State of New South Wales v Fayad (Final)

This case was not about religion in general or Islam in particular. This case was about Mr Wassim Fayad, the defendant, (also known as Fadi Alameddine and Abu Zakariyah) and whether the Court was satisfied that he, as an individual, posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision by way of an extended supervision order (ESO) made pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act).

As at 7 October 2020, the defendant was serving a seven year sentence of imprisonment, having pleaded guilty to a charge of aggravated break and enter with intent to commit a serious indictable offence. That sentence was due to expire on 28 November 2020.

On 7 October 2020, the State of New South Wales, the plaintiff, filed a summons seeking an ESO in respect of the defendant. A continuing detention order was not sought. In the summons, the State also applied for interim relief by way of an interim supervision order (ISO) and psychiatric and psychological examinations of the defendant.

On 25 November 2020, Johnson J imposed an ISO and made orders for the examination of the defendant: State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [292]. As a result of those orders, the defendant was examined by Dr Seidler, a forensic psychologist, and Dr Ellis, a forensic psychiatrist.

The ISO was renewed a number of times so that it was eventually due to expire at the end of 27 February 2021. No further renewal of the ISO was possible after that date, by virtue of s 28(7) of the THRO Act.

The final hearing of the matter extended over three days from 24 to 26 February 2021. In that hearing, the defendant conceded that the threshold requirements for the making of an ESO set out in s 20(a), (b) and (c) of the THRO Act were satisfied. That concession was, in my view, properly made. Accordingly, the only issue at the final hearing was whether, as required by s 20(d), the Court was:

On 27 February 2021, being so satisfied, I made the following orders:

The conditions referred to in order 2 are contained in the schedule attached to this judgment.

I now set out my reasons for making those orders in the paragraphs which follow.

The scheme established by the THRO Act for the making of extended supervision orders (ESOs) depends not only on that Act but also refers to certain provisions of the Criminal Code (Cth) (the Criminal Code). Accordingly, it will be necessary to refer in some detail to the applicable provisions of the THRO Act and to touch upon relevant offences and definitions in the Criminal Code.

The “primary object” of the THRO Act is, under s 3(1):

“Another object” of the Act is provided in s 3(2) and that is to “encourage these offenders to undertake rehabilitation”.

ESOs are dealt with in Pt 2, Divs 2.1 to 2.4, ss 19 to 26, of the THRO Act.

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

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

Sections 21 and 25 of the THRO Act give further guidance as to how the Court is to go about its task under s 20. Section 21 establishes that, in order to determine that there is an unacceptable risk of the offender committing such a serious terrorism offence, the Court is not required to determine that such a risk is more likely than not.

Section 25(1) permits the Court to determine an application for an extended supervision order either:

In determining the application, the Court is required by s 25(2) to treat the safety of the community as “the paramount consideration”. Section 25(3) also contains a list of mandatory considerations for the Court, in the following terms:

Finally, s 25(4) renders any intention of the offender to leave New South Wales (whether permanently or temporarily) an irrelevant consideration for the purposes of determining whether to make an ESO.

If an ESO is made, s 26 of the THRO Act deals with the term or duration of the order. Section 26(1) specifies that an ESO commences when the order is made, or when the eligible offender’s “current custody or supervision” expires, whichever is the later. “Current custody or supervision” is defined as meaning “the custody or supervision to which the offender is subject at the time of the application”, in s 19 of the THRO Act.

As to expiration and suspension of an ESO, s 26(6) provides:

Section 29 provides for the imposition of conditions under an ESO. Section 29(1) contains a list of conditions with which a defendant may be required to comply under an ESO and s 29(1A) contains a list of conditions which must be included, unless the Court orders differently. Section 29(2) sets out definitions of some of the terms used. Section 29 is in the following terms:

Finally, it can be noted that, under s 31 of the THRO Act, the Court may vary or revoke an ESO at any time on the application of the State or the person to whom it applies.

In the present case, there was no dispute that the defendant was an “eligible offender” and, as noted above, it was conceded by the defendant that the requirements in s 20(a), (b) and (c) were made out in the present case. Thus, the focus of the final hearing was upon the requirements in s 20(d) of the THRO Act, namely, whether the Court was:

The requirement for the Court to be satisfied to a “high degree of probability” performs at least two functions. First, it confirms that the issue of whether the defendant poses an unacceptable risk is not to be resolved by mere speculation and, secondly, it effectively displaces the ordinary civil standard of proof, “on the balance of probabilities”, with a higher standard, “to a high degree of probability”: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29]. The authorities that concern the same wording in other New South Wales high risk offender legislation establish that this higher standard is, however, lower than the criminal standard of proof of “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

The defendant submitted that this requirement for the Court to be satisfied to a high degree of probability required there to be “acceptable, cogent evidence” of the matters to which the Court must have regard and that such evidence should permit the Court to reach the required degree of satisfaction. The defendant relied on the comment of Payne JA in Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [131] that “[t]he requirement in section 13 of the Dangerous Prisoners (Sexual Offenders) Act for there to be “acceptable, cogent evidence” before the Court is materially indistinguishable from the requirement in the [Crimes (High Risk Offenders) Act] for the Supreme Court to be satisfied ‘to a high degree of probability’”. It was further submitted that particular pieces of evidence, for example intelligence reports and OIMS notes, did not meet the description “acceptable, cogent evidence” and thus the Court should not take that material into account in determining whether it was satisfied to a high degree of probability that the defendant posed a relevant risk.

This submission was not, and should not be, accepted. In Kamm at [131], Payne JA was considering whether certain features of the Crimes (High Risk Offenders) Act 2006 (NSW) were sufficiently different from the Queensland high risk offender legislation considered by the High Court in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 so that it could be concluded that the Crimes (High Risk Offenders) Act, unlike the legislation in Fardon, was constitutionally invalid because it impaired the institutional integrity of the Supreme Court of New South Wales so as to be incompatible with the Court’s position as a potential repository of federal judicial power. The legislation in Fardon provided that the satisfaction of the Supreme Court of Queensland “that the appellant [in that case] is a serious danger to the community could be attained (s 13(3)):

At [131] to [134], Payne JA said:

Payne JA was only stating that, for the purpose of considering the constitutional validity of the Crimes (High Risk Offenders) Act, the provisions in s 5B of that Act were “materially indistinguishable from” s 13 of the Queensland legislation held to be valid in Fardon. His Honour was not establishing a principle that the wording of s 5B was to be construed as incorporating the different wording and concepts found in s 13 of the Queensland legislation.

The relevant requirements of s 5B of the Crimes (High Risk Offenders) Act use substantially the same form of words as the requirement in s 20(d) of the THRO Act. Section 20(d) does not contain a requirement that the Court’s satisfaction must be based on “acceptable, cogent evidence”. Indeed, by operation of ss 25(3), 50, 58, 59 and 61 of the THRO Act, the Parliament has prescribed the types of evidence that will be admissible on an application under the THRO Act, subject to s 50(2) of that Act. The acceptability or cogency of that evidence was to be considered in light of the fact that the Court was not required to place any particular weight on any part of the material admissible under those provisions of the THRO Act and could take into account the fact that it had not been tested by cross-examination, or that it contained hearsay, irrelevant material or non-expert opinion evidence. In addition, the Court had power to limit its use by making an order under s 136 of the Evidence Act 1995 (NSW).

Accordingly, the weight to be given to the items of evidence in the present case was given serious consideration. That evidence was not, however, disregarded simply because it might not fall within the meaning of “acceptable, cogent evidence” found in the Queensland high risk offender legislation considered in Fardon.

The expression “unacceptable risk” is not defined in the THRO Act. In light of the authorities concerning the same wording in other New South Wales high risk offender legislation, this phrase is to be given its everyday meaning in its context and having regard to the objects of the THRO Act (which have been set out above): Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58]. It can also be accepted that the test of whether a person poses such an unacceptable risk is an evaluative one that requires the exercise of discretionary judgment: Lynn at [82].

The evaluation of whether the risk is “unacceptable” must, by virtue of s 25(2), take into account the safety of the community as the paramount concern. This evaluation also depends on the mandatory considerations in s 25(3)(a) to (m), as well as any other relevant matters or circumstances. The exercise to be undertaken by the Court requires a focus not so much on guaranteeing the safety and protection of the community but on making the community secure from harm: Lynn at [61]. It also involves balancing the likelihood of the commission of the offence and the magnitude of the harm to the community if the risk does eventuate: Minister for Home Affairs v Benbrika [2021] HCA 4 at [192]. Thus, a low risk of great harm may be sufficient to establish an “unacceptable risk”, whereas a high risk of minimal harm may well be an acceptable risk, depending on the circumstances: Benbrika at [192].

Having regard to the terms of s 20(d) and the objects, scope and purpose of the THRO Act, the right of a person to his or her personal liberty after serving a term of imprisonment is not a relevant consideration in the evaluative task of assessing the relevant risk: Lynn at [44] and [55]-[56].

The risk that the Court is required to assess is the future risk of the defendant committing a “serious terrorism offence”.

In s 4(1) of the THRO Act, “serious terrorism offence” is defined as meaning:

Offences in Part 5.3 of the Criminal Code which fall within the definition of “serious terrorism offence” in the THRO Act were usefully summarised by Johnson J in his Honour’s preliminary judgment in this matter, State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [35], as including:

“Terrorist act” is relevantly defined in s 101.1(1) of the Criminal Code as follows:

In s 102.1(1) of the Criminal Code:

Islamic State and Jahbat Al Nusra, in various emanations, are organisations specified for purposes of par (b) of the definition of terrorist organisation in s 102.1(1): see for example Criminal Code (Terrorist Organisation—Islamic State) Regulations 2020 (Cth) and Criminal Code (Terrorist Organisation—Jabhat Fatah al-Sham) Regulations 2019 (Cth).

Section 11.2 of the Criminal Code extends the range of potential serious terrorism offences. That section provides:

From the terms of s 11.2, it follows that if, for example, a person counsels or procures the commission by another of an offence against Pt 5.3 of the Criminal Code that carries a maximum penalty of seven years or more, and the other requirements of s 11.2 of the Code are met, the person is taken to have committed “that offence”, which will be a “serious terrorism offence” within the meaning of the THRO Act. In other words, aiding, abetting, counselling or procuring a serious terrorism offence is also a serious terrorism offence.

The State’s evidence in this matter fell into the following categories:

None of the State’s witnesses who were cross examined was effectively challenged as to the truth or reliability of their evidence. Where a mistake, of no substantial significance, had been made it was readily conceded. Their evidence was properly qualified where appropriate. Overall, I formed the view that the evidence of these witnesses should generally be accepted. Where the State relied on documentary evidence whose authors could not be cross examined, my general conclusion was that it was admissible by virtue of ss 61 and 25(3) of the THRO Act but the weight that ought to be given to the material varied markedly depending on the nature of the information and the circumstances in which the documentation was apparently created.

It is appropriate to set out briefly here my reasons in relation to the evidentiary objections of general application that arose in these proceedings. In this regard, it can be noted that Johnson J in State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 dealt with objections to the admission of certain judgments under s 91 of the Evidence Act 1995 at [63] to [80]. I gratefully adopted his Honour’s conclusions and reasoning, so far as they continued to be applicable in the final hearing before me, and it is not necessary to repeat here Johnson J’s comments. I specifically note, however, that I agreed that limited weight should be given to the part of Bellew J’s judgment in R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 identified at [76] and [79] of Johnson J’s judgment and I adopted a similar approach when considering challenged portions of other judgments in matters in which the defendant was not a party and for which there was no independent evidentiary support.

