Act. The Court is not required to determine that the risk of the Defendant committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of him committing such an offence: s.21 THRO Act.

14. [380]

    It is necessary for the Plaintiff to demonstrate that a proper evidentiary foundation exists for the making of an ESO with this conclusion to be reached by way of proper inferences and not mere speculation (see [149]-[150] above).

15. [381]

    The Defendant’s denial of guilt and limited insight leads to the need for considerable caution in undertaking a risk assessment with respect to him. I have kept in mind that Dr Ellis and Dr Lennings have grappled with these issues in some detail in their reports and oral evidence.

16. [382]

    I have undertaken the risk assessment process in accordance with ss.20(d), 21 and 25 THRO Act. I will not repeat at this point in the judgment the evidence which is to be considered under the heading contained in s.25(3) THRO Act. This material has been summarised in the Plaintiff’s written submissions (see [257]-[284] above) and I accept that analysis with respect to this material.

17. [383]

    I have kept in mind that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court: s.25(2) THRO Act.

18. [384]

    My reasoning with respect to the assessment of risk of the Defendant under s.20(d) THRO Act involves the following steps.

19. [385]

    Firstly, for an extended period in 2017, the Defendant demonstrated strong adherence to violent extremist beliefs in the form of the SCM, with those beliefs including the making of threatening comments in LinkedIn posts and, importantly, the delivery of a threatening letter to a member of the Legislative Assembly. The Defendant pleaded guilty and was sentenced to a term of imprisonment for the s.31 Crimes Act 1900 (NSW) offence in this respect.

20. [386]

    Secondly, at various times in 2017, the Defendant either possessed a firearm or prohibited weapons, or the means to manufacture such items, with these acts giving rise to further offences to which he pleaded guilty under s.36 Firearms Act 1996 (NSW), s.7 Weapons Prohibition Act 1998 (NSW) and s.51F(1) Firearms Act 1996 (NSW). Although the Defendant did not take any action with respect to these items, his accumulation of them was a disturbing feature which coincided with his manifest adherence to SCM beliefs over an extended period of time.

21. [387]

    Thirdly, the Defendant had mental health issues in 2017 at the times when he behaved in the two preceding paragraphs. A diagnosis of transient delusional state has been raised by a number of psychiatrists and psychologists as being operative at the time of some of these events and offences.

22. [388]

    Fourthly, the Defendant has not demonstrated insight into his offending conduct and denies that he was guilty of the s.31 Crimes Act 1900 (NSW) offence and the s.51F(1) Firearms Act 1996 (NSW), despite his pleas of guilty to those matters. In addition, the Defendant denies that he was experiencing mental health problems, including delusions, at the time of relevant events in 2017.

23. [389]

    Fifthly, in April 2019, Button J placed the Defendant on an ESO for two years under the THRO Act. Although the Defendant has complied technically with the conditions of the ESO, he has not engaged meaningfully with psychological counselling or treatment. He has continued to express paranoid thinking with respect to the criminal proceedings brought against him arising from events in 2017 and the proceedings under the THRO Act before Button J and the present application for a further ESO. In this way, he has erected a form of roadblock which has stood in the way of meaningful progress under the ESO.

24. [390]

    Sixthly, although the Defendant had effectively rejected ongoing psychological counselling under the ESO, so that it was determined to suspend the process for ethical reasons in February 2021, the Defendant indicated in March 2021 that he wished to continue to engage with PRAXIS Psychology sessions. This development may constitute a “pre-contemplative stage of change” (see [270] above). The Defendant has not moved further since this recent development.

25. [391]

    Seventhly, the Defendant continues to have fixed, if not fixated, views on a range of topics. There is a risk of mental decompensation on his part, with this being the context in which the events in 2017 came to occur. Those events involved thought processes extending to expressions of violent extremist views and the making of a violent threat which constituted a serious crime under s.31 Crimes Act 1900 (NSW). In the words of Button J in 2019, “the fact that one may have been mentally disturbed is hardly a guarantee that one will not engage in political violence in the future” and that “although mental disturbance is by no means a prerequisite for the commission of political violence, nor is it an excluding factor”: State of NSW v Mathers (No. 2) at [39] (see [46] above). I respectfully agree with his Honour’s statement which remains pertinent to the present application.