Other particular evidentiary rulings were made during the hearing and are not dealt with in these reasons beyond what is set out in the paragraphs which follow.

The terrorism intelligence in the confidential exhibits was the subject of a terrorism intelligence application determined at the commencement of the hearing on 24 February 2021. The orders made on that occasion were as follows:

There was no dispute that the terrorism intelligence application was made by the Attorney General under s 59A of the THRO Act which relevantly provides:

The nature of such an application and the principles to be applied were helpfully set out in Johnson J’s judgment in State of New South Wales v Lawrence [2019] NSWSC 946. I gratefully adopt, without repeating here, his Honour’s analysis and reasoning generally except for one matter that I address below.

Given the nature of the information and the circumstances of its production to the Attorney General, it was accepted that the information to which the application related was provided to the Attorney General under Div 5.2 of the THRO Act. Accordingly, if the Court was satisfied that the information was “terrorism intelligence”, it was required by s 59A(2) to grant the application.

“Terrorism intelligence” is defined in s 4(1) to mean:

It is not appropriate in these reasons to identify in specific terms the material which was the subject of the application in the present case. It is sufficient to note that they were intelligence reports compiled by officers of the Australian Federal Police, the New South Wales Police and New South Wales Corrective Services responsible for gathering and analysing intelligence including intelligence in relation to the commission and prevention of terrorist acts which contravene the criminal law.

In State of New South Wales v Lawrence at [54], Johnson J expressed the view that the New South Wales Police Force and New South Wales Corrective Services were “intelligence agencies” for the purposes, among others, of par (a) of the definition of “terrorism intelligence”. It was not necessary for me to decide this point, since I was satisfied that all of the bodies whose reports were the subject of the application before me were “bodies involved in the prevention of terrorist acts”, as referred to in par (a).

Having regard to the evidence of Assistance Commissioner Walton of the New South Wales Police in both his open and his confidential affidavits and the contents of the intelligence, I was satisfied of the matters in pars (a), (c) and (d) of the definition of “terrorism intelligence”. Accordingly, I was required to grant the application. The nature of the orders made, in order to give effect to that conclusion, reflected the protection needed given the nature and contents of the reports.

Since the terrorism intelligence was contained in documents provided under s 58 of the THRO Act, my reasons for admitting these documents into evidence in the substantive proceedings were effectively the same as those which are set out below in relation to the other documents provided under that section.

The THRO Act contains s 61 which has the effect of rendering documents that have been provided to the Attorney General under Pt 5 of the THRO Act admissible, even though those documents would, or might, not otherwise be admissible under the Evidence Act in civil proceedings.

Division 5.2 of Pt 5 of the THRO Act contains ss 58 and 59, which permit the Attorney General to require or request the provision of “offender information”. Sections 58 and 59 are in the following terms:

“Offender information”, as referred to in each of these sections, is defined in s 57 as meaning:

“[T]he circumstances prescribed by the regulations” referred to in s 58 are those set out in cl 6 of the Terrorism (High Risk Offender) Regulation 2018 (the THRO Regulation). These circumstances include that the Attorney General may only require offender information:

For the purpose of identifying the relevant offender information referred to in cl 6, cl 7(1) of the THRO Regulation contains a list of specific records, reports and documents concerning identified subject matters. Further, cl 7(2) provides in effect that the Attorney General can require the provision of only “pre-existing documents”.

Material provided in response to a requirement or request under s 58 or s 59 becomes admissible by virtue of s 61 (which is also in Pt 5 of the THRO Act). Section 61 states:

Much of the State’s evidence was tendered on the basis that it was admissible under s 61.

Sections 58, 59 and 61 operate, however, in the context of other provisions of the THRO Act including, most significantly, s 50 which provides:

The interaction of these provisions was considered by the Court of Appeal in Lawrence v State of New South Wales [2020] NSWCA 248 (Lawrence). At [39] to [41], the Chief Justice made the following comments (with which Bell P and Leeming JA agreed):

Further, at [78], Bathurst CJ said:

These passages establish that documents provided to the Attorney General under s 58 or s 59 are to be admitted into evidence under s 61 but the Court must consider carefully the weight to be placed on the information in those documents. If, for example, the information is irrelevant, is hearsay, cannot be tested by cross-examination, is non-expert opinion evidence or is expert opinion evidence based on factual assumptions which have not been otherwise established, it may deserve reduced or no weight.

In addition, the Court can limit the use to be made of the evidence admitted under s 61 of the THRO Act as provided in s 136 of the Evidence Act.

In the present case, the defendant did not contend that any particular document tendered under s 61 of the THRO Act was not a document or report provided to the Attorney General under Pt 5 of the Act. Rather, Mr Prince of Senior Counsel, who appeared with Dr Lucy for the defendant, contended in relation to a substantial number of documents tendered by the State that although they might be admissible under s 61, they should not be admitted as their probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party within s 135 of the Evidence Act or that, in some cases, their use should be limited under s 136.

Since no specific submissions were made as to whether s 135 of the Evidence Act applied in respect of evidence expressly rendered admissible by s 61 of the THRO Act, I considered the defendant’s submissions on the basis that s 135 could apply in the circumstances. There did, however, appear to me to be a potential difficulty in holding that s 135 could operate to allow the Court to refuse to admit the documents properly tendered under s 61. Section 61 renders the evidence admissible. Section 50(2) of the THRO Act expressly provides “[t]o avoid doubt” that a provision such as s 61 “does not affect any rule of evidence with respect to the … probative value of the document, report or other information once it is admitted into evidence” (emphasis added). Thus, as the passages from Lawrence quoted above accept, s 136 of the Evidence Act can apply to evidence admitted under s 61. This is so because s 136 permits the Court to limit the use of evidence once it has been admitted. Section 135, however, only empowers the Court to refuse to admit evidence or a document and therefore is unlikely to apply “once it is admitted into evidence”.

Having regard what was argued before me, I was in any event of the view that the probative value of the documents to which objection was taken under s 135 was not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. In this context, “unfairly prejudicial” directs attention to risk or harm that evidence may be misused in some unfair way by the tribunal of fact: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [73]; Xie v R [2021] NSWCCA 1 at [782]. In the present case, the tribunal of fact was a judge with the benefit of submissions from experienced counsel for the defendant as to the weight that should be given to the documents admitted under s 61. In addition, Mr Emmett of Senior Counsel, who appeared with Mr Mykkeltvedt, for the State on a number of occasions very properly noted that care or caution was required in considering certain of the evidence admitted under s 61 because of factors such as the nature of the document, the circumstances in which it was apparently created and the inability of the defendant to cross examine the creator of the document. In the circumstances, I was of the view that there was no significant risk that the evidence would be used by me in some unfair way so as to be unfairly prejudicial to the defendant.

In addition, I was of the view that my primary task was to assess the future risk posed by the defendant of committing a serious terrorism offence if not supervised under an ESO. Future risk of this nature is not to be assessed on the same basis as a Court would determine whether the defendant engaged in certain conduct or had a certain state of mind, in the past. I accepted that material such as terrorism intelligence, allegations which appeared not to be groundless and other evidence that indicated that conduct may have occurred or circumstances may exist which could support a view that the defendant posed a relevant future risk had considerable probative value in the present case, on the assumption that it was accepted. This approach was, in my view, generally consistent with the approach to the assessment of future risk discussed in CXZ v Children's Guardian [2020] NSWCA 338, although the context in which the assessment was to occur in that case was very different from the present case.

Weighing those considerations, I was satisfied that the probative value of each of the documents involved was not outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. Accordingly, I was not prepared to refuse to admit the evidence to which objection was taken, assuming that s 135 of the Evidence Act was otherwise applicable.

On some occasions, Mr Prince SC contended that the Court should use its power under s 136 of the Evidence Act, preserved by s 50(2) of the THRO Act, to limit the use to be made of certain evidence admitted under s 61 of the THRO Act. When it came to formulating a limitation on use, however, I was unable to find one that would have been suitable in the circumstances where the Court’s task was to assess future risk. In each case, it appeared to me to be more appropriate to deal with any issues by way of the weight to be accorded to the evidence, in light of the relevant circumstances of each document and the parties’ submissions, rather than by seeking to impose an ill-defined limit on use under s 136.

While these reasons deal with all of the s 61 material to which objection was taken, I should mention specifically one document which I considered I was bound to admit under s 61 of the THRO Act but which caused me some concern for reasons which I shall explain. The document in question was a NSW Corrective Services Case Note Report (often referred to as an OIMS note) concerning a field visit to the defendant on 9 December 2020, after he had been released from custody and while he was subject to the ISO made by Johnson J on 25 November 2020. The maker of the report was described as a “Staff Member” and it is stated that he was in the company of an “EO”. I understand those letters to be an acronym of “Enforcement Officer”, as referred to in the conditions imposed as part of the ISO. Those conditions contained, inter alia, the following:

It was unclear whether the Staff Member was an Enforcement Officer under the conditions of the ISO. Nor was there any information as to his role, training or expertise, if any.

During the visit, in addition to asking the defendant questions on the topics set out in condition 3(i) to (iv) and discussing other matters relating directly to enforcement of the ISO, the Staff Member:

My concern with the document was that, assuming the report was accurate, the conversation took place in a context where the defendant was under compulsion to answer questions put by an Enforcement Officer concerning the matters in condition 3(i) to (iv) and was required, under condition 1, to submit to the supervision and guidance of any Enforcement Officer responsible for the supervision of the defendant and obey all reasonable directions of an Enforcement Officer. As a result, there was a significant possibility that the defendant was under the apprehension that he was compelled to make himself available for interview, as required by condition 2, and to answer the Staff Member’s questions, concerning:

There is also a significant possibility that such an interview and such questions went beyond what was covered by conditions 1, 2 and 3 of the ISO.

It has been held, in the context of the Crimes (High Risk Offenders) Act 2006, that there is nothing in that Act, apart from the requirement to attend examinations by psychologists or psychiatrists as a result of a direction under s 15(4) of that Act (which is equivalent to s 24(5)(b) of the THRO Act), that displaces the privilege against self-exposure to a penalty: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [117] to [119]. Similarly, in my view, there is nothing in the THRO Act, apart from the obligation to attend expert examinations if so directed and the requirements of any conditions to answer questions or provide information properly imposed as part of an ISO or ESO, which displaces the privilege against self-exposure to a penalty in relation to persons who are the subject of an ISO or ESO. Further, it appears to me that being subjected to the deprivation of liberty inherent in an ESO is a penalty for the purposes of that privilege.

The defendant objected to this report of the field visit on 9 December 2020 unless the Staff Member was made available for cross examination. He was not made available. In the absence of any indication in s 61 or elsewhere in the THRO Act that the admissibility of documents under that section was dependent on the authors of those documents being made available for cross examination, I was of the view that the document should not be found inadmissible on that basis.

Nonetheless, in the absence of any evidence as to whether the defendant was given the opportunity of refusing to answer the Staff Member’s questions designed to advance the Staff Member’s “agenda”, it was not clear that the defendant had been made aware of, and waived, his right to rely on the privilege against self-exposure to a penalty.

The defendant’s objection to this evidence focused on improperly obtained evidence and an analogy with interrogatories. It was not expressly formulated as being based on the privilege against self-exposure to a penalty but there is an obvious relationship between the two types of issues. The parties did not, however, have the opportunity of making submissions on the concern as I have outlined it above.

Nonetheless, to avoid injustice in all the circumstances and having regard to the fact that the Staff Member was not made available for cross examination, I took the view that the appropriate course was to admit the report into evidence but accord it no weight to the extent that it went beyond recording the fact that the interview took place and there were questions, answers and the provision of guidance, falling within what was specifically permitted and required by conditions 1, 2 and 3 of the ISO.

Both s 25(3), in relation to determining an application for an ESO, and s 39(3) in relation to determining an application for a continuing detention order (CDO) or, alternatively, an ESO, prescribe for the Court mandatory considerations in pars (a) to (m). The only difference is that in s 39(3)(h) the following words are included before the words that appear in s 25(3)(h): “for an extended supervision order—”.

At [76] of Lawrence, which has been quoted above, Bathurst CJ said that the Court is “at least implicitly required to admit material falling within s 39(3)”. The same observation can be made about material falling within s 25(3). Furthermore, essentially the same conclusion in relation to corresponding provisions of the Crimes (Hire Risk Offenders) Act 2006 was reached in State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 at [21] to [24].

Under s 25(3) of the THRO Act, the Court “must … have regard to the following matters” set out in pars (a) to (m). These include specified “reports”, “results of … assessment”, “program”, “options available”, “criminal history”, “views of the sentencing court”, “beliefs or commitments of the offender” and “any other information that is available as to the likelihood that the offender will commit a serious terrorism offence”. In order to give effect to provisions such as s 25(3), such material has to be admitted but it is a matter for the Court to determine the weight to be given to it, in light of the relevant circumstances and having regard to the submissions of the parties.

For these reasons, to the extent that the defendant objected to any of the State’s evidentiary material that fell within any of the pars in s 25(3), I considered it admissible by virtue of that subsection. Nonetheless, I considered carefully the weight to be afforded to that material. Otherwise and for substantially the same reasons as set out above in relation to ss 135 and 136 of the Evidence Act, I did not refuse to admit that material or place a limitation on the use that could be made of it in these proceedings.

The defendant’s evidence included:

There was no cross examination of any of the defendant’s witnesses and there was no reason advanced why I should not generally accept their evidence, which I did. The documentary evidence relied upon by the defendant was also generally accepted, subject to considerations of weight similar to those which applied in relation to the State’s evidence.

As has been noted above, the only substantive issue in these proceedings was whether the Court was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the ESO sought by the State. Before turning to my reasons for assessing the risk and the matters listed in s 25(3), it is useful first to set out certain aspects of the defendant’s background and then the circumstances of his relevant offending, all of which I also took into account.

In 1967, the defendant was born in Lebanon. He came to Australia with his family when he was about two years old. He speaks both Arabic and English.

The defendant attended school until about the age of 16 or 17, completing Year 10 at Arthur Phillip High School. He is a cabinet maker by trade and has worked in the mining industry and as a contractor doing labouring and odd jobs.

The defendant has six children, two sons and four daughters, with his wife, but it appears that he and his wife separated, perhaps as early as 2007. Nonetheless, they have maintained a civil relationship after separation.

The defendant is a devout Muslim and his beliefs are an integral part of his life. However, he is not, and has not claimed to be, an Imam or recognised Islamic scholar or teacher. He previously volunteered his time to assist as a salesman at an Islamic bookshop associated with Bukhari House. On 22 April 2013, the defendant told a Community Corrections staff member that he attended Mosque on a daily basis in the morning and at night and also attended a special prayer session on Fridays. He also said that he spent his spare time attending lessons and lectures and anything that would help his salvation.

Although the defendant engaged in some relatively minor offending from 1983 to 2003, the significant offending in the defendant’s criminal history is as set out in the paragraphs which follow.

Several years prior to mid 2011, the defendant introduced Mr Martinez to the Islamic faith and acted as his spiritual leader or guide assisting him in learning and understanding that religion, as the defendant understood it. Mr Martinez operated an electrical contracting company and employed Mr Zakaryah Raad as an apprentice electrician.

On 15 and 16 July 2011, Mr Martinez consumed alcohol and illicit drugs. Later on 16 July 2011, he contacted the defendant and asked for his help to get off drugs as he wanted to make a new start. In that conversation, the defendant said to Mr Martinez:

During another conversation with Mr Martinez approximately an hour later, the defendant told him to leave the front door open. The defendant then immediately contacted Mr Raad and directed him to attend Mr Martinez’s premises and take him to hospital if necessary. A short time later, Mr Raad sent the defendant a message “Allam, the Sharia bring right material. It’s important” and further messages were exchanged in relation to the involvement of Mr Raad and the defendant in a possible whipping with the number of lashes being in the vicinity of 40.

Mr Raad arrived at the premises about 10:45 PM and the defendant arrived at about 11:30 PM accompanied by two other persons. Mr Martinez woke up and was sufficiently sober to know what was going on. The defendant administered 40 lashes to Mr Martinez’s back with a coaxial cable while the other three held Mr Martinez down on the bed. The defendant counted out the lashes and after 10 gave Mr Martinez a break, whereupon he went into the bathroom and vomited. He was then forced back onto the bed and given 10 further lashes and then was given another break. Mr Martinez begged the defendant to stop and asked him to call or make contact with a sheikh to see if he deserved such punishment. One of the persons used a mobile phone and said in effect that he should receive 80 lashes and only sick or infirm people receive 40. The defendant assured Mr Martinez that the last 20 lashes would not be so bad and told him that he loved him, that he wanted him to be a good person and that the way he was going was ruining his life. The defendant reduced the number of loops of cord to lessen the blows. Mr Martinez suffered severe bruising as a result of the whipping.

When Mr Martinez reported the matter to Police he identified the defendant by name and description.

On 19 July 2011, the defendant was arrested but was released on bail. Mr Raad was arrested on the same day.

On 22, 23, 24 and 25 October and 17 and 18 December 2012, there was a hearing in the Local Court in relation to charges arising out of the whipping of Mr Martinez on 16 and 17 July 2011.

On 28 February 2013, Magistrate Maloney found, inter alia, the offences of assault occasioning actual bodily harm in company and stealing property in a dwelling proved against the defendant, Mr Raad and the two other participants. It appears that, on that day, the defendant was released on bail pending the sentence hearing.

On 14 June 2013, the defendant was before the Local Court for sentencing for the whipping office. In his remarks on sentence the learned magistrate noted that the defendant believed his action was justified based on his religious beliefs and he maintained his actions would help Mr Martinez address his alcohol and drug. It was also noted that the defendant acknowledged that Australia was not an Islamic state and that his actions were therefore illegal. Significantly, however, his Honour observed that the defendant was 45 years old. Of the other men involved, Mr Raad was 20 and another was 21. The situation was found to be that:

The magistrate imposed on the defendant a sentence of two years’ imprisonment with a non-parole period of 16 months in respect of the offence of assault occasioning actual bodily harm in company and a sentence of 12 months, to be served concurrently with that sentence, for the offence of stealing property in a dwelling.

On 24 June 2013, the defendant was released on bail pending an appeal to the District Court in respect of the whipping offending.

On 14 February 2014, the defendant’s appeal against his conviction for assault occasioning actual bodily harm in relation to the whipping of Mr Martinez in 2011 was rejected by the District Court but his sentence for the offence was suspended under a s 12 bond for two years. Bennett SC DCJ in his judgment found:

On 1 May 2013, Mr Milad Al-Ahmadzai, Mr Osama Toffic and Mr Wessam Hamze shot a person who had attended Arrows Nightclub, a venue which was described as a “Gay and Bi Sex Club”, in the car park of the club. The victim suffered life-threatening injuries but survived.

By 17 September 2013, the defendant had become aware of the Arrows Nightclub shooting and the involvement of at least Mr Al-Ahmadzai and Mr Toffic in that offending.

On 8 October 2013, Mr Al-Ahmadzai, and two days later Mr Hamze, were arrested in relation to the Arrows Nightclub shooting.

Shortly before 10 November 2013, Mr Hamze, who was in custody, told his wife to speak to the defendant and tell him to tell “Osama” to leave as soon as possible.

On 10 November 2013, Mr Hamze’s wife telephoned the defendant and they agreed to meet later that day. At that meeting the defendant was told to tell “Osama” to leave the country as soon as possible. In the presence of Mr Hamze’s wife, the defendant telephoned Mr Toffic and told him that he needed to return to Sydney straightaway regarding a “really serious” matter that could not be discussed over the telephone. The defendant and Mr Toffic arranged to meet at a place where there would be no CCTV recording and, in a face-to-face meeting, the defendant told Mr Toffic to leave the country because he was about to be arrested by police in relation to the Arrows Nightclub shooting.

On 11 and 12 November 2013, the defendant made arrangements to confirm that Mr Toffic was the person to whom Mr Hamze was referring.

On 13 November 2013, the defendant arranged to meet Mr Toffic again.

On 16 November 2013, Mr Toffic’s sister and mother bought an airline ticket in his name for travel to Germany via Abu Dhabi. The flight was due to leave at 9:50 PM that night. At 8:53 PM Mr Toffic was arrested by Police at Sydney International Airport.

The defendant’s offence of being an accessory after the fact to the Arrows Nightclub shooting occurred while he was on bail pending the hearing of his appeal in relation to the whipping offence. The accessorial offence was taken into account on a Form 1 when the defendant was sentenced in respect of the index offence.

On 15 May 2013, the defendant committed the index offence, while on bail awaiting sentence for the whipping offence.

Sometime in the early hours of 15 May 2013, the defendant drove Mr Al-Ahmadzai and another male to two locations in suburban Sydney where they stole a Ford van and a Toyota Tarago. At about 3:50 AM on that day, the three men drove the two stolen vehicles in convoy to Macquarie Shopping Centre. There, the Tarago was driven into the shopping centre, crashing through the glass front doors through the shops and directly into a group of freestanding automatic teller machines in an attempt to dislodge them. The Tarago was then reversed and driven into the ATMs for a second time. The Ford van was driven into the shopping centre behind the Tarago, did a U-turn and reversed close to the ATMs. The defendant was in the front passenger seat of the van. The defendant and the other two men had entered the shopping centre with the intention of stealing at least one of the ATMs after dislodging it using the Tarago and loading it into the van. As it happened, the defendant and his co-offenders were unsuccessful in dislodging the ATMs. The defendant and the two other men drove away in the van which they parked in a nearby suburb and set alight in order to destroy any forensic evidence. The defendant then drove the other two men back to Auburn in a vehicle registered in his son’s name and in so doing activated a speed camera on Pennant Hills Road. On receiving a speeding fine, the defendant’s son contacted the defendant who admitted that he had been driving the vehicle.

Between 23 May and 8 June 2013, the defendant told Mr Gebara about the speeding fine and he provided the defendant with the personal details of an employee, Mr Abu-Taer, including his licence details.

On 8 June 2013, a statutory declaration was completed in the name of the defendant’s son falsely asserting that Mr Abu-Taer had been the driver of the vehicle which had received the speeding fine after the ram raid at the Macquarie Shopping Centre.

On 10 July 2013, police investigating the ram raid at the Macquarie Shopping Centre spoke to the defendant’s son.

Between 10 July 2013 and 14 August 2013, the defendant had a number of discussions with Mr Gebara and Mr Hamze about ensuring that Mr Abu-Taer took the blame for the speeding fine associated with the ram raid.

On 29 November 2013, the defendant was arrested and charged with the offence of aggravated break and enter in company and other offences. He was refused bail.

On 3 December 2013, a search warrant was executed at the residence of the defendant and his family. Items were located in the garage including a CD entitled Syria Uprising and a series of lectures given by Anwar Al-Awlaki. Both Dr Farida and Prof Barton gave evidence concerning the significance of the items found in the garage of the defendant’s residence. I shall refer to this material below.

The defendant pleaded guilty to the aggravated break and enter in company offence, and asked that two offences of taking and driving a conveyance without consent, in addition to the Arrows Nightclub accessorial offence, be taken into on a Form 1.