26. [392]

    Eighthly, the Defendant does not consider that he has mental health problems so that there is no evidence of any private arrangement for psychiatric treatment or psychological counselling which he has made independently of what may occur as part of an ESO. He has begrudgingly attended psychological sessions and psychiatric examination, expressing some paranoid ideation as to why he is required to attend at all.

27. [393]

    Ninthly, the Defendant is residing with his elderly parents and will continue to reside with them. He had been residing with his parents in 2017, and his actions and behaviour in that year did not appear to attract any intervention on the part of his parents. This is not expressed as a criticism of the Defendant’s parents, but as an indication of the limited role that his parents could be expected reasonably to undertake in monitoring the Defendant’s mental health and behaviour in the future.

28. [394]

    Tenthly, the Defendant is an intelligent man currently undertaking legal studies. Although this appears, on the face of it, to be a positive step, the Defendant’s explanation for undertaking these studies seems to involve, in some respects, the maintenance of his persecutory beliefs arising from the criminal proceedings brought against him and the subsequent proceedings under the THRO Act.

29. [395]

    Eleventhly, the Defendant’s position has not advanced materially since Button J made an order in 2019 for an ESO for a period of two years. I agree with his Honour’s assessment that, even if the risk of commission of a serious terrorism offence is not high or overwhelming, the consequences of the risk of such an event occurring must be taken into account for the purpose of reaching a conclusion under s.20(d) THRO Act: State of NSW v Mathers (No. 2) at [46]-[47] (see [46] above).

30. [396]

    Twelfthly, although the Defendant will be subject to an ICO until June 2022 and is subject to a Firearms Prohibition Order and a Weapons Prohibition Order, these types of orders provide limited protection, given the different purposes to be served by them. There is limited supervision by Community Corrections under an ICO in the absence of a concurrent ESO. Although there is a discretionary power to increase supervision if the Defendant was subject to an ICO only, the evidence does not indicate that such supervision would necessarily be applied to the Defendant. Further, the powers capable of being exercised under a Firearms Prohibition Order and a Weapons Prohibition Order are reactive and not proactive. They are different powers to those which may be exercised in supervisory conditions under an ESO.

31. [397]

    Thirteenthly, with respect to the submission that any mental health issues which may be experienced by the Defendant can be accommodated by the Mental Health Act 2007 (NSW), it is noteworthy that the Defendant himself does not acknowledge that he has had in the past, or at the present time, any mental health issues. If the Defendant experiences mental decompensation of the type which occurred in 2017, it is speculative, at best, to consider that any necessary and timely action would be taken under the Mental Health Act 2007 (NSW).

32. [398]

    Fourteenthly, I have had regard to opinions expressed by psychiatrists and psychologists who have, over a period of years, assessed the Defendant. In considering the opinion of Ms Kocak, I have kept in mind that her evidence has not been subject to cross-examination. However, Ms Kocak has reported on the Defendant on a number of occasions so that she has considerable familiarity with his case. There is other recent material which supports her opinion, including the THRO Psychology notes and PRAXIS Psychology notes. I do not place great weight on the opinion of Ms Howard who did not recommend a further ESO. Ms Howard had no particular expertise to express an opinion for the purpose of the THRO Act. I have attached considerable weight to the opinions of Dr Ellis and Dr Lennings. Each of the court-appointed experts has made clear that the ultimate assessment of risk is for the Court. Each of them has set out helpfully factors which point in favour of, or against, the making of an ESO and I have had regard to their opinions in reaching a conclusion. In my view, there are significant concerns with respect to the credibility and reliability of the Defendant’s statements made to those who have interviewed him, including Dr Bench, Dr Ellis and Dr Lennings. As a result, I am not prepared to act on the opinions of Dr Ellis and Dr Lennings which involved acceptance of the Defendant’s account.

33. [399]

    Fifteenthly, it is not necessary for the Court to identify a specific “serious terrorism offence” for the purpose of the risk assessment under s.20(d) THRO Act (see [152] above). However, given the broad range of conduct accommodated under that heading, including preparatory offences and planning offences, I consider that the type of conduct undertaken by the Defendant in 2017 provides an appropriate foundation for an assessment of the risk of repetition of behaviour of that type in the future unless the Defendant is subject to an ESO.