On 27 November 2015, Judge Woodburne in the District Court at Parramatta sentenced the defendant to seven years’ imprisonment with a non-parole period of four years and three months. The charge of hindering the apprehension of a person included on a s 166 certificate was dismissed, as no order was sought.

Against that background, the risk posed by the defendant is to be assessed having regard to the matters in s 25(3)(a) to (m).

As noted above and as a result of the orders for examination made by Johnson J on 25 November 2020, the defendant was examined by:

Each of Dr Seidler and Dr Ellis provided reports on those examinations and these are the reports referred to in s 25(3)(a).

Dr Seidler provided a report dated 29 January 2021 and a supplementary report dated 11 February 2021. There was no doubt as to Dr Seidler’s expertise. She holds a bachelor’s and master’s degree in psychology, as well as a doctorate in philosophy in the area of cultural and interpersonal crime and a graduate certificate in terrorism and security studies. In my view, her opinions in the present case were not undermined to any extent by her acknowledged lack of expertise in Islamic theology or law.

Dr Seidler interviewed the defendant over a period of two hours and 20 minutes. He engaged readily at interview and impressed as a dynamic, engaging and likeable individual who was also humorous. After it was clarified that he could choose to leave if he wished, the defendant was cooperative with the assessment process. His manner was respectful and deferential, although Dr Seidler noted that he perseverated throughout the entire assessment with using an incorrect name for her despite being corrected a number of times initially.

In addition to her interview with the defendant, Dr Seidler reviewed a significant amount of documentation which was also before the Court on this application. She provided a summary of some of this documentation in her report.

As to his recent situation, the defendant told Dr Seidler that he had been released on 28 November 2020 after serving his full sentence. He noted that he had not been released on parole because he did not complete offence-focused programming. In this regard he was adamant that he “did everything” but “they were trying to trick me”. In relation to his ISO, he offered that he was ensuring that he was compliant with it but he expressed frustration that the conditions meant that he was unable to preach his religion to others which he described as “calling people to the pleasure of Allah”. In addition, he said that being restricted in his ability to associate with other people seriously limited his life, activities and opportunities.

The defendant described a positive family and developmental experience and denied a history of familial vulnerabilities in the form of criminality, mental illness or significant substance abuse. He conceded that he was the victim of sexual abuse during the developmental period but indicated that it did not occur within the family. There was nothing of significance reported in his occupational or medical history. He was separated from his wife but they maintained an amicable relationship and he said that he had been able to spend time with his children on a regular basis.

The defendant identified that he had a number of friendships with people that were important to him but he claimed that these people were all presently incarcerated. He also reported that he had applied for approval for contact with a number of friends but to date that approval had not been forthcoming. He expressed frustration with this, as well as resentment and dislike for the authorities, saying “they are so deceitful”.

The defendant “offered” that he was Australian citizen now and claimed to have taken this around the time of his marriage, although he could not recall why he became a citizen other than stating that he may have needed this in order to marry his wife. As to his cultural identity, he identified Australia as his home emotionally and said he identified as a “Muslim Australian”, his culture being Lebanese and his religion Muslim, but he was Australian.

In particular, he said that he liked Australia for the reason that he was allowed to practice his religion freely and added that “no Government can tell me I cannot worship my religion”. He said that he liked living in Australia as it was a beautiful country with many opportunities and his children lived here. Dr Seidler’s report then dealt with the defendant’s attitude towards law and government and recorded as follows:

As to the Australian people, he described this as “great” and said that that:

The defendant indicated that he had a strong commitment to his faith and this had involved his regularly attending Mosque in addition to attending lectures and other such events where he could learn more about Islam. He said that he would “100%” prefer to live in an Islamic state, claiming that this would be the desire of all Muslims. However, he added that in contrast to the Islamic State declared in Syria, any Islamic state that he would want to reside in would have to be “legit” and “authorised by the proper scholars”.

In relation to violence and extremism:

As to his relevant offending, the defendant:

Dr Seidler recorded that the defendant conceded that documentation from New South Wales Corrective Services that outlined his often aggressive, disruptive and non-compliant in behaviour in prison was accurate but he claimed that his behaviour was in response to the aggression of officers, specifically commenting that “if you are going to do you degrade my religion, I will be aggressive”.

As to rehabilitative treatment received while in custody, the defendant reported that he was not eligible for any programs in prison other than the PRISM program. Although he had originally offered to agree to participate in this program, he claimed to have been manipulated when he was informed that it was not a “de-radicalisation” program. In this context, he said that he was “not stupid” and “I know what you’re trying to do, you just lie”. With respect to his decision to cease participation in the program, he stated “You are all deceivers” who are “lying” and “manipulative”.

The defendant said that he did not believe he had any risks in relation to future offending relating to violence, violent extremism or otherwise. As to his future plans, he said he wanted to spend time with his family, to live free outside of prison and he said he was motivated to “mingle with (his) Muslim brothers”, and return to the workforce. Nonetheless he commented that if an ESO was imposed, he would comply because he believed that this was what Allah had determined for him.

Dr Seidler did not carry out any psychometric testing as part of the assessment but referred to previous assessments done and stated that she would not expect that the findings on any current testing to be significantly different. In this context, she stated:

Dr Seidler’s opinions included the following:

Dr Seidler then referred to the use of risk assessment tools in risk assessment for terrorism, and in this regard Dr Seidler acknowledged that:

Dr Seidler used the Violent Extremism Risk Assessment tool (version 2 Revised: VERA-2R), which is a structured professional judgement tool designed to evaluate an individual’s risk of future violence/offending motivated by extremist ideology. After considering the relevant indicators, Dr Seidler gave the following summary:

Whilst she was not of the opinion that the defendant would be responsible for an act of violent extremism or terrorism on his own, though this could not be discounted, it was Dr Seidler’s view that it was far more likely that his involvement in such activity would be through his connections with others who hold a similar ideology and who seek to action such a plan. In other words, he “would likely provide support, encouragement and some organisational assistance rather than be the person carrying out the act of violence himself.”

Dr Seidler also opined that:

Specifically, in relation to psychological disorders, Dr Seidler was of the view that:

Dr Seidler’s supplementary report of 11 February 2021 was provided in response to a request to her to consider further documentation and whether it changed her views. That documentation including material the substance of which was also before the Court. In Dr Seidler’s opinion, this additional documentation supported her initial assessment and the identification of the relevant risks posed by the defendant. Her opinion remained unchanged and, if anything, the documentation reviewed for the supplementary report served to strengthen her assessment and the concerns she identified that needed ongoing management.

Dr Seidler was cross-examined. She made appropriate concessions and acknowledged one factual mistake in her supplementary report. Her handwritten notes were produced and admitted into evidence. Dr Seidler’s factual assumptions were not shown to be unsound and her reasoning and opinions were logical and satisfactorily explained. In these circumstances, I accepted her evidence and took into account her opinions. Nonetheless, I did not treat her opinion as to the risk posed by the defendant as, by itself, determinative of that matter. This approach was based, at least in part, on the acknowledged lack of predictive reliability of the risk assessment tool relied upon by her.

Dr Ellis conducted a clinical interview with the defendant on 5 January 2021 for three hours. He was also provided with documentation concerning the defendant’s case which he reviewed. Dr Ellis provided a report dated 27 January 2021. Dr Ellis is a formally trained forensic psychiatrist in public and private practice and holds the post of Clinical Director and Medical Superintendent of The Forensic Hospital. He is also the Chair of Advanced Training in Forensic Psychiatry for the Royal Australian and New Zealand College of Psychiatrists. He is Consulting Psychiatrist to the New South Wales State Protection Group, Police Negotiator Unit, Countering Violence Extremism Unit and Fixated Threat Centre. There was no challenge, in these proceedings, to his expertise.

After recounting noncontentious aspects of the defendant’s personal history, Dr Ellis recorded that the defendant did not “self identify” with any psychological problems and noted that he reported his physical health was good.

Dr Ellis noted that the defendant said he was frustrated by being questioned about Islam by people of non—Islamic faith and, although he has tolerated this questioning thus far, he said that he became anxious when he is questioned by officers about Islam. Dr Ellis recorded two particular comments in this regard:

As I understood the situation, this comment was not made in respect of any of the lawyers acting for the defendant in these proceedings. Nonetheless, and in view of the defendant’s reluctance to declare his position in relation to terrorist organisations or acts of terrorism, stating that it was not for him to judge and that he would defer to Islamic scholars or “men of knowledge”, it appeared that there was a significant risk that the defendant used phrases given to him by others to cloak, or avoid disclosing, his ongoing support for terrorist organisations and persons engaging in terrorist acts.

As to his psychiatric history, Dr Ellis noted a screening measure of intelligence completed in 2018 placed him in the low average range. In the same year two self-report personality questionnaires indicated that he tended to over-report virtuous traits and under-report common minor faults, rendering the interpretation of the measure invalid. In addition, in 2018 in a self-report questionnaire the defendant:

As to the 2011 whipping offence, the defendant said to Dr Ellis that he took authority which he did not have, in relation to administering Sharia law. He reported that the 2013 ram raid offence was motivated by money and that he was close with his co-offender and each of them talked the other into doing the offence. He said he had no intention of repeating this behaviour. As to the Arrows Nightclub accessory offence, he said this was done in order to “protect a friend, my Muslim brother” and, now, he would advise people to seek advice from “men of knowledge” if they found themselves in trouble with the law. Dr Ellis then recorded that the defendant was “more circumspect in discussing matters that have not been adjudicated”. It was also noted that the defendant reported that he “engaged with a wide range of ‘Muslim brothers’ and would never turn away a fellow Muslim”.

In relation to the defendant’s current attitudes, Dr Ellis recorded that the defendant said:

Dr Ellis diagnosed a personality disorder on the basis of his superficial emotional responses over a lengthy interview, his poor function in relationships, repeated impulsive acts and diffuse self-identity. In addition, the psychiatrist noted that there was:

In summary, Dr Ellis was of the opinion that “the overall pattern of presentation is consistent with a personality disorder with antisocial and narcissistic features” but there was no evidence of a major mood or psychotic disorder.

Dr Ellis then considered the applicant’s risk of violence by reference to the HCR – 20 V3 structured professional judgement tool and concluded that the defendant would fall into a group of persons with a risk for violent offending that is moderate in frequency with potential for serious consequences in his specific case only when engaged with others who would participate in violence with him. As a consequence, Dr Ellis was of the view that the defendant would be considered an overall less risk of committing a serious general violent offence than other violent offenders released from custody.

As to the risk of serious terrorism offences, Dr Ellis relied on the “investigative template” provided by the Terrorist Radicalisation Assessment Protocol (TRAP – 18) template based on patterns displayed by Islamic, right-wing and single issue terrorists who completed targeted violence as well as the VERA-2R instrument, referred to above. Dr Ellis’s conclusions in relation to these matters were as follows:

Finally, Dr Ellis noted that the major areas of concern in relation to the defendant were association with, and promotion of, terrorist activity. It was also noted that his style of communication was vague and he was likely to derive some excitement from testing limits and this may lead to repeated infractions of rules. It was also the doctor’s opinion that, from a psychiatric risk management perspective, a period of two years’ supervision was considered reasonable in order to improve function in the community and refine the appraisal of risk. Dr Ellis recorded his opinion that:

Like Dr Seidler, Dr Ellis was provided with additional material, being material that was before the Court, and requested to provide a supplementary report. In his supplementary report of 19 February 2021, Dr Ellis said that the information did not fundamentally change any opinion expressed in his previous report. Indeed, the information regarding other people he may have had contact with who had criminal and terror-related charges confirmed him in his opinion that the defendant may be susceptible to influence by others. Finally, Dr Ellis said:

Dr Ellis was cross-examined and accepted that neither he nor anyone else had the ability accurately to predict human behaviour in an individual person for future events and that, as he stated in his first report, no tool specifically assessed for serious violent offending which would constitute a serious terrorism offence and those type of offences were rarer, and thus statistical methods were unable reliably to detect them in large samples. Dr Ellis explained his working notes for the application of the TRAP-18 tool.