34. [400]

    Sixteenthly, I do not consider that the Defendant is assisted by the decision in State of NSW v Dickson at [76]-[77]. I am satisfied that the Defendant had the relevant intention to threaten acts of violence in 2017 and that there is an unacceptable risk that such an intention will recur in the absence of an ESO. The suggestion that the Defendant may have been subject to a transient delusional state does not stand in the way of this finding.

35. [401]

    I express my satisfaction, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious terrorism offence if he is not kept under supervision under an ESO.

Discretionary Refusal of an ESO?

1. [402]

   As the Court of Appeal noted in State of NSW v Naaman (No. 2) at [29] (6) (see [145] above), the Court has a discretion to decline to order an ESO under s.20 THRO Act, even if the statutory requirements for such an order have been satisfied.

2. [403]

   It was submitted for the Defendant that if the Court reached this point, a decision should be made declining to make an ESO. In support of this submission, reliance was placed on the availability of other forms of supervision or scrutiny of the Defendant, including the ICO and the Firearms and Weapons Prohibition Orders. It was submitted as well that the Mental Health Act 2007 (NSW) was available to accommodate any risk posed by the Defendant if mental decompensation occurred.

3. [404]

   I have considered these submissions. I am satisfied that an ESO should be made. These other forms of supervision, official scrutiny or possible treatment for mental health problems do not address the particular risk posed by the Defendant in this case.

4. [405]

   Given a submission made for the Defendant (see [306] above), I should emphasise that the Court is determining the present application on the evidence adduced at the hearing. The decision by the Court does not constitute a foundation for rolling ESOs to be made in the future with respect to the Defendant.

Duration of the ESO

1. [406]

   Section 26(6) THRO Act allows for an ESO to be made for a period not exceeding three years.

2. [407]

   With respect to the duration of an ESO, I note that the Plaintiff, in the Further Amended Summons, sought an order for a period of two years. Dr Ellis indicated that, if an ESO is to be made, an order for a period of one year may be appropriate in the circumstances of the case.

3. [408]

   I am satisfied that an ESO should be directed to operate for a period of 18 months from the expiration of the existing ISO on 28 July 2021.

4. [409]

   This is an appropriate period to allow the Defendant an opportunity to progress his proffered change of attitude expressed in March 2021 concerning engagement with the PRAXIS Psychology sessions. In my view, that is an important part of the ESO, given the effective lack of progress in that respect between April 2019 and March 2021. An ESO of this duration will encourage the Defendant to undertake rehabilitation as well as serve to ensure the safety and protection of the community: s.3(1) and (2) THRO Act.

5. [410]

   Further, a period of 18 months will provide for the ESO to run after the expiration of the ICO in June 2022. The ESO will serve an entirely different purpose to the ICO, and it is important that the ESO operate on its own for a period with respect to the Defendant.

Conditions of the ESO

1. [411]

   Section 29 THRO Act makes detailed provision for conditions to be imposed on an ESO, with s.29(1A) providing for certain presumptive conditions to be included, unless the Court “orders differently”.

2. [412]

   Written submissions were made on behalf of the Plaintiff and the Defendant concerning conditions of an ESO and counsel addressed the question of conditions at the conclusion of the final hearing (T178-183).

3. [413]

   I note that the conditions placed on the ISO by Harrison J on 1 April 2021 reduced, in a number of respects, the conditions which had applied to the ESO directed by Button J in 2019.

4. [414]

   In determining the conditions of the ESO, I will refer to the conditions attached to the Further Amended Summons dated 1 July 2021. In accordance with usual practice, I will maintain the paragraph numbering in the proposed conditions and, where certain conditions are not to be included, I will not utilise those condition numbers for the purpose of subsequent conditions. As a result, the conditions ordered will use the formula “not utilised” next to numbers which are not directed to be conditions of the ESO.

5. [415]

   I have considered the submissions made on behalf of the Plaintiff and the Defendant with respect to conditions. It is important that the conditions should address the Defendant’s mental health issues and the risk of potential decompensation in his mental health. In addition, conditions ought be included which prevent the Defendant from accessing extremist material or possessing weapons or firearms and monitoring his Internet activities with a view to assessing whether he has returned to his anti-government fixated thought processes.