I found Dr Ellis, like Dr Seidler, to be an impressive witness who gave properly considered and qualified answers in cross examination and whose opinions appeared well found and were explained logically and persuasively. I accepted his evidence but, once again, I did not consider that his opinion as to the defendant’s risk of engaging in violent or terrorist activities was determinative of the issue that the Court must decide. Rather, I treated it as material I should take into account when forming my own view as to the relevant risk posed by the defendant.

Dr Michael Davis is a consultant forensic psychologist who provided a report dated 22 February 2021 which was tendered by the defendant. In essence, Dr Davis’s evidence was that there is currently no validated way of assessing the risk of recidivism for terrorism offences. This was said to be because the base-rate of recidivism was far too low to enable such assessments to occur without an overwhelming number of false positives. It was also said that none of the extant tools have been validated in terms of their predictive validity, although he said that the TRAP-18 has shown a particular form of “postdictive” validity. Dr Davis also described the difficulties inherent in defining risk categories in relation to the risk of terrorism recidivism.

Dr Davis was not cross examined and, as I understood it, Dr Seidler and Dr Ellis did not fundamentally disagree with Dr Davis’s observations concerning the lack of predictive validity, in an actuarial or statistical sense, of the tools or templates employed.

In relation to the use of risk assessment tools and templates employed by the experts, namely VERA-2R in the case of Dr Seidler, and both VERA-2R and TRAP – 18 in the case of Dr Ellis, the defendant submitted that these tools do not provide a proper evidentiary basis upon which the Court may assess risk of terrorist-related violence, let alone the risk of the defendant committing a serious terrorist offence. It was said that in the absence of any capacity to anchor risk to statistical expressions of likelihood, the field of discourse concerning the risk of a person committing a terrorist offence depends upon unsupported speculation and cannot properly be described as knowledge that has arisen out of training, study or experience in the sense described in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [38]-[39].

In response to this, the State acknowledged that the Court must be mindful of the limitations of predictive tools, a submission that reflected the candour of responses given by both Dr Seidler and Dr Ellis in cross-examination on this issue. The State did not submit that the results of these tools should be a substitute for the Court’s final evaluation of risk nor did the State shy away from the rarity of the events that the tools were attempting to predict. Rather, it was submitted that these tools assist the person conducting the assessment to evaluate an individual by reference to a number of indicators that have been established, through empirical research, as having a relationship to violent extremism, terrorist violence and the radicalisation process, as Dr Seidler pointed out at par 137 of her 29 January 2021 report.

Even though Dr Davis’s evidence was accepted, it did not fundamentally undermine the opinions of Dr Seidler and Dr Ellis. The tools or templates Dr Seidler and Dr Ellis used were appropriate in assisting them to form their opinions, by way of structured professional judgements and not actuarial or statistical predictions, as to the relevant future risk posed by the defendant. The evidence of Dr Seidler and Dr Ellis, viewed as a whole, did fall within their respective areas of specialised knowledge based on their training, study or experience. Further and in any event, their evidence concerning their evaluations using the tools and templates referred to was but one of many matters taken into account by the Court in accordance with s 25(3) and other provisions of the THRO Act when making its assessment of whether the defendant posed a relevant risk for the purposes of s 20(d).

Dr Seidler’s evidence was essentially consistent with that of Dr Ellis, although their fields of expertise differed. Both acknowledged that their assessments could involve an element of confirmation bias and both indicated that they exercised caution in order to avoid distortion from such a bias in their opinions.

Dr Seidler was not prepared to make a psychological diagnosis of an antisocial personality disorder, on the basis of her interview with the defendant, whereas Dr Ellis was prepared to make a psychiatric diagnosis of personality disorder with antisocial and narcissistic features. I accepted that this was a legitimate difference of opinion based on different interviews and fields of expertise and did not undermine the credibility or reliability of either the psychologist’s or the psychiatrist’s opinions.

I accepted that the analyses of the risk factors by Dr Seidler and Dr Ellis were largely consistent and that the defendant presented a high risk of extremist violence and displayed a moderate number of the characteristics associated with terrorist related violence. I also accepted that the primary risk was related to the defendant’s association with, recruiting for, and promotion of, terrorist activity. As explained above, I took these matters into account without treating them as determinative in relation to my assessment of the risk posed by the defendant.

Ms Dewson, a forensic psychologist, prepared a risk assessment report dated 28 September 2020 and a supplementary report of 11 November 2020. As was his right, the defendant did not consent to participate in any interview with Ms Dewson and, as a result, her assessments were based on “file information only”. In light of this and the later reports of Dr Ellis and Dr Seidler based on lengthy interviews with the defendant, Ms Dewson’s reports attracted less significance than they might otherwise have been the case.

I have taken into account Ms Dewson’s opinions but, in the circumstances, it is not necessary to summarise here in great detail her reasoning, which is largely consistent with that of Dr Seidler and Dr Ellis. It is sufficient to note Ms Dewson’s opinions that:

After considering additional information provided to her, Ms Dewson revised her opinions, as set out in her supplementary report. Her revised opinions included that the defendant actually fell in the high risk category and she went on to explain:

Ms Dewson was cross examined, including in relation to the VERA-2R tool and the training she received in relation to it. She confirmed that when she used the term “violent extremism” she was referring to politically or religious motivated acts of violence. She also said that the result of the risk assessment process was to come up with likely scenarios, and the likely scenarios for the defendant had been outlined in her report. Ms Dewson also acknowledged that:

Nothing in the cross examination caused me to discount the opinions expressed by Ms Dewson.

There were no specific reports or similar material which addressed the matter in s 25(3)(c) although, on my understanding, the result of assessments of similar persons was the basis of the professional and scientific literature that each of the experts, Dr Seidler, Dr Ellis and Ms Dewson, relied upon in forming their opinions and providing their reports.

Two of the reports of Ms Dewson have already been considered above. To the extent that the PRISM report falls within the matters in s 25(3)(d) or (e), as well as (f), I note that it is dealt with under the next heading.

The defendant’s participation in treatment or rehabilitation program, such as it was, was in effect the subject of the PRISM Assessment Report dated 12 November 2018 prepared by Matthew Wade and Stephanie Scott-Smith, psychologists with the PRISM, CVE Programs of New South Wales Corrective Services.

This report was considered by Dr Seidler, Dr Ellis and Ms Dewson and, given its age and the fact that it has been so considered, the PRISM report can be dealt with relatively briefly. Two significant matters were to be noted.

First, the PRISM report contained positive aspects as to the defendant’s appropriateness, at the time it was prepared, to participate in the PRISM program, notwithstanding the negative aspects of the defendant’s case. In this regard the report included:

It appears that, unfortunately, when parole was refused the defendant disengaged from the PRISM program and did not participate in any treatment. He also made the negative comments referred to by Dr Seidler concerning the officers involved in his treatment.

Secondly, the report raised questions as to the defendant’s truthfulness and reliability including the following:

In my view, the PRISM report supported, and was consistent with, the assessments made by Dr Ellis, Dr Seidler and Ms Dewson. Its conclusions appeared well founded and were adequately explained. I took it into account in forming my assessment of risk.

On 17 April 2019, some time after the defendant had been refused parole, the defendant wrote to the PRISM team and the State Parole Authority informing them that he would no longer talk, see or engage with them in any way, stating that he would no longer validate what he described as a lying, hypocritical and manipulative process.

The reports to which I have already referred included options available to reduce the likelihood of the defendants reoffending. In the interests of the appropriate brevity, it is sufficient to note here that the experts were generally of the view that supervision of the defendant was required in this regard and that an ESO with appropriate conditions, rather than a CDO, would be adequate and preferable.

In the absence of any evidence that the defendant has failed to comply with his ISO and given his comment to Dr Seidler to the effect that if an ESO was imposed, he would comply because he believed that this was what Allah had determined, I accepted that the defendant was likely to comply with an ESO.

In reaching my conclusion set out in the preceding paragraph, I was also mindful of the fact that the defendant committed offences in 2013 while he was on bail in respect of various aspects of the 2011 whipping offence. Given his service of a substantial sentence of imprisonment, his being refused parole, his mature age and the material referred to in the preceding section, I did not think that his failure to comply with relevant bail conditions in 2013 indicated that, in his present circumstances, he was unlikely to comply with an ESO.

I have referred in some detail to the circumstances of the offending involved in the defendant’s relevant criminal history and it is not necessary to repeat that here. I accepted that the offending demonstrates a preparedness to use violence in aid of strongly held beliefs as to religious matters, to engage in group-based violent conduct in association with offenders with extremist leanings and to support and protect his co-religionists even if they have engaged in extremely violent activities.

Some of the remarks made by the Courts in dealing with the 2011 whipping offence have been set out above. In relation to the index offence, Woodburne DCJ in her remarks on sentence said:

Her Honour’s comments concerning lack of remorse, his prospects of rehabilitation and his likelihood of reoffending are consistent with the experts’ reports and tended to confirm the State’s case.

There was a substantial volume of material before the Court which directly or indirectly gave an indication of the defendant’s beliefs and commitments in relation to supporting terrorism activities. This included evidence of statements made to, and assessments by, the various psychologists and the psychiatrist who reported on the defendant at various times, his conduct before and during his time in custody, the material found in his garage when a search warrant was executed, his associations and his communications with family and associates. Some of this material has already been referred to and it is not repeated here.

In relation to the defendant’s beliefs, the Court was assisted in relation to identifying and understanding terrorism activities, terrorist groups and violent extremism by the evidence of Dr Farida and Prof Barton. Both of these experts were cross examined but their opinions were not effectively challenged. There was no evidence which contradicted their evidence nor was there a basis for concluding that their opinions were unreliable or not soundly based. Their evidence was accepted.

Dr Farida holds a Bachelor of Arts and Sciences in public administration from the American University of Beirut, Master’s degrees in International Affairs from the Lebanese American University of Lebanon and in Politics and International Relations from the University of New South Wales as well as a doctorate in philosophy in security studies and criminology from Macquarie University. She is qualified to express expert opinions concerning terrorism and political violence, especially in relation to Islam in general and in relation to Islam in the Middle East in particular. Her report provided useful background for understanding the rise of Islamic associated terrorism in Australia and other parts of the world during the twenty-first century.

More specifically, Dr Farida was asked to express her opinion concerning whether the material found in the defendant’s garage, when the search warrant referred to above was executed, was associated with or reflected violent extremist ideology or was material promoting or supporting terrorist activities. She expressed the opinion that, while some of the material did not fall into these categories, the documentary Syria Uprising fell into the category of violent extremist ideological material. Her evidence was that this material was made by Al-Nusra Front or Jabhat al-Nusra and shared similar features to ISIS propaganda videos in its themes and features. The themes included power, violence, vengeance, benevolence, Islamic morality, warrior training and apostasy from Islam by ISIS’s opponents. The type of action promoted included active attempts to convert non-Muslims and to use violence to uproot a society in order to change it to an Islamic state.

In addition, the material by Anwar Al-Awlaki, found in the defendant’s garage, was said to be of concern because his statements have been instrumental in radicalising youth who went on to fight in Syria or to commit terrorist attacks in the United States. Dr Farida also mentioned that material of the nature found could motivate radicalised behaviours that reflected a strict adherence to extremist ideology that Al-Qaeda and ISIS represented.

In relation to the 2011 whipping offence, Dr Farida noted that the administering of corporal punishment:

Dr Farida also viewed a photograph of the defendant with Mr Alqudsi with his finger raised, during a protest in 2012, and noted that this sign had been affiliated with violent extremism being widely used in videos depicting violent Islamist figures. She said:

Prof Barton holds a Bachelor of Arts (with honours) from Monash University in Asian Studies and a doctorate in philosophy from that University focused on liberal Islam in Indonesia. Since about the turn of the twenty first century, Prof Barton has turned his research attention to violent Islamism. From 2007, he has been closely involved with the Global Terrorism Research Centre and has been involved with the Hedayah Centre for countering violent extremism. He has recently researched extensively IS and ISIS and the approach of this movement to recruitment and radicalisation.

Like Dr Farida, Prof Barton was of the view that the presence of lecture sets of Anwar Al-Awlaki in the material found in the defendant’s garage was a matter for significant concern, stating that:

I pause to note here that Prof Barton did accept, in cross examination, that Salafi extremism may embrace peaceful as well as violent extremism.

Prof Barton was also of the opinion that the presence of the Syria Uprising material was concerning in that this material:

In relation to the administration of corporal punishment for drug taking, as in the 2011 whipping offence, Prof Barton was of the view that the championing of such corporal punishment was largely the domain of Islamist extremists. He noted that non-violent Salafis, while approving of such punishment in Saudi Arabia, would not campaign for its implementation in other nations. In his view, the conduct involved in the whipping offence did not reflect typical non-violent Salafi practice and was therefore suggestive of the influence of Salafi-jihadi violent extremism as seen in the behaviour of “AQI, ISI, and ISIS”.

Prof Barton was of the opinion that the contents of the ISIS propaganda video relating to Mr Raad were:

As to the defendant’s reported refusal to stand to acknowledge the court in other matters, Prof Barton explained:

Prof Barton also expressed views that the defendant’s communication with others including his family was consistent with violent Salafi extremism.

As to the 2012 protest in the Sydney CBD, Prof Barton reviewed video footage and photographs and concluded that the content of some of the placards and signs was “very extreme and strongly aligned with Salafi jihadi violent extremism”.

Finally, it can be noted that Prof Barton provided background as to the emergence of Jabhat al-Nusra and related matters. This included the opinion that:

The evidence of Dr Farida and Prof Barton assisted to understand the significance of other parts of the evidence. Their opinions, together with the other evidence, some of which has been referred to above and some of which is dealt with below, led to the finding that the defendant held beliefs consistent with supporting terrorism activities, including terrorist acts committed by others or the activities of terrorist organisations.

For example, and without attempting to be exhaustive, the defendant’s beliefs and commitments could be inferred from his actions when participating in a protest in the Sydney CBD against a film perceived to be anti-Islamic, on 15 September 2012. The defendant was photographed on that occasion standing in Pitt Street Mall with his arm around Mr Alqudsi, who is seen displaying a single raised index finger, which the evidence of Dr Farida established could “in some contexts” be affiliated with terrorist organisations or related organisations, such as ISIS, Al Nusra Front, Al-Qaeda and Jaysh Al-Islam (Brigade of Islam).

Video footage of the protest included the defendant speaking, in English and in another language, to a group of men. One of those carried a sign reading “Behead those who insult the Prophet”. An ISIS flag was also displayed at the protest. Later in the day, the protest involved some violent confrontation with police, although the State did not suggest that there was any evidence that the defendant participated in the violent confrontation or incited such participation. The banners and signs displayed as part of that protest were, in Prof Barton’s opinion, strongly aligned with Salafi jihadi violent extremism.

Further insight into the defendant’s beliefs and commitments was derived from his comments when being interviewed by Dr Ellis and Dr Seidler. In those comments, he expressed support for the activities of terrorist organisations, with the only substantial qualification being that that he did not support such activities or organisations if they oppressed or harmed other Muslims. This evidence has been referred to above in greater detail. Statements to Dr Seidler and Dr Ellis illustrative of his beliefs and commitments, and the qualification on his support for terrorism and terrorist organisations, included:

In light of Dr Farida’s and Prof Barton’s evidence concerning the 2011 whipping offence, it was also significant in ascertaining his beliefs and commitments that the defendant stated to Dr Seidler that he would “never renounce the act” involved in that offence, although he acknowledged under Sharia law he personally did not have the authority to carry out the punishment.

These conclusions as to the defendant’s beliefs and commitments concerning terrorist acts or activities took into account the opinions of the psychologists and the psychiatrist as to the likely unreliability of the defendant’s apparently positive or “pro-social” statements in these regards, given the findings in relation to the defendant’s performance in relation to “Impression Management” and “Self-Deceptive Enhancement” referred to above.

Similarly, it was concerning that, as the defendant told Dr Ellis, he was apparently given phrases that he could use when he felt anxious at being questioned concerning his beliefs.

Having regard to both of those matters, it was necessary to take into account, when assessing the defendant’s statements as to his current beliefs and commitment, that his refusing to pass judgement and deferring to “men of knowledge” or scholars, may well have been either a deliberate or unintentional mechanism that allowed him to answer the questions without disclosing the actual extent of his support for terrorist acts or activities and organisations.

Having regard to the evidence referred to above and the evidence of the defendant’s associations and conduct in custody dealt with below, it was concluded that the defendant’s beliefs and commitments were such that he was and remained prepared to:

The “other information as to the likelihood that the defendant will commit a serious terrorism offence” included information concerning:

Some relevant aspects of this material have been referred to above. In the paragraphs which follow are additional matters which were taken into account.

The material found in the defendant’s garage has already been referred to in relation to the evidence of Dr Farida and Prof Barton. The defendant submitted that the evidence did not establish that this material was in his possession and, consequently, no relevant inference could be drawn as to the defendant’s beliefs and commitments or the risk he posed. This submission was not accepted. While it may not be able to be concluded that the material was in the possession of the defendant for the purposes of determining whether he had committed an offence of possessing that material, the presence of the material was relevant for the different purpose of assessing the future risk posed by the defendant. Thus, it was relevant that there was a real possibility that the material in the defendant’s garage was material which:

The evidence of Dr Farida and Prof Barton established that this material in the defendant’s garage reflected belief in, and could engender commitment to, violent Salafi extremism which involved support for terrorist organisations and for engaging in, or encouraging, terrorist acts or activities. Thus, the presence of this material contributed to establishing that there was a substantial risk of the defendant committing a serious terrorism offence if not restrained by an ESO.

The applicant’s relevant conduct in custody was principally recorded in the OIMS notes relating to the defendant. There was, however, evidence of a gaol visit to the defendant by four young men on 2 November 2014 which warranted specific attention. Further relevant information in this regard was provided by the decision of the State Parole Authority to refuse the defendant’s application for release on parole.

Extracts from the NSW Corrective Service’s OIMS notes concerning the defendant’s conduct while in custody and while subject to the ISO were in evidence. It was noted that the defendant had conceded in his interview with Dr Seidler that these records were generally accurate but he claimed that his aggressive or disruptive behaviour was in response to the aggression of officers, specifically commenting that: “if you are going to do you degrade my religion, I will be aggressive”. Relevant incidents disclosed in those notes included those referred to in the following paragraphs.

On 5 March 2014, the defendant posed questions to Corrective Services personnel regarding the conducting of Muslim prayers. When advised that staff constraints meant that this could not be facilitated, he said he would commence prayers in the exercise yards, only to be then informed that such prayers would not be permitted in this way. It was observed that the defendant seemed to be the “mouth piece” for Muslim inmates in a particular wing of the gaol.

On 7 April 2014, it was reported that the previous week inmates had been offered an opportunity to attend Chapel to pray, 15 inmates at a time. However, the inmates did not like the idea of attending without the defendant and therefore refused to attend.

On 24 October 2014, senior Corrective Services personnel discussed with the defendant his re-integration back from segregation into the main section of the gaol, provided that he agreed to keep his beliefs to himself. The defendant would not give a guarantee that he would do this. On 28 October 2014, this issue was again raised with the defendant and, once again, he refused to provide a commitment to keep his beliefs to himself and cease seeking to convert others to Islam, as he understood it.

On 22 March 2015, two inmates approached NSW Corrective Services officers and stated that the defendant had attempted to convert them to Islam. On 30 April 2015, the defendant was seen handing out leaflets on Islam to other inmates and talking with them regarding religion, only to cease doing so when approached by Corrective Services personnel.

On 20 September 2015, after an inmate yelled at Corrective Services personnel about bruises on his face, the defendant yelled at the officers that they would have their heads cut off.

On 25 April 2017, during a personal telephone call to his son, the defendant referred to ANZAC Day as “Kafir Day”.

On 4 July 2018, when discussing the conversion of inmates to Islam and the possibility of these conversions being viewed as imposing extremist views, the defendant was informed that he would have to do everything possible to avoid being linked to anti-social aspects of his religion. The defendant replied that stopping him from publicising his faith would be akin to asking him to cease certain bodily functions. The defendant also disputed the notion that he was converting people, clarifying that, since his belief was that all people are born Muslim and merely stray from the path of Islam, he was not engaging in conversion but reversion.

On 7 December 2020 while the defendant was subject to the ISO, Enforcement Officers conducted a field visit to the defendant at his home, where it was recorded that he presented as polite and amicable. During the appointment, the defendant made a number of requests, particularly in relation to visiting other members of the Islamic community, including Ahmed Hraichie, the father of Bourhan Hraichie, and a number of “brothers” who wanted to see him in the community. It was explained to the defendant that there was a process for vetting people before he could associate with them on his schedule. During conversation, the defendant stated that he believed the highest calling for a Muslim was jihad, which he clarified as “jihad overseas.”

In relation to the applicant’s conduct while in custody, the gaol visit which the defendant received on 2 November 2014 deserved particular attention. On that occasion, four younger men arranged to visit the defendant at the Goulburn Correctional Centre. The young men were:

This visit was recorded on CCTV and the video footage was before the Court together with a transcript of what was said at that meeting in so far as it could be heard. I was taken to parts of the video footage during the hearing. A summary together with still photographs from the footage was part of the evidence relied upon by the State.

This visit on 2 November 2014 lasted for over two and a half hours. Having viewed part of the video and reviewed the transcript and the summary document, I was more than comfortably satisfied that it was not correct to describe the visit as “a bunch of men hanging out with each other and chatting away and laughing and just talking with each other” or “just a bunch of guys messing up”, as Mr Prince SC submitted.

The visit involved at times one or other of the participants whispering to the defendant, so as not be able to heard on the recording of the visit and at other times some of the men making noises, for example by scraping or tapping a can on the table or singing, to cover what was being said by one of the them to the defendant. Mr Prince in his submissions acknowledged that this conduct was “suspicious” but contended that it did not establish:

The contents of the discussion included references to the Parliament, Government or Ministers, sometimes in disparaging terms, for example:

The transcript of the meeting also recorded as follows:

It was clear that the four young men regarded the defendant as a mentor, leader or guide in relation to what they were discussing.

Finally, it can be noted that the transcript recorded as follows:

This visit was most significant because of the nature of the apparent relationship between the defendant and his visitors and because of what three of the visitors had done or went on to do.

First, Mr Khalid was convicted of conspiring within a short period after the gaol visit, that is between 7 November and 18 December 2014, with others (not including the defendant) to commit a serious terrorism offence, namely doing acts in preparation for a terrorist act or acts, contrary to ss 11.5 and 101.6 of the Criminal Code: see R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365. On appeal, Mr Khalid’s sentence was reduced to 20 years with a non-parole period of 15 years, see Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73.

From those judgments, it appears that Mr Khalid was arrested on 23 December 2014. He eventually entered a late plea of guilty. He was 20 years old at the time of the offending and 22 at the time of sentencing. The Police facts in evidence at the sentence hearing described Mr Khalid as the “leader of the group” that conspired to do acts in preparation for, or planning of, a terrorist act or acts. The terrorist act was to involve firearms and was to be a religiously inspired act of terrorism, namely violent Jihad. The specific act or acts and the proposed target or targets were unresolved by the time Mr Khalid was arrested but the general proposal included the killing of a member or members of either the NSW Police Force or the Australian Federal Police and/or attacks upon government buildings.

The facts before the sentencing judge expressly included the following:

Later in those facts, it was recorded:

The facts in that case also referred to Mr Khalid’s gaol visit to the defendant less than a week before the conspiracy commenced in the following terms:

Considerable care must be taken with this material apart from the information concerning the gaol visit which was confirmed by the recording and the transcript. The ideological beliefs of Mr Khalid and his telephone conversation with IM were not able to be tested and I attributed substantially reduced weight to this material. Nonetheless, I was satisfied that this material deserved some weight and could contribute, together with other material, to a finding concerning the extent of the risk posed by the defendant.

The defendant continued to associate with Mr Khalid while both were in custody.

Secondly, Mr Osman, who is Mr Al-Ahmadzai’s brother, was sentenced to a term of imprisonment of 18 months for three offences of contravening a control order contrary to s 104.27 of the Criminal Code, which I note is not a serious terrorism offence. That sentence expired on 22 November 2020. On 19 November 2020, an order was made imposing an interim supervision order on Mr Osman under the THRO Act: State of New South Wales v Osman [2020] NSWSC 1646. On 23 February 2021, Harrison J imposed an ESO on Mr Osman and directed he comply with the conditions in the schedule to that order: State of New South Wales v Osman [2021] NSWSC 124 at [47].

Thirdly, Mr Al-Talebi was later convicted of attempting to send funds to Islamic State between about July and September 2014 contrary to s 102.7(1) of the Criminal Code, which is a serious terrorism offence. The defendant continued to associate with Mr Al-Talebi while both were in custody.

It was also noted that, on 11 December 2018, the State Parole Authority determined that the decision to refuse the defendant parole, which had been made on 12 July 2018, was to stand, on the basis that the Authority was not satisfied that the offender would not engage in, incite or assist others to engage in terrorist acts or violent extremism. While this fact is far from determinative in assessing the risk posed by the defendant for the purposes of s 20(d) of the THRO Act, it is a matter that may be taken into account as confirmatory of other findings even though, by itself, it deserves only limited weight.

Based on all of that material, it appeared that:

There were confidential and non-confidential intelligence reports and similar documents before the Court. The confidential intelligence documents were in the confidential exhibits admitted subject to the orders made in the terrorism intelligence application.

In relation to the information in these intelligence documents, very great care was required in determining what weight should be given to that material. There were a number of reasons for this, which can be illustrated by the NSW Corrective Services Intelligence Reports.

First, some of the NSW Corrective Services Intelligence Reports were partially redacted in the copy in evidence. These redactions meant that the full import and context of the information relied on could not be assessed and, as a result, the weight to be accorded to that evidence was reduced.

Secondly, neither the sources of the information nor the compilers of the intelligence could be tested by cross examination or otherwise. Consequently, the weight that could be attributed to the information was further reduced.

Thirdly, the reports themselves recognised that the source or sources of the reports were not necessarily reliable and the information provided might not necessarily be true. This was made manifest in the NSW Corrective Services Intelligence Reports by the fact that those reports included one or more evaluations using the “Admiralty Code” (AC) which addressed the reliability of the source and the validity of the information. The code or rating system used was explained in the reports as follows:

The AC ratings gave an indication, in effect, of factors which would affect the weight that should be given to the information. Consequently, those ratings, along with other matters, such as their contents and date, were taken into account when the Court determined the weight to be given to the intelligence documents. Even where there was no such rating given, the factors of both the likely reliability of the source and the validity of the information were matters taken into account, to the extent that they could be ascertained or estimated.

It is not necessary to set out here in detail all of the relevant material in the NSW Corrective Services Intelligence Reports and other intelligence documents. It is sufficient to note that this material included intelligence such as the following, by way of some limited examples (and without attempting to be exhaustive):

Throughout the defendant’s time in custody there were NSW Corrective Services Intelligence Reports referring to the defendant being involved in converting or attempting to convert other inmates or staff to the Islamic faith and other activities related to his religious beliefs. Some of the cases were alleged to have involved violence in pursuit of conversions or participation in religious activities.

I considered the intelligence documentation very seriously and took into account its nature as “intelligence” rather than purporting to be direct evidence of the commission of offences or similar conduct. I determined the weight to be given depending on the nature of the information recorded, the AC rating where relevant, and the other circumstances of each report, as outlined above.

There was, however, in this case, a substantial amount of other evidence in addition to the intelligence documentation. In these circumstances, I also considered whether the information in the intelligence documentation supported or contradicted what was established by the other evidence. My conclusion was that there were no matters of consequence where the substance of the information in the intelligence documentation was inconsistent with, or contradicted, the findings available based on the other evidence. Indeed, I found that the intelligence documentation, although it should be given only limited weight, for the reasons I have explained, confirmed not only the findings made based on the other evidence but also the ultimate conclusions reached in this matter.

In particular, the intelligence documentation supported, or provided confirmation of, the following findings made:

The final, but nonetheless very significant, matter considered under the heading “any other information that is available as to the likelihood that the offender will commit a serious terrorism offence” was the defendant’s associations. It was established on the evidence that the defendant associated with the following persons:

The defendant’s association with Mr Khalid, Mr Osman and Mr Al-Talebi have been referred to above when the 2 November 2014 gaol visit was considered. It can be noted, however, that these three men’s visits to the defendant while he was in custody were not limited to the visit on 2 November 2014. They visited the defendant three, four or five other times in 2014.

It has already been found that the defendant associated with Mr Alqudsi when he was photographed with him during the 2012 protest in the Sydney CBD.

In addition, Mr Alqudsi was convicted on seven counts of performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities in that country, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Adamson J’s remarks on sentence in relation to Mr Alqudsi are recorded in R v Alqudsi [2016] NSWSC 1227. Subsequently, a number of the young men were also convicted of offences contrary to s 6(1)(a) Crimes (Foreign Incursions and Recruitment) Act, see for example R v Biber [2018] NSWSC 535 and R v Musleh (No 5) [2018] NSWSC 1927.

It was significant that it was the defendant who provided to Mr Alqudsi, on 13 June 2013 by text message, the names and telephone numbers of young men who were to travel to Syria for the purposes of engaging in armed hostilities there.

Throughout the second half of 2013, the defendant had a large number of telephone conversations with Mr Alqudsi concerning men who might and did travel to Syria and the defendant’s role in and contribution to those arrangements. These calls were intercepted and recorded. Adamson J, in her sentencing remarks in relation to Mr Alqudsi, noted that one conversation included coded references to a “soccer game” and a “soccer club” relating to travelling to Syria and engaging in armed hostilities there. During the conversation, there was discussion about the defendant’s role in this regard as follows:

In another conversation between the defendant and Mr Alqudsi, the defendant explained how he had taught one of the young men how to behave and the conversation continued:

On 6 July 2013, Mr Alqudsi also depended on the defendant for his opinion as to whether one “boy” would be ready if Mr Alqudsi “sen[t] him next week” and whether the defendant had tested another of the young men before.

On 27 August 2013, the defendant and Mr Alqudsi had a conversation in which the defendant said that he was going to obtain $3,000.00 from another person, and offered that money to Mr Alqudsi. In response, Mr Alqudsi said “You keep the money with you” and “I only want the money to be with you”. The conversation also included:

On 15 September 2013, there was a telephone conversation between the defendant and Abu Bilal in which the defendant spoke of a boy who was going through “a bit of issues himself and he looks up to [the defendant] like a father figure”.

On 8 October 2013, there was a further conversation between the defendant and Mr Alqudsi in which funds were discussed in the general context of the young men in Syria. Contact between the defendant and Mr Alqudsi continued in October and after.

On 7 November 2013, there was a telephone conversation between the defendant and Mr Alqudsi apparently concerning the location of one of the young men who had gone overseas. Mr Alqudsi said to the defendant:

From this material, an appreciation was gained of the very significant ability of the defendant to influence young men and encourage them to engage in activities justified on the defendant’s understanding of Islam.

Mr Al-Ahmadzai was involved in the commission of the index offence with the defendant. In addition, Mr Al-Ahmadzai’s other activities and associations with the defendant included the following:

Furthermore, on 22 August 2014, Mr Al-Ahmadzai was sentenced for an offence of threatening serious harm to a Commonwealth official contrary to s 147(2)(1) of the Criminal Code. It should be noted, however, that this was not relevantly a terrorism offence, but involved the use of a carriage service to menace and harass an official. On 20 February 2015, a yard search at Goulburn Correctional Centre identified newspaper clippings commenting on Islamic State activities in Mr Al-Ahmadzai’s “yard bag”, the subsequent confiscation of which prompted Mr Al-Ahmadzai to call “Takbir” and raise his arm skyward, followed by inmates responding “Allahu Akbar” in unison. On 28 August 202, Mr Al-Ahmadzai also wrote to Mr Atai in response to this incident and stated: “I’ll shed my blood for this din.”

While considerable care was taken in assessing the weight to be given to this material, it could not be given no weight and it was consistent with conclusions derived from other evidence. Having regard to the evidence as a whole, it was apparent that Mr Al-Ahmadzai was a man who had a close association and connection with the defendant, and who was also someone whose views and activities were consistent with support for violent extremism associated with a particular understanding of Islam.

Mr Raad was the defendant’s co-offender in the whipping offence. On the evening of the whipping offence there were text messages exchanged between Mr Raad and the defendant discussing the “right material” for the whipping, and conversations which mentioned Sharia law as well as the appropriate number of lashes to be administered. These communications indicated that Mr Raad shared the defendant’s belief that it was appropriate to impose a religious punishment on the victim in accordance with Sharia law, as the defendant then understood it.

In July of 2014, Senior Constable Danny El Helou observed a news segment about a propaganda video produced by Islamic State on the internet, in which he recognised Mr Raad as one of the speakers. In this video Mr Raad was dressed completely in black and seated next to what appeared to be an AK-47 assault rifle. This video apparently depicted Mr Raad making comments inciting religious hatred, including antisemitism and calling for other to join in violent Jihad, in accordance with his understanding of Islam. In a police intelligence report of 10 July 2014, it was reported that Mr Raad was killed in Iraq whilst fighting for ISIS.

While, once again, the weight to be given to this material was reduced given its nature, it suggested that Mr Raad, as a young man in his early twenties, was influenced by the defendant as a mentor in relation to Islam, as the defendant understood it at the time of the whipping offence, and he went on to advocate support for terrorist acts and violent extremism and was apparently committed to supporting Islamic State or one of its emanations to the extent of fighting and dying for such an organisation overseas. These conclusions were consistent with other evidence concerning the defendant and his ability to influence younger or vulnerable persons.

Mr Naizmand’s association with the defendant apparently involved a visit on 22 February 2014 to the defendant in custody. Mr Naizmand then visited the defendant again on 5 April 2014, 18 May 2014, 22 June 2014 and 31 January 2015.

On 5 March 2015, the Federal Circuit Court made a Commonwealth Control Order pursuant to s 104.14 of the Criminal Code in respect of Mr Naizmand. On 30 November 2015, an interim control order was imposed on Mr Naizmand after the Court was satisfied on the balance of probabilities that making the Control Order would substantially assist in preventing a terrorist act. This resulted in Mr Naizmand being subject to a schedule of obligations, prohibitions and restrictions.

Subsequently, Mr Naizmand was convicted of five counts of breaching the interim control order after he accessed, over the course of January and February 2016, Islamic State propaganda material and electronic media depicting or describing explosives, suicide attacks, bombings or terrorist attacks. Following Mr Naizmand’s incarceration, he sought and was granted approval to associate with the defendant in gaol.

While according this material only limited weight, it appeared to me to support the conclusions reached on other evidence concerning the defendant’s willingness to associate with other persons where there was a significant risk of those persons being prepared to engage in terrorist acts and being supportive of violent extremism and terrorist organisations.

Mr Alou’s association with the defendant was limited to a single visit on 31 January 2015 made to the defendant in custody. In the NSW Corrective Services offender visit log, Mr Alou’s relationship with the defendant was recorded as that of a “friend”.

In October 2015, Mr Alou supplied a handgun to the 15-year-old-perpetrator of the fatal shooting of Curtis Cheng at Parramatta on 2 October 2015. As a consequence of this, Mr Alou was sentenced to a term of imprisonment of 44 years with a non-parole period of 33 years expiring in October 2048 for an offence of aiding, abetting, counselling or procuring the commission of a terrorist act against s 101(1) of the Criminal Code.

It was accepted that Mr Alou’s visit to the defendant at Goulburn Correctional Centre occurred about nine months prior to his commission of the offence and there is no evidence to suggest that the defendant had knowledge of Mr Alou’s intention to commit the offence. Nonetheless, the association between the two was relevant, especially in light of all the other evidence, in assessing the risk posed by the defendant.

Mr Atai’s association with the defendant took the form of two visits while the defendant was in custody, which occurred on 5 April 2014 and 23 November 2014. On both occasions, in the NSW Corrective Services offender visit log, Mr Atai’s relationship with the defendant was recorded as that of a “friend”.

Sometime after this, Mr Atai committed three offences: the first was that of aiding, abetting, counselling or procuring the commission of an offence against s 101.1(1) of the Criminal Code, in connection with the shooting of Curtis Cheng; and, the second and third offences involved intentionally making funds available to a terrorist organisation, namely Islamic State, contrary to s 102.6(1) of the Criminal Code. Mr Atai’s non-parole period in respect of these offences expires in September 2044.

Much like Mr Alou’s connection with the defendant, Mr Atai’s association with him was limited to a small number of visits which occurred many months prior to the commission of the serious terrorism offences. Nonetheless, the defendant’s association with Mr Atai was relevant to the assessment of risk posed by the defendant and was consistent with, and supportive of, the conclusions otherwise reached on the evidence.

Mr Hraichie and the defendant exchanged six handwritten letters in June and December of 2016.

On 2 August 2019, Mr Hraichie was sentenced by Johnson J for one offence contrary to the Criminal Code and three offences contrary to the Crimes Act 1900 (NSW). The first set of offences concerned one count of committing acts in preparation for or planning terrorist acts, namely attacks on Australian law enforcement officers in support of Islamic State contrary to s 101.6(1) of the Criminal Code, which occurred between 1 November 2015 and 19 May 2016, and one count of intentionally delivering to an officer of NSW Corrective Services a letter threatening to kill the Commissioner of NSW Corrective Services, knowing the contents of that document, contrary to s 31 Crimes Act 1900 (NSW), which occurred between 1 April 2016 and 20 May 2016. The second set of offences occurred on 7 April 2016 while Mr Hraichie was in Mid North Coast Correctional Centre and consisted of one count of wounding with intent to murder and one count of causing grievous bodily harm with intent contrary to ss 27 and 33(1)(b) of the Crimes Act 1900 (NSW). For all four offences, Mr Hraichie was sentenced to total effective sentence of 34 years’ imprisonment with a non-parole period of 29 years expiring in 2047.

The offences Mr Hraichie committed on 7 April 2016 are also significant as they apparently occurred in response to the victim making disrespectful comments about Islam, including that he had killed Muslims during a deployment overseas.

Furthermore, while Mr Hraichie remains in custody, after the defendant was released from custody, he sought permission to visit Mr Hraichie’s father in hospital.

The communications between Mr Hraichie and the defendant as well as the concern for his family establish the existence of a personal association between them. While only limited weight should be given to the material concerning Mr Hraichie, the fact of the defendant’s association with him indicated that this association was relevant to, and supportive of the conclusions otherwise reached as to, the assessment of risk in relation to the defendant.

Mr Lawrence is presently serving a term of imprisonment for two counts of intimidating a police officer in the execution of duty, which is due to expire on 28 July 2021. Furthermore, on 21 August 2019, Mr Lawrence was the subject of orders, following a preliminary hearing under the THRO Act before Fullerton J, appointing a psychologist and psychiatrist to conduct examinations of him, as well as committing him for 28 days under an interim detention order.

Mr Lawrence has also been the subject of investigations conducted by the NSWPF, which have included the installation of listening devices in his prison cell. One of these conversations from May of 2017 included the following words spoken by Mr Lawrence:

On 7 May 2019, Mr Lawrence was also recorded in an exchange with his cellmate stating the following:

In July of 2017, Mr Lawrence’s phone was seized and found to contain some concerning material, including text messages concerning his possession of various firearms, drug dealing and that he always carried a firearm on his person “ready to blast.”

In November 2019, Mr Lawrence and the defendant were involved in an incident in custody, which arose after it was allegedly discovered that religious books on Islam in the facility had been thrown out, that resulted in an inmate protest.

On 14 November 2020, Mr Lawrence had a telephone conversation with his former partner Ms Mariam Tangaroa, in which they discussed plans for their children as well as the defendant’s imminent release from custody. In this conversation, Mr Lawrence made clear to Ms Tangaroa his desire for the defendant to have a presence in their children’s lives in case anything ever happened to him. Mr Lawrence stated that the defendant could assist Ms Tangaroa in looking after the children, and that he could pass on the defendant’s number to her in order to facilitate this if she wished.

It was apparent that Mr Lawrence was a man who advocated support for terrorist acts and violent extremism, and that Mr Lawrence looked up to the defendant and had such respect for him that he sought for him to play a role in the life of his children and assume responsibility for them in case of his death.

Once again, while caution was taken in considering this material, it was consistent with, and supported, other conclusions reached based on different evidence concerning the risk posed by the defendant.

The defendant addressed, individually and in some detail, the above associations identified by the plaintiff. The thrust of these submissions was that these associations could not in the future constitute a significant risk arising in relation to the defendant because all these associates were either incarcerated, subject to control or supervision orders, or dead.

While many if not all of the defendant’s associates identified above might be in custody, under supervision, or deceased, there remained a problem with this submission. It was based on a misunderstanding of the nature of the risk in this case. What the defendant’s prior associations demonstrated was the defendant’s willingness to associate with, and mentor or influence, those who have beliefs and commitments which lead them to commit, or support the commission of, terrorist acts or to support terrorist organisations and violent extremism. This established that the defendant posed a considerable risk also of converting, supporting, encouraging, mentoring or influencing other persons with whom he might come into contact:

This serious future risk posed by the defendant in the present case arose out of his personality, beliefs and his past conduct of associating with the persons identified above. Those who might be most susceptible to the defendant’s influence were younger or vulnerable persons whom he might in future meet and interact with in same manner in which he has interacted with his prior associates.

There was also evidence of a number of telephone conversations which the defendant had with family members. None of those conversations contained material which contradicted any of the findings made elsewhere in these reasons for judgment. Generally, those conversations were equivocal or were consistent with the findings made and supported the existence of risks of the type already identified.

The defendant adduced affidavit evidence from Mr Fearn and Mr Christmas, who were men aged 62 and 49 respectively and who lived in the same block of units as the defendant after he was released from custody and while he was subject to the ISO.

Mr Christmas said after meeting the defendant on 14 January 2021 for the first time that:

On being told the next day that, in order to be able to speak to the defendant, he needed to be vetted, Mr Christmas said that he “nearly fell off [his] chair”. Approval for the defendant to associate with Mr Christmas was given on approximately 11 February 2021. At that point, Mr Christmas started a petition and tried to get signatures from people in the unit block so that they could speak to the defendant. He approached approximately six people to sign the petition but stopped doing so because everyone he asked said they did not want to let the government know that they might be supporting the defendant. Finally, Mr Christmas said:

Mr Fearn’s evidence was to a similar effect in that after first meeting the defendant, Mr Fearn’s reaction was that they had hit it off straight away so he knew he wanted to become friends with the defendant. Eventually, the defendant was given permission to associate with Mr Fearn. His evidence also contained the following:

These two men had known the defendant for about one month or less.

This evidence illustrated the charismatic and engaging aspects of the defendant’s personality, as well as being consistent with the observation in PRISM report dated 12 November 2018 prepared by the psychologists Matthew Wade and Stephanie Scott-Smith that:

Rather than assist the defendant’s case, this material suggested that the defendant’s ability to engage with, influence and persuade persons who might be young or vulnerable was very significant. When this ability was associated with beliefs or commitments which included violent extremism and violent Jihad, on the defendant’s understanding of Islam, there was a heightened risk that the defendant could influence such persons to commit or support the commission of terrorist acts or to support terrorist organisations.

In reaching conclusions concerning the assessment of risk, all of the relevant factors identified in s 25(3) were taken into account in light of all the evidence that was before the Court, with caution being exercised in relation to the material that deserved little or no weight. The assessment of risk in the present case did not involve a process of syllogistic reasoning. As noted above, it involved an evaluative judgment to be made having regard to the matters identified in s 25(3) of the THRO Act and any other relevant information.

The matters and information taken into account, with the help of the written and oral submissions of the parties, have been referred to in the paragraphs above at some length. It is sufficient to note, in summary form, that the evidence viewed as a whole established, inter alia, that:

The evidence established that the principal future risk posed by the defendant was not that he would himself engage in a terrorist act in contravention of s 101.1 of the Criminal Code, although that possibility could not be ruled out. Rather, it was that the defendant would commit a serous terrorism offence, as defined in the THRO Act, by, for example and without attempting to be exhaustive:

The likelihood of the risks coming to fruition, if the defendant were at liberty and not subject to an ESO, and the very serious potential consequences if some of those risks actually materialised before the events could be prevented, taken together, established that the community would not be adequately secure from harm if the defendant were not subject to an ESO. In this regard, the safety of the community was required to be the paramount concern, by virtue of s 25(2) of the THRO Act. In all the circumstances, it was accepted that the relevant future risk posed by the defendant was “unacceptable” within the meaning of s 20(d) of the THRO Act.

Accordingly, having regard to the evidence as a whole and the findings set out in these reasons for judgment, the Court was satisfied to a high degree of probability that in the circumstances of the present case the defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.

In light of Dr Ellis’s evidence, it was accepted that a period of two years was appropriate for the term of the ESO.

The hearing in this matter did not end until the evening of the day before the ISO was due to expire. In these circumstances, the parties did not have the opportunity to make submissions on the appropriate conditions to be included in an ESO, if the Court determined that such an order should be made. As a result and given the conclusion that an ESO should be made, the conditions previously imposed under the ISO were continued in their then current form and orders 3 and 4 were included in the orders. By orders 3 and 4, the defendant was given the opportunity to seek to have the conditions varied within a relatively short time and a timetable was set for the preparation and hearing of such an application.

For all of these reasons, the orders set out above were made on 27 February 2021.