6. [416]

   I have had regard to what was said by Dr Ellis and Dr Lennings concerning proposed conditions as well as statements in other reports which provided an explanation or foundation for the conditions sought by the Plaintiff.

7. [417]

   Proposed Condition 3, under the heading “Monitoring and Reporting”, provides for the Defendant to submit to the supervision and guidance of an Enforcement Officer responsible for the supervision of the Defendant under the ESO. The condition as sought is in a form as utilised by Harrison J in the ISO made after the preliminary hearing. It is in terms of the presumptive order contained in s.29(1A)(a) THRO Act.

8. [418]

   I note that the Plaintiff does not seek proposed Conditions 6-9 concerning a schedule of movements. In these circumstances, I consider proposed Condition 3 is reasonable and note that it is not intended to operate as a type of backdoor way of introducing a requirement for a schedule of movements.

9. [419]

   Objection is taken on behalf of the Defendant to proposed Condition 32 which states “The defendant must inform his EO [Enforcement Officer] of the identity of any person with whom he does, or is likely to, regularly associate”. I note that proposed Conditions 30, 31, 33 and 34 will provide for non-association by the Defendant with certain persons or organisations.

10. [420]

    The objection made by the Defendant to proposed Condition 32 is that it would operate to inhibit prosocial activities and positive rehabilitative activity of a type recommended by Dr Ellis and Dr Lennings.

11. [421]

    Having regard to the other non-association conditions to be imposed, I do not consider that Condition 32 should be included. The risk posed by the Defendant will not be mitigated in any meaningful way by imposition of that condition which may serve to operate in a negative fashion if utilised.

12. [422]

    I decline to include proposed Condition 32.

13. [423]

    I note that proposed Conditions 35, 36, 40, 42A, 42B, 43, 48, 50 and 56 all relate to possession of firearms or prohibited weapons, access to the Internet and other electronic communications and access to violent and extremist material. I am satisfied that these conditions are appropriate in the circumstances of this case.

14. [424]

    Proposed Conditions 62-67 appear under the heading “Medical intervention and treatment”. Those conditions as sought are as follows:

15. [425]

    Objection was made on behalf of the Defendant to Conditions 63, 64, 65 and 66 as being unnecessary in this case. Particular objection was taken to Condition 66 because of the obligation placed on the healthcare provider to share information concerning the Defendant.

16. [426]

    It was submitted for the Plaintiff that these conditions were important given the risk factors surrounding the Defendant including the risk of mental decompensation and of conduct involving advocacy in support of violent extremism.

17. [427]

    I note that Harrison J was not prepared to make proposed Condition 66 (in its then form) as part of the ISO: State of New South Wales v Hardy at [47]-[48]. His Honour observed that, on one view, it was potentially counterproductive as it may lead a person in the Defendant’s position, who was in need of sensitive and confidential care, to refrain from seeking such treatment because of privacy concerns.

18. [428]

    In my view, the concerns expressed by Harrison J are met by the modified form of proposed Condition 66 as now sought by the Plaintiff. That form of condition makes clear that the Defendant is required to agree to any of the healthcare providers, who provide treatment or services to him in relation to his mental health, sharing information “if the relevant healthcare provider forms the view that sharing such information is necessary to ensure effective management of the defendant’s risk factors”.

19. [429]

    This is a different formula to that rejected by Harrison J. The present form of condition confines the prospect of sharing information to circumstances where the healthcare provider forms the view that it is necessary to ensure the effective management of the Defendant’s risk factors. If any development in the treatment of the Defendant activates this verbal formula, it is appropriate that the information be shared with other healthcare providers and the Enforcement Officer, who has the responsibility of supervising the Defendant under the ESO.

20. [430]

    Given the significant risk factors identified in this case, I consider that each of proposed Conditions 62-67 is appropriate in the case of the Defendant. The Defendant continues to present, in a troubling fashion, as a person who has been diagnosed with mental illness in the past and with the prospect that features of that mental illness continue to persist, but with denial on his part that he has suffered from mental illness. Conditions concerning mental intervention and treatment of the Defendant are important for the purpose of the operation of the proposed ESO.

21. [431]

    I am satisfied that each of the conditions sought by the Plaintiff, with the exception of proposed Condition 32, should be made.

Orders

1. [432]

   I make the following orders